Canadian Union of Operating Engineers and General Workers v. Burlington Golf & Country Club Limited, 1996 CanLII 11118

[1996] OLRB Rep. July/August 505

1784-95-R; 1786-95-U Canadian Union of Operating Engineers and General Workers, Applicant v. Burlington Golf & Country Club Limited, Responding Party

BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members R. Al. Sloan and P. V Grasso.

APPEARANCES: R. Graerne Aitken, Zoran Grgar and Elizabeth Ward for the applicant; Al. D. R. O'Brien, Stephanie Vaccari and Bernd Klahre for the responding party.

DECISION OF RUSSELL G. GOODFELLOW, VICE-CHAIR, AND BOARD MEMBER P. V. GRASSO; August 12, 1996

1. These matters arose as an application for certification under section 9.2 of the former Labour Relations Act, and an application under section 91 of that Act alleging a breach of sections 65, 67 and 71 [now sections 70, 72 and 761.

2. Although hearings had recently concluded, a final decision had not been released prior to the repeal of the Labour Relations Act and the proclamation of the Labour Relations Act, 1995. Accordingly, in written correspondence with the Board, the parties were invited to make submissions as to whether the new Act applied and, if so, as to the nature of its effects. In submissions dated January 19 and 24, 1996, the respondent took the position that the applications were subject to the new Act and that the Board was required to apply the new section II rather than the old section 9.2. The applicant took the opposite position.

3. Having regard to our findings of fact and our interpretation of the relevant provisions of the new Act, we are prepared to accept, without deciding, that these applications are now subject to the provisions of the Labour Relations Act, 1995 (the "Act").

4. Section 11 of the Act, states in part:

5. (1) Upon the application of a trade union, the Board may certify the trade union as the bargaining agent for the employees in a bargaining unit in the following circumstances:

6. An employer, employers' organization or person acting on behalf of an em­ployer or employers' organization has contravened the Act.

7. the result of the contravention is that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about

being represented by the trade union.

3. No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.

4. The trade union has membership support adequate for the purposes of collec­tive bargaining in a bargaining unit found by the Board to be appropriate for collective bargaining.

(3) The Board may consider the results of a representation vote when making a decision under this section.

Sections 70, 72 and 76 state:

70. 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.

71. 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.

76. 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.

Facts

5. The applicant commenced an organizing campaign of the respondent's employees on or about May 18, 1995. It appears that a number of employees had become dissatisfied with their working conditions and were looking for a way to improve them. One of the employees obtained the union's name from the telephone book and arranged a meeting with union officials at Chaps Restaurant in Burlington. The meeting was attended by the union's Business Manager, Zoran Grgar, its Business Agent, John Clark, and five employees. At the conclusion of the meeting, four of the employees agreed to become organizers and all five signed cards.

6. After the meeting, the four employee organizers began to solicit other employees for membership. It appears from the dates on the applications for membership filed with the Board that 44 cards were signed in the first 12 days of the campaign, between May 18 and May 30, and three more cards were signed on June 4, 14 and 18, 1995. There then followed a break of approximately two weeks before individual cards were signed on July 3, 6, 9, 17, 20 and 22, 1995.

7. The application for certification was filed on August 8, 1995. It was accompanied by 53 applications for membership. The bargaining unit agreed upon between the parties contained 87 employees on the application date. After discounting the cards that did not correspond to employees in the bargaining unit, the union's level of membership support was 54.5%.

8. The Board heard considerable evidence concerning the operations of the Club from its General Manager, Bernd Klahre. The Club is private. It has between 1250 and 1300 members. A majority of the members are golfers. There are also social and curling members. Mr. Klahre reports to a Board of Directors. The Board of Directors consists of Club members. Reporting to Mr. Klahre are a number of management employees. These employees, together with members of the bargaining unit, generally work in one of three areas: the Clubhouse, the Greens Department, or the Pro Shop. At the time of the application for certification, there were 53 or 54 employees in the agreed upon bargaining unit working in the Clubhouse, 24 or 25 in the Greens Department, and eight or nine in the Pro Shop. The Greens maintenance building and the Pro Shop are separated from the Clubhouse by a public roadway and, in the normal course, employees working in the three areas have little opportunity for interaction.

9. The possibility of a union organizing campaign became known to management sometime in late May. The respondent's Building Supervisor, Greg Krupay, testified that he was advised by his aunt, who is also an employee of the Club, that "a union was" trying to organize the place", that it was "trying to collect signatures", that she "had been approached to sign a card", and that "Liz Ward was behind it". Elizabeth Ward works as a bartender and was characterized by more than one witness as the lead inside organizer. Mr. Krupay immediately relayed this information to Terry Kent, the newly hired Clubhouse Manager. According to Mr. Krupay, Ms. Kent was "surprised", indicated that she could not "believe it", and said that she was "going to have to call Bernie [ie. Mr. Klahre] right away."

10. Ms. Kent testified that she was not surprised to learn of Ms. Ward's involvement in the union because "she's a strong woman and would likely be a leader in that type of thing". She said that she immediately telephoned Mr. Kiabre, who, in his evidence, recalled receiving this call over the Victoria Day weekend (ie. May 20-22). Mr. Klahre testified that he advised Ms. Kent "not to worry" and that they would discuss the matter when he got in the next day.

II. Following the subsequent conversation with Ms. Kent, and over the course of the next several days, Mr. Klahre inquired of a number of employees whether they were aware of the union organizing campaign. Mr. Klahre also "phoned around to get some advice" and, "loosely, issued some instructions to people not to do anything to upset the apple-cart". In cross-examination, Mr. Klahre indicated that the employees to whom he spoke had heard rumours about the union, but none had been approached to sign cards. Accordingly, Mr. Klahre testified, he put the matter out of his mind.

12. On June 2, 1995, Ms. Kent held a meeting with Clubhouse employees. The union character­ized this meeting in its evidence as an "emergency" meeting. Although the employer disputed this characterization, the meeting appears, at minimum, to have been hastily called. George Abbott is a member of management who gave evidence on behalf of the employer. At the time of the June 2 meeting, Mr. Abbott held the position of Member Services Supervisor. In that capacity, Mr. Abbott had approximately 20 Clubhouse employees reporting to him. Under cross-examination, Mr. Abbott testi­fied that Ms. Kent came to him on June 2, indicated that a meeting was going to be held upstairs in the main dining room and directed him to send as many employees as he could "afford to let go". Mr. Abbott also testified that Ms. Kent told him that the meeting "was to be about an employee association".

13. Ms. Kent later testified that she could not recall having advised Mr. Abbott that the meeting was to be about an employee association and suggested that he may have been "confused". Ms. Kent said that the purpose of the meeting was to address employee dissatisfaction that had been expressed in training sessions held over the preceding few days. The majority prefers the evidence of the apparently more dispassionate and less directly involved Mr. Abbott to that of Ms. Kent. Mr. Abbott also testified in cross-examination that he sent everyone to the meeting who was working at the time and that he could not recall a meeting having been called in this manner in the past. All employees who were at work in the Clubhouse that day were directed to attend. This included the four trade union organizers and approximately 13 others. The meeting lasted for approximately 45 minutes. All employees were paid for their attendance.

14. Ms. Kent began the meeting by discussing the recent wage increases. She explained that the reasons for any increase, or lack thereof, were individual in nature and could be obtained from the employees' supervisors. She then asked whether any of the employees wished to contribute to the discussion and received only a limited number of responses. Towards the end of the meeting, Ms. Kent indicated that Mr. Klahre had "a good idea that you might wish to consider" - the formation of a "staff association". She said that this might enable employees to bring their concerns directly to management and have those concerns shared with the Board of Directors.

15. The idea of the staff association was not warmly embraced. At least two employees spoke out against it, one of whom indicated that the Board of Directors would be unlikely to take the employees seriously. At the conclusion of the meeting, however, Ms. Ward approached Ms. Kent, thanked her for the suggestion and agreed that the association may be an alternative to the existing situation. According to Ms. Kent, Ms. Ward also suggested that the idea be put in writing. Ms. Ward recalled that this suggestion came from Ms. Kent and that she merely agreed.

16. In any event, on June 8, 1995, the following letter appeared in the employees' pay envelopes:

Dear Staff Member: June 8, 1995

In our efforts to provide our membership with a first class Golf & Country Club and to establish ourselves as the Club of choice for new members it is essential that all staff are part of our team.

To be successful in our quest for excellence everyones [sic] ideas and concerns must be heard. We need the means to have effective two-way communications between staff and management and through the General Manager with the Board of Directors.

I therefore would suggest that a Staff Association be established to enable us to dialogue success­fully. It will get staff involved in the decision making process to find solutions to such issues as scheduling, compensation/benefits, award programs, seniority/layoffs.

Burlington Golf & Country Club would provide the necessary assistance to establish such an Association.

Please indicate your preference below, detach and leave the questionnaire in confidence with Gail or Carolyn before June 19th 1995.

Please participate in this exciting opportunity.

Thank you

"BERND KLAHRE"

Bernd Klahre,

General Manager

BK/gs

Do you wish to have a Staff Association 7

Yes ____________ No ____________

17. In cross-examination, Mr. Klahre indicated that the timing of this letter was influenced by Ms. Kent's meeting with her staff and Ms. Ward's encouragement. He denied that it had anything to do with the union organizing campaign. Mr. Klahre testified that the idea of an employee association had originated with the Chairman of the Club's Compensation Committee, Allan Taylor. Mr. Taylor testified that he first raised the subject of a staff association with Mr. Klahre in April and discussed it with him in a number of subsequent meetings. (Mr. Klahre recalled that the first meeting may have occurred as early as February). According to Mr. Taylor, the Compensation Committee had sensed a lack of morale among employees in the Club, which Mr. Taylor attributed to poor communication with management. As a result, sometime in April, Mr. Klahre had been instructed by Mr. Taylor to prepare and circulate among employees a questionnaire that would gauge their interest in the formation of a staff association.

18. Karen Thombs is a waitress and another of the four employee organizers. She testified that, following the meeting of June 2 and the letter of June 8, organizing became more difficult. She said that employees became increasingly unwilling to discuss the union or to sign cards.

19. On the evening of June 8, the organizers met with Mr. Grgar and provided him with a copy of the employer's letter. They also advised him of their belief that employees were becoming reluctant to sign cards because of the employer's initiatives. Accordingly, on June 9, the union put the employer on written notice that an organizing campaign was underway and, in due course, an application for certification would be filed. The union's letter also outlined the unfair practice provisions of the Act and indicated that "charges" would be brought before the Board in the event of any violations.

20. Mr. Klahre testified that, around this time, relations between staff and management deterio­rated and complaints from members increased. Mr. Klabre also testified that he received approximately 20 replies in response to his June 8 letter. Of these, all but one or two supported the formation of a staff association. The Greens Department, in particular, took to the idea. Approximately eight Greens employees signified their support for an association.

21. On June 16, 1995, the union sent a letter to employees who had signed membership cards. The letter was signed by Mr. Grgar and included a copy of the Ministry of Labour's "Fact Book for Employees Regarding the Labour Relations Act". The letter advised employees that the campaign was going well and that an application for certification would soon be made. The letter pointed out certain alleged benefits of unionization and advised employees not to be "fooled" by the employer's "cheap ploy" of a staff association.

22. On June 30, 1995, the employer distributed the following letter to employees through their supervisors:

TO OUR EMPLOYEES:

We have been advised by the Canadian Union of Operating Engineers and General Workers that it has begun a drive to unionize the employees of Burlington Golf & Country Club Limited. In view of this development, we would now like to take the opportunity to address you on this subject:

The Labour Relations Act governs the procedures and actions of both management and union in these circumstances and it provides among other things, that:

(a) where no trade union has been certified as a bargaining agent of the employees of an employer in a unit that a trade union claims to be appropriate for collective bargaining the union may apply at any time to the Ontario Labour Relations Board for certification as a bargaining agent of the employees in the unit.

(b) if 55% of the employees in a bargaining unit sign membership cards, the union will probably be certified automatically by the Board without a vote of the employees in the unit. If 40% but less than 55% of the employees sign up then there would be a representation vote to determine if more than 50% of the employees want unionization.

We are attaching to this note a photocopy of certain sections of the Labour Relations Act under the heading "Unfair Practices". This is being attached so that each of you will understand what actions are permitted by management, fellow employees and union representatives in the circumstances. I specifically refer you to Sections 65, 67, 71 and 72. Section 71 is particularly important as you will see that no person, trade union or employer's organization is permitted to intimidate or coerce you to become or refrain from becoming a member of the union.

Burlington Golf & Country Club Limited has a long tradition, having been established in 1922 and as you know, is one of the most prestigious clubs in our area.

The Club, its management and staff, have always functioned at a most professional level. The management has always valued its relationship and goodwill with its employees and expect that this will continue no matter what the outcome is with reference to this effort to unionize.

Just because there is an effort to unionize going on does not mean that you cannot communicate with management. We would be pleased to discuss any issues of concern that you may have and seek alternate solutions if you so wish. Our letter to you of June 8, 1995 is an alternative for your consideration.

As we are all aware, unionization has its pros and cons. Over the years, we have enjoyed a fine relationship with our employees. In the event that you choose to be unionized, then the Labour Relations Act provides that the trade union is recognized as the exclusive bargaining agent of the employees. Traditionally, the Club has always been run with a family-like atmosphere. We have always dealt with you and you with management on an individual basis and it seems that we have been able to deal with our business and problems quite successfully on this more personal basis.

We believe that unionization will certainly depersonalize our working environment and will cause our Club to be run in a different fashion in some respects, which we do not think is necessarily for the better. We, the management, enjoy the working environment that the Club provides, believe it to have been successful in the past and that it will continue to be successful in the future. We would ask that this be taken into consideration when deciding whether or not you wish to be represented by a union.

Yours truly,

"BERND KLAHRE"

Bernd Klahre

General Manager

Mr. Klahre testified that he had been experiencing an increasing sense of frustration over the tensions and uncertainty surrounding the organizing campaign. He said that the June 30 letter was prompted by his desire to "get on with the running of the club".

23. Throughout the organizing campaign, the four employee organizers continued to meet with Mr. Grgar and/or Mr. Clark. Mr. Grgar recalled that there were about eight such meetings, one of which occurred in the last week of June or the first week of July. Prior to this meeting, the union's organizing campaign had focused on the Clubhouse. At that meeting, the employees decided to approach members of the Greens Department and the Pro Shop. Thereafter, and at the request of a Greens Department member, a meeting was arranged for July 13 at Chaps restaurant between members of the Greens crew, the inside organizers, and Mr. Grgar.

24. Two days prior to the meeting, Mr. Klabre approached the members of the Greens Depart­ment. According to Mark Gillis, a member of the Greens crew who was called to testify on behalf of the employer, other Greens employees had informed Mr. Klahre of the upcoming meeting with the union and Mr. Klabre had asked one of the two Greens supervisors, Paul Scenna, to tell employees that he wanted to meet with them. Although lacking a specific recollection, Mr. Klahre testified as to his belief that the meeting arose at Mr. Scenna's request rather than his own. Mr. Scenna was not called to testify by the employer to support Mr. Klahre's belief.

25. The meeting with Mr. Klahre was attended by all Greens employees who were at work on July II, including the two supervisors. It took place at the 10:00 am. "lunch" break. Although Mr. Gillis could not recall the precise duration of the meeting, he thought that it lasted for less than 45 minutes. Mr. Gillis testified that Mr. Klahre informed the employees about "what's been happening with the union and the staff association" and "more or less told us to keep an open mind and not to jump into anything". Mr. Gillis also said that employees "asked questions about wages and things like that". Mr. Klahre testified that he told employees that they had the right to unionize and that he could only ask them to make "an informed decision".

26. The July 13 meeting at Chaps was attended by six members of the Greens crew, including Mr. Gillis. Mr. Grgar testified that Mr. Gillis and at least two others initially expressed some interest in joining the union but indicated that they wished to take time to consider it. Mr. Gillis testified that he said only that he would think about it and would get back to the union if he was interested. No cards were signed at the meeting and none were given out. Afterwards, Mr. Gillis reported on the meeting to the second Greens Department supervisor, Rick Buttenham.

27. Following the July 13 meeting with the union, all the Greens Department employees presented Mr. Klahre with a letter formally indicating their support for a staff association. In response, Mr. Klahre advised the employees that the creation of an association was not "something for manage­ment to do" but was "up to them". He did, however, indicate that the Club would provide the employees with a meeting room. Members of the Greens crew then sought and obtained permission from manage­ment for the posting of a notice in the workplace indicating that a meeting would be held in the "Northshore Room" on July 25 to discuss the formation of the association.

28. Prior to the July 25 meeting, on July 20, Mr. Klahre distributed the following additional letter to employees:

TO OUR EMPLOYEES:

Over the last two to three months, efforts have been made to unionize our employees. This has unfortunately caused some strain in our normal amicable relationship with staff and also amongst employees themselves.

We are advised that there is considerable interest in forming an Employee's [sic] Association as opposed to proceeding with formal unionization. If this is so, we would be pleased to meet with your representative(s), and provide a meeting room from time to time should they so require.

For the general welfare of the Club we feel it is important to establish a method of communication and discussion as soon as possible.

Best regards,

"BERND KLAHRE"

Bernd Klahre

General Manager

29. Also prior to the July 25 meeting, on July 21, Ms. Ward was tending bar in the Clubhouse. At about 12:37 she asked one of the wait staff to mind the bar while she went to the washroom. After going to the washroom, Ms. Ward proceeded to her locker where she obtained a union card and a pen. From there, Ms. Ward went to the lunchroom to look for another employee, Heather Harris. When Ms. Harris could not be found at that location, Ms. Ward proceeded outside and found her at the picnic table eating lunch with another employee. Discussion ensued about the union, ending in Ms. Ward leaving the card and pen with Ms. Harris and returning to the Clubhouse.

30. Upon re-entering the Clubhouse, Ms. Ward was confronted by Ms. Kent and Mr. Krupay. Apparently, Mr. Krupay had observed Ms. Ward at the picnic table and had overheard her discussing the union. Although Mr. Krupay is not Ms. Ward's supervisor, he perceived Ms. Ward's conduct to be sufficiently "unusual" to warrant an immediate report to Ms. Kent. Ms. Kent testified that she was disappointed in Ms. Ward's behaviour because she was "not where she was supposed to be" and, instead, was attempting to persuade a fellow employee to sign a union card. She felt that Ms. Ward's behaviour was having an adverse effect on the delivery of proper service at the Club. Ms. Kent expressed the view that employees, such as Ms. Harris, should be free from "this type of thing" while at work. Although unable to provide any specifics, Ms. Kent also believed that this was not the first time organizing had occurred on company time and company property and, on this occasion, she was going to put a stop to it.

31. The Board heard two versions of what occurred between Ms. Kent and Ms. Ward. Without reviewing this evidence in detail, suffice it to say that Ms. Kent accused Ms. Ward of conducting union business on company time and company property and advised her that such conduct was "against the law". Although Ms. Ward denied in her own evidence that she admitted to Ms. Kent that she was "aware of that" and, in effect, to having engaged in such conduct, we are satisfied that Ms. Ward either knew or ought to have known that she should not have been away from the bar engaging in non-work related activity.

32. After the exchange on the staircase, Ms. Ward returned to her work-station. She testified that the total elapsed time from her departure to her return was approximately 13 minutes. She said that when she left the lounge there had been three tables occupied by a total of 11 members. By the time of her return, one of the tables had been vacated. Throughout the period of her absence two waitresses had been present to serve the members and both knew how to "work the bar". Ms. Ward also testified that it is common practice for waitresses to cover the bar while the bartender takes a break.

33. In cross-examination, Ms. Kent acknowledged that, prior to confronting Ms. Ward, she did not check to see whether Ms. Ward was on a break, whether anyone was covering for her, or whether there had been any adverse effect on service as a result of her departure.

34. Following the exchange with Ms. Ward, Ms. Kent proceeded outside to speak to Ms. Harris and the other employee. She wanted to ensure that they understood that any discussion of union business on company time was prohibited. Ms. Kent then reported the incident to Mr. Klahre, telling him that Mr. Krupay had overheard Ms. Ward soliciting a signature on company time, and that she was not on lunch or an approved break.

35. At about 3:45 p.m., Mr. Klahre summoned Ms. Ward into his office. Ms. Kent was also present. Mr. Klahre handed Ms. Ward a letter and asked her to read it. The letter indicated that, effective immediately, Ms. Ward was being suspended indefinitely. After reading the letter, Ms. Ward said "I guess you would like me to leave now". Mr. Klahre said "yes" and indicated that Ms. Kent and the head waitress would escort her from the premises. The three employees then proceeded to the lounge to pick-up Ms. Ward's glass case and, from there, to the locker room. Only Ms. Ward and Ms. Kent entered the locker room.

36. Ms. Ward testified that, upon entering the locker room, Ms. Kent "started to lecture [her] on unions", indicating that "they used to be useful but aren't anymore". According to Ms. Ward, Ms. Kent said that unions cause problems not only for companies but for employees. Ms. Ward testified that Ms. Kent accused her of having been organizing on company time and company property for some time and indicated that the Club was not going to tolerate it anymore. Ms. Ward added that Ms. Kent said that the Club no longer wanted people like Ms. Ward around.

37. Ms. Kent denied all of these allegations. She testified that she merely expressed disappoint­ment about the "rifts" that had developed in the Club and regret that "this had to happen". Ms. Kent also admitted that she advised Ms. Ward that her conduct was "against the labour law".

38. In our view, the true version of events probably lies somewhere in the middle. However, in light of the conclusions to which we have come on the the other evidence, we find it unnecessary to resolve this conflict.

39. Following the exchange in the locker room and Ms. Ward's subsequent departure from the premises, Mr. Klahre called two meetings with Clubhouse employees. Each meeting lasted between five to ten minutes and was attended by between six to ten people. The purpose of the meetings was to inform employees that Ms. Ward had been suspended for conducting union business on company time. Mr. Klahre said that he wanted employees to hear it from him first before any rumours started.

40. Mr. Klahre testified that he advised employees that neither management nor the union were entitled to threaten or coerce employees into becoming or refraining from becoming union members, and that if any employee felt threatened or coerced he or she could contact the Labour Board or speak to him or Ms. Kent. Ms. Thombs, who attended the meeting, recalled that Mr. Klabre's comments regarding intimidation and coercion were directed more towards the union than towards management and were followed by the suggestion that anyone who wished to revoke their signature on a membership card could so inform the Board. Although Mr. Klahre specifically denied having made this latter statement, it was substantially confirmed in the evidence of Mr. Abbott. Mr. Abbott testified that Mr. Klahre advised employees that if they felt pressured or coerced they could get their cards back. According to Mr. Abbott, Mr. Klahre said that he was not yet sure how this could be accomplished but employees could speak to Mr. Klahre or to their supervisors and the information would be obtained for them. A majority of the panel prefers the evidence of Mr. Abbott and Ms. Thombs to that of Mr. Klahre on this issue. Mr. Abbott also testified that he could not recall any other employee having been suspended in his seven years of service at the Club.

41. Mr. Klabre testified that the decision to suspend Ms. Ward was his. The reason for the suspension was that Ms. Ward was not at her work-station, that she was conducting union business on company time, and Mr. Klahre's "overall frustration" with the situation. In cross-examination, Mr. Klahre admitted to having conducted no independent investigation of the circumstances. He did not inquire as to whether Ms. Ward had found a replacement while she was away from the bar, indicating his belief that she had no right to do so. Mr. Klahre also admitted to having been unaware of the number of members in the lounge and whether there was any adverse effect on service as a result of Ms. Kent's visit to the picnic table.

42. On July 24, the day prior to the meeting scheduled to discuss the formation of the staff association, Ms. Kent instructed her Assistant Manager to bring in a couple of employees earlier than usual the next day, so as to enable as many employees as possible to attend the meeting. According to Ms. Thombs, Ms. Kent also inquired of a number of wait staff as to whether they were planning to attend, indicating that they would be paid for their attendance if they were already at work or that they could punch-in early and be paid.

43. The meeting was scheduled to commence at 10:00 a.m. It was attended by about 18 people, including Mr. Gillis and Ms. Thombs. Ms. Thombs testified that there was very little said or done for the first part of the meeting, until Mr. Klahre arrived. Mr. Klahre testified that he arrived at work at about 10:20 and was immediately advised by his secretary that the employees would like to see him. Mr. Klahre was unable to say whether this idea originated with his secretary or whether someone had specifically requested his attendance. In any event, upon entering the meeting, Mr. Klahre advised the employees that it was "their meeting", that it had been "called by the Greens", and asked "what they were waiting for". He then presented the idea of a staff association and compared it to a union. According to both Mr. Gillis and Ms. Thombs, Mr. Klahre also expressed the view that employees had attended the meeting because they were interested in forming an association and that this would be a good opportunity for them to elect representatives. It was Ms. Thombs impression that Mr. Klahre "really, really wanted us to elect representatives that day." After delivering these representations, Mr. Klahre left the meeting, indicating that he would be in his office if needed.

44. Following Mr. Klabre's departure, Mr. Gillis asked Clubhouse staff about their problems. After being advised that they were unhappy about such matters as favouritism, wages and workload, Mr. Gillis said that a staff association might be the answer and that management might be willing to compromise. He added that if the staff association did not work out, the employees could still give the union a try.

45. At about 10:55, Mr. Klahre returned. He indicated that the Assistant Clubhouse Manager needed personnel on the floor. He asked whether the employees had resolved anything or elected anyone. Upon being advised in the negative, Mr. Klahre asked whether another meettng would be helpful. If so, he advised the employees that they could be relieved from their regular duties while the Board of Directors served the members. Apparently, the Board of Directors had performed this function on an earlier occasion so as to enable employees to attend a training session. In cross-examination, Mr. Klahre testified that the employees who attended the July 25 meeting were likely paid for their time because "that's what we usually do if we bring them in".

Decision

46. On the basis of the evidence, a majority of this panel is of the view that the applicant should be certified without a vote pursuant to section 11(1) of the Act.

47. Section 11 has four requirements. The fourth requirement is that the union has adequate membership support for collective bargaining in a bargaining unit found to be appropriate by the Board. The unit agreed upon between the parties, and which the Board hereby finds to be appropriate, is:

all employees of Burlington Golf & Country Club Limited in the City of Burlington, save and except Assistant Supervisors, persons above the rank of Assistant Supervisor, golf professionals, Head Chef, Second Chef, office and clerical staff.

48. The requirement of adequate membership support was not present in the former section 9.2 and, accordingly, was not the subject of submissions by the parties at the conclusion of the case. The issue was also not addressed by the respondent in its subsequent written submissions. We take this to be in recognition of the obvious: pursuant to the Board's well-understood case law, 54.5% of the bargaining unit would constitute more than adequate membership support for the purposes of collective bargaining. In our view, the fourth requirement has been met.

49. The first requirement under section 11(1) is that the employer, or a person acting on behalf of the employer, has contravened the Act. The provisions relied on by the applicant are set out above. Broadly speaking they have two aspects. First, the employer, or a person acting on behalf of the employer, must engage in conduct which is variously described as interference, threats, penalties, promises, undue influence, discrimination, intimidation, or coercion with respect to an individual's employment, the selection of a trade union, the representation of employees by a trade union, or as to an individual becoming or refraining from becoming a union member. Second, once the necessary conduct has been established, the employer must satisfy the Board that its conduct was not the product, in whole or in part, of anti-union animus.

50. In this case, we are satisfied that the respondent breached the Act both in promoting the employee association in the face of the union organizing campaign, and in indefinitely suspending the lead inside organizer, Elizabeth Ward.

51. The Board's case law on the subject of employer involvement in the promotion of an employee association as a preferred alternative to a trade union is well-established. The essence of that law is captured in the following passages from the Board's decision in Seven-Up/Pure Spring Ottawa, [1984] OLRB Rep. Jan. 87, relied on by the respondent:

52. The Board's response to employer expressions of preference for an employee association depends on a number of factors. At one end of the spectrum are the cases which find improper interference when the employer responds to a trade union organizing campaign by suggesting to its employees that they should form an employee association: Homeware Industries Limited, supra; and, Zehr's Markets Limited, [1971] OLRB Rep. Oct. 638 (and see W Bolen Enterprises Limited, [1973] OLRB Rep. Jan. 50 where propaganda leading to a termination representation vote was found improper where the employer suggested that an as yet unformed employee association might be an alternative to continued representation by the incumbent trade union). The employer's demonstrated preparedness to deal with a newly formed employee association may constitute improper interference even if the association was initially formed at the suggestion of the employees rather than the employer: Upper Canadian Furniture Limited, supra, where the Board said at paragraph 38:

For an employer to attempt to use his right to free speech to initiate an employee association to compete with a union is not protected by section 56 [now 641 [and now section 70]. Even where an employer does not sow the seed of an employee association, its active support for the association may become a potent form of interference in contravention of section 56 [now 641 [and now section 70] of the Act. Given their economic dependence on their employer, employees may be readily swayed by employer conduct, even where subtle, which indicates support for an association over a competing union.

31. At the other end of the spectrum are cases like Smith Beverages Limited, [1975] OLRB Rep. Dec. 956 and Militronics Limited, [1981] OLRB Rep. Oct. 1435 wherein an employer's express or implied preference for continued collective bargaining with an incumbent employee association was found not to be improper support or undue influence, when the association had trade union status and a history of collective bargaining with the employer. Closer to the first mentioned extreme are cases like Seven-Up (Ontario) Limited, [1970] OLRB Rep. May 198 and Primo Importing and Distributing Co. Ltd., [1982] OLRB Rep. Dec. 1869 and [1983] OLRB Rep. June 959. In Seven-Up (Ontario) Limited, supra, employees responded to a trade union organizing campaign by suggesting that an inactive employee committee be re-constituted or revived. Manage­ment responded by meeting with the revived committee. That action, together with others, was found to constitute undue influence on the part of the employer. In Primo, the employer extended recognition to, and entered into a purported collective agreement with, an employee association in the shadow of the organizing campaign of the trade union there applying for certification. The Association had been formed by the members of an employee committee which had come into existence after the applicant trade union lost an earlier representation vote. The Board found (at [1982] OLRB Rep. Dec. 1869) that the Association and its agreement were tainted by the employer support which the employee committee had received. It further found (at [1983] OLRB Rep. June 959) that the employer's dealings with the Association constituted interference contrary to section 64 [now section 70] of the Act.

32. Here the Association was formed long before the applicant commenced its current organizing campaign. The respondent's past dealings with it were part of its approach to employee relations. Provided it is not done in the shadow of a trade union organizing campaign, an employer may legitimately deal with and, indeed, encourage the formation of an employee committee or associa­tion as a vehicle through which it conducts its employee relations, so long as there is no pretense by either the employer or the Association that the latter is a trade union...

33. In the present case, the respondent attempted to characterize its conduct as falling near the end of the spectrum identified in paragraph 31 of the Seven-Up/Pure Spring Ottawa decision. We cannot accept this characterization. First, we note that the suggestion of an employee association as an alternative to the pre-existing situation or to the trade union originated with the respondent, not the employees. Second, and while there is no evidence to contradict that of Mr. Klahre or Mr. Taylor that the idea of an employee association was first discussed between them in February or April 1995, nothing was communicated to employees until two weeks into the organizing campaign. Given that this communication occurred after 44 Clubhouse employees had already signed union cards and after Ms. Kent, Mr. Klahre and other employees to whom Mr. Klahre spoke at the end of May acknowledged having been aware of at least the possibility of the organizing campaign, Ms. Thombs' belief that the campaign was, by the time of the June 2 meeting, "common knowledge", the passage of time from when the idea of the association first arose and the somewhat unusual circumstances of the June 2 meeting, we find the suggestion in Mr. Klahre's evidence that the association was not put forward, at least in part, in response to the organizing campaign to be highly improbable.

34. Given these same facts and the relative haste with which Mr. Klahre acted in putting together the letter to employees following the June 2 meeting, we do not believe that Ms. Ward's passing encouragement to Ms. Kent had much to do with either the timing or the substance of the employer's June 8 letter or its subsequent conduct. According to the employer's theory of the case, and despite the information supplied only two weeks previously by Mr. Krupay, at the time of the June 2 meeting Ms. Ward was viewed by management as a bartender, not as a trade union organizer. Accordingly, we simply cannot accept the assertion that management's efforts to promote the associa­tion were in any meaningful way aided and abetted by Ms. Ward. In our view, it is abundantly clear from the evidence that the idea of the employee association was the employer's, and the employer's alone, and that it was put forward partially, if not substantially, as a prophylactic against the trade union.

35. In coming to the conclusion that the employer's conduct with respect to the association violated the Act, we note that this behaviour did not end with the June 2 meeting or with the June 8 letter. Rather, it continued for some seven weeks up to and including the meeting of July 25, which began and ended with appearances by Mr. Klahre. Although management was on formal notice throughout this period as to the existence of the organizing campaign, its conduct did not abate. Rather, it delivered two further letters to employees, the first of which refers to the suggestions regarding the association in the June 8 letter as "an alternative" for employees to consider and the second of which identifies "considerable interest in forming an .. .association as opposed to proceeding with formal unionization". This third letter also indicates that management "would be pleased to meet with your representative(s) and provide a meeting room from time to time should they so require", before concluding with the suggestion that this be accomplished "as soon as possible".

36. During this period, Mr. Klahre also held a separate meeting with members of the Greens Department. This occurred at a time when, it is reasonable to assume, the support of the "Greens" must have been understood to be of significance to the organizing campaign and prior to their scheduled attendance at a union meeting. Thereafter, Greens Department employees were able to convey their undivided support for the association to Mr. Klahre, but appeared to need some reminding that its creation was "not something for management to do" but was "up to the employees". Management was, however, prepared to cooperate, at least to the extent of granting permission for the posting of a notice in the workplace, providing a room in which to hold the meeting, taking steps to ensure optimal attendance at the meeting, paying employees for their attendance at the meeting, encouraging employees to elect representatives as soon as possible, and offering a further meeting during which employees could be relieved from their regular duties while the Board of Directors served the members.

37. Even leaving aside for the moment the disparate treatment accorded Ms. Ward's organizing efforts on behalf of the union, a majority of this panel is satisfied that it would have been clear to all employees at the Club that management, including its most prominent owners/customers (ie. the Board of Directors) were not only strongly opposed to the unionization of the Club but were willing to go to considerable lengths to avoid it. Accordingly, we have little difficulty in locating the employer's conduct at the end of the spectrum identified at paragraph 30 of the Seven-Up/Pure Spring Ottawa decision, supra, and, therefore find that it breached section 70 of the Act.

38. In coming to this conclusion we note, as well, that we reject the employer's written submissions regarding the possible effects of the purpose clause contained in the new Act. In our view, the reference in that clause to the promotion of "employee involvement in the workplace" and the "encourage[ment] of communication between employers and employees" are insufficient to shield the foregoing behaviour from the unfair practice provisions of the Act. Shortly stated, had it been the Legislature's intention to alter the effects of the Board's well-established case law, we have no doubt that it would have expressed that intention in much clearer fashion in the substantive provisions of the Act.

39. This brings us to the treatment accorded Ms. Ward. As previously stated, we are prepared to accept Ms. Kent's evidence that Ms. Ward admitted to having engaged in organizing activity on company time and company property. We have also indicated that we are prepared to accept that Ms. Ward knew or ought to have known that she should not have been away from her work-station engaging in such conduct. What we are not prepared to accept, however, is that the employer's response to Ms. Ward's behaviour was in any sense proportional to the degree of wrongdoing or that it was untainted by anti-union sentiment.

40. Ms. Ward is a long service employee. There is no evidence of any prior discipline on her record. As a bartender, former politician and an individual possessed of a strong personality, she appears to enjoy some prominence in the workplace. At the time of her suspension, and for a period of at least several weeks previously, Ms. Ward also appears to have been known by management to be a key, if not the key, union organizer. All of this, in our view, should have dictated a cautious and measured response to her behaviour. Instead, Ms. Ward became the first employee to have been suspended by the Club in anyone's memory. She was summoned to the general manager's office, handed a letter, escorted from the premises by two management representatives, and given no indication as to when, if ever, she would be permitted to return. Thereafter, and lest there be any doubt about the reasons for her suspension, Mr. Klahre convened two meetings with employees in which he discussed the possibility of harassment and intimidation in the organizing campaign and raised the possibility that employees might wish to revoke their membership evidence.

41. In the absence of any investigation as to what effects, if any, Ms. Ward's conduct may have had on service, the absence of any prior warning that such behaviour would be grounds for substantial discipline, and in light of the other factors identified above, we find the admission by employer counsel in argument that such conduct may have been "an over-reaction" to be a manifest understatement. In our view, management's decision to suspend Ms. Ward and its subsequent conduct can only be understood as the product of a desire to bring home to employees the depth of its opposition to the possible unionization of the Club and the serious risks to employment that employees would run in actively supporting it. Accordingly, and even viewed in isolation from the more beneficent treatment accorded the promotion of the association, we have no doubt that, in suspending Ms. Ward, the respondent violated sections 70, 72 and 76 of the Act.

42. Turning to the second and third factors identified in section 11(1), we note that a certificate cannot issue unless the Board is satisfied that the result of the respondent's contravention is that a representation vote would not likely reflect the true wishes of employees about being represented by the trade union and no other remedy would be sufficient to counter its effects. Although these requirements were not expressly set out in section 9.2 or its predecessors, a similar approach was applied by the Board to the exercise of its discretion under these earlier provisions. Hence, both at the conclusion of the case and in their subsequent written submissions the parties addressed these issues.

43. At the risk of over-simplifying, it was the applicant's submission that the employer's conduct was similar to that which had been found to be sufficient to warrant automatic certification in the past. The applicant relied on such cases as: PCO Services inc., [1995] OLRB Rep. Apr. 505; Z-Lite Jenamees, [1995] OLRB Rep. Feb. 212; Frade's Fruit Ltd., [1995] OLRB Rep. Feb. 122; Canac Kitchens Limited, [1994] OLRB Rep. Aug. 972 (where a vote was ordered, together with other remedies); Repla Limited, [1990] OLRB Rep. Dec. 1319; and J. Sousa Contractor Limited, [1988] OLRB Rep. Oct. 1027. The respondent argued, on the other hand, that there was no evidence of any "chilling effect" on employee behaviour, suggesting that such evidence as there was was to the contrary, and that any misconduct in which it may have engaged was far less than that which had resulted in automatic certification in prior Board decisions. Great reliance was placed by the employer on the following passage from Primo Importing and Distributing Co. Ltd., [1983] OLRB Rep. June 959:

44. This is not the first case in which the Board has been asked to certify a trade union pursuant to section 8 where an employer has contravened section 64 [now section 701 of the Act by supporting an "in-house" employees' organization in order to draw employee support away from that trade union. In Homeware Industries Limited, [1981] OLRB Rep. Feb. 164, the employer was found to have interfered with the selection of a trade union by employees contrary to section 64 [then section 561 (now section 70] of the Act, by "proposing the establishing of an employee committee where none had existed before, and then dealing with the committee with respect to working conditions,.. .so as to draw employee support way from the applicant trade union and towards the committee". In that case as in the present case, the committee was permitted by management to conduct its affairs during working hours and to make use of company bulletin boards. In rejecting the trade union's request for certification without a vote on the basis of the employer's contravention of section 64 [now section 70] of the Act, the Board wrote:

45. For a trade union to be certified under section 71 [now section 81 [now section 11], it is not sufficient that the Board conclude that the employer has contravened the Act. Rather, in a case such as this, the Board must also be satisfied that the true wishes of employees are not likely to be ascertained by way of a representation vote. In the instant case, the statements and actions of [management] would have made it clear to employees that the respondent did not desire to have its employees represented by a trade union and that the respondent would prefer to deal with its employees through an employee committee. However, the respondent's preference in this regard is not likely to have come as a surprise to any reasonable employee. Employees do not expect employers to welcome the unionization of their work forces and a clear indication of this fact by an employer, standing by itself, is not likely to have an unduly coercing influence on employees.

46. In addition, the employer referred to the following excerpt from Seven-Up/Pure Spring Ottawa, supra:

47. Not every violation by an employer of the Labour Relations Act creates a climate in which employee wishes can in no circumstances be ascertained. The presence of the third of the precondi­tions to section 8 [now section III certification is a question of fact which is determined by the Board on a case by ease basis. The factors which have influenced this determination were reviewed by the Board in The Globe and Mail Division of Canadian Newspapers Company Limited, [1982] OLRB Rep. Feb. 189:

The Board has found in a number of cases that the employer, in violating the Act, made threats to the continued job security of his employees conditional on whether the union succeeded in its attempt to become certified. In these cases, the Board concluded that the employer violation of the Act was such as to make it unlikely that the true wishes of the employees could be ascertained. An employee is unable to express his true wishes where he has been told by his employer, either expressly or impliedly, and has reason to believe, that the selection of a union may cause the company to reduce the scale of its operation or close down with an attendant reduction in the number of jobs. (See Dylex Limited, supra, Lorain Products (Canada) Ltd. [1977] OLRB Rep. Nov. 734, Riverdale Frozen Foods Limited, [19791 OLRB Rep. April 338, Straron Knitting Mills Limited, [1979] OLRB Rep. Aug. 801, Sommerville Belkin Industries Limited, [1980] OLRB Rep. May 79 and A. Stork and Sons Ltd., [1981] OLRB Rep. April 419).

The Board has also applied the section where the cumulative effect of a range of unlawful employer activities, none of which taken separately might call the section into play, has the effect of undermining the confidence in the rule of law which a reasonable employee is presumed to have and which gives a reasonable employee the confidence to make a free choice. in these circumstances, the Board is forced to the inevitable conclusion that the true wishes of the employees are not likely to be ascertained. (See Radio Shack, supra, K-Mart, supra, Skyline Hotel Limited, supra and Robin Hood Multi Foods [1981] OLRB Rep. July 972).

In assessing whether employer breaches of the Act so adversely affect the ability of employees to express their wishes as to justify certification without a vote, the Board considers whether remedies for those breaches can be so crafted as to create a climate in which a representation vote might successfully ascertain the wishes of the employees: Great Canadian Pizza Co. [1980] OLRB Rep. Feb. 216; Simcoe Manor Home for Aged, [1980] OLRB Rep. Nov. 1696; Homeware Industries Ltd., [1981] OLRB Rep. Feb. 164; A. Stork & Sons Ltd., [1980] OLRB Rep. April 419; Upper Canadian Furniture Ltd., [1981] OLRB Rep. July 1016 and Prima Importing and Distributing Co. Ltd., [1983] OLRB Rep. June 959.

64. In analyzing these passages, we begin by noting that what the Board in Seven-Up/Pure Spring Ottawa, supra, characterized as a "question of fact" (ie. whether the employer's conduct has created "a climate in which employee wishes can in no circumstances be ascertained"), we prefer to think of as a matter of labour relations judgement. In essence, and as modified by the language of section 11(1), it requires the Board to apply its accumulated labour relations expertise to determine whether a representation vote would not likely reveal the true wishes of employees, even if it were coupled with such other remedies as a posting and/or an opportunity for the union to address employees at the workplace prior to the holding of the vote. Because of the statutory requirement of confidentiality and inherent problems of reliability, the Board does not require the employer or the union to call a "parade of witnesses" to testify about the possible effects of the employer's conduct on their wishes concerning trade union representation. Rather, the Board applies an objective test: how would the reasonable employee likely be affected by the employer's contraventions? Would the employee likely be prevented from expressing his or her true wishes in a representation vote, or could those wishes be safeguarded or restored by the provision of other remedies?

65. Historically, and as alluded to in the Globe and Mail decision (cited in Seven-Up/Pttre Spring Ottawa, supra,) the Board has tended to grant unfair labour practice certification in two broad categories of cases: (1) where the employer has made threats to employee job security in the event of unionization; and (2) where the employer has engaged in a range of unlawful activities, short of such threats. We see these as examples of situations in which the Board has determined that employee wishes are unlikely to be ascertained in a representation vote, rather than as closed compartments. Proverbially, each case must turn on its own facts. More recently, for example, the Board has been particularly sensitive to the treatment accorded trade union organizers and known union supporters. Where one or more such employees has been laid off or otherwise removed from the workplace (sometimes coupled with other unlawful employer activity), automatic certification has been granted: see eg. Repla Limited, supra, Z-Lite Jenamees, supra, Frade 's Fruit Ltd., supra, PCO Services Inc., supra. Finally, it must also be noted that the Board has been unwilling to grant unfair labour practice certification where the employer's behaviour focused solely on the promotion of an employee association as an alternative to the representation of employees by a trade union: see eg. Seven-Up/Pure Spring Ottawa, supra, Pritno Importing and Distributing Co. Ltd., supra, Upper Canadian Furniture Limited, supra.

66. It is this aspect of the case that has caused the panel the greatest difficulty and, as revealed in the accompanying dissent by Mr. Sloan, on which it is most sharply divided. On balance, however, the majority is of the view that the employees' true wishes concerning unionization are unlikely to be expressed in a representation vote, whether or not that vote were to be accompanied by other possible remedies. In our view, this is a case in which the employer has engaged in two very serious and closely related forms of misconduct: the extended promotion and support for an employee association as a preferred alternative to the trade union and the visiting of serious adverse employment consequences upon a key employee organizer for attempting to persuade a fellow employee to sign a union card on company time and company property. Taken together, this conduct, including its implicit threats to employment security, carried out over a period of almost two months, in a workplace of limited size and substantial intimacy, in which employees are required to serve and cater to the owners as customers on a daily basis, and in which at least some of the employees (to borrow Mr. Klahre's phrase not already set out in evidence) view management as "God", will have deprived employees of the ability to express their true wishes about the union in a representation vote. Moreover, we are of the view that this conduct will have left such an indelible imprint on the minds of employees that no remedies the Board could reasonably construct would be likely to alleviate it.

67. In so concluding, we have not forgotten the employer's submissions concerning the absence of any "chill" on employee behaviour. These submissions focused on the assertion that the union's organizing campaign faltered not because of the employer's conduct but because of its organizing strategy. This strategy, according to the employer, paid no attention to the Greens Department and the Pro Shop until some time in July. Further, the employer submitted, there was no evidence of any substantial organizing having been undertaken in the latter part of July other than the attempt to sign Heather Harris; nor was there any evidence that employees were "scared off'. In this respect, the employer noted that one card appears to have been signed on the day after Ms. Ward was suspended. Finally, the employer submitted that a substantial number of the employees in the workplace are students, who have only a passing interest in the affairs of the Club and, therefore, are unlikely to be easily intimidated.

68. To the extent that these submissions focus on the likelihood of the union having obtained greater membership support in the bargaining unit even absent the commission of any unfair labour practices, they are somewhat misdirected. As already indicated, the union appears to have obtained substantial, indeed majority, support in the bargaining unit. In these circumstances, the issue is not whether they would have obtained even greater support but whether a representation vote would likely reflect the true wishes of employees. For the reasons already given, we have found that it would not. Further, the fact that the organizers did not seek the support of members of the Greens Department or Pro Shop until some five to six weeks into the campaign or that few cards may have been signed in the month of July are not sufficient to alter this conclusion.

69. As indicated above, the Board applies an objective, not a subjective, test to determine the likely impact of the employer's behaviour on employee wishes. Thus, the fact that one card may have been signed on the day after Ms. Ward was suspended or, for that matter, that Ms. Ward may have been seen approaching the Greens maintenance building "in broad daylight" at the end of June, are not sufficient to alter our conclusion that employees have likely been irremediably affected by the cumula­tive impact of the employer's unlawful activity. Finally, we see no reason to distinguish between students and others for the purposes of this analysis. In this respect, we note that both of the students who testified at the hearing expressed a desire to be "hired-back" next summer and, to that extent, may be seen as being more, rather than less, susceptible to the employer's unlawful behaviour.

70. In the result, a certificate will issue to the applicant for the bargaining unit set out in paragraph 47 of this decision.

DECISION OF BOARD MEMBER R. M. SLOAN; August 12, 1996

1. I most strenuously dissent from the majority decision.

2. My concerns with the majority decision are legion and include among others, the exclusion of references to much pertinent and relevant material; the uneven treatment accorded the respondent's principal witnesses; and the disposition to ignore, in the main, serious credibility problems associated with the applicant's main witness.

3. If we accept for the sake of argument that all of the facts recorded by the majority decision are complete and correct, and are given a full and accurate interpretation, there can be no justification for the decision arrived at by the majority.

4. Of additional concern to me is the almost total absence of the application of the provisions of the current Labour Relations Act and an erroneous application of case law which was based on previous - substantially different - legislation, particularly in respect to the areas pertinent to this instant application.

5. The question that the Board is called upon to answer is not did the employer contravene the Act, but was that contravention so significant that a representation vote would not likely reflect the true wishes of the employees in the bargaining unit.

6. The majority decision fails utterly to show that the true wishes of the employees in the bargaining unit cannot be ascertained through the holding of a secret ballot representation vote.

Legislation

7. It is well recognized in the Ontario labour management community that the current Labour Relations Act embodies many very significant changes from the previous legislation and in particular, for the immediate application to the facts of our case, section 2 - "Purposes and Application of Act"; sections 7 through 15, "Establishment of Bargaining Rights by Certification"; and section 70 - that portion dealing with what are generally referred to as the "free speech provisions" of the Act.

8. Section 2 - "Purposes and Application of Act" reads:

9. The following are the purposes of the Act:

10. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees.

11. To recognize the importance of workplace parties adapting to change.

12. To promote flexibility, productivity and employee involvement in the workplace.

13. To encourage communication between employers and employees in the workplace.

14. To recognize the importance of economic growth as the foundation for mutually beneficial relations amongst employers, employees and trade unions.

15. To encourage co-operative participation of employers and trade unions in resolving workplace issues

16. To promote the expeditious resolution of workplace disputes. New.

(emphasis added)

9. It is abundantly clear from the foregoing paragraph that employers have the right, indeed are encouraged to communicate with employees on a variety of matters that effect the workplace relationships between employers and employees, subject to the prescribed limitations contained in section 70 of the Act.

10. Section 70 reads as follows:

11. 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.

(emphasis added)

11. Section 70, as we see from the foregoing, lists five (5) specific areas in which employers are prohibited from communicating to employees - through whatever means - verbal or written -material that could be construed to be: coercion, intimidation, threats, promises or undue infittence. I shall refer to this list on a number of occasions throughout this dissent.

12. With respect to the applicant's claim of a breach of sections 72 and 76, I would point out that those sections do not confer any rights upon individual employees to engage in union activity on company premises, nor during that individual's working hours. Indeed prior to the filing of an applica­tion for certification a union has no statutory right of access to an employee group at the workplace or on worktime.

13. Clearly sections 72 and 76 have not been violated by the respondent and have no application to the facts of this case. There has been no evidence adduced to support any claim of any violation of these two sections of the Act.

14. A careful reading of the relevant provisions of the Act clearly establish the employer's right to communicate freely with its employees, and a careful consideration of all of the circumstances of this case can lead to no other conclusion than that the communication with respect to the staff association and other matters was made free of any taint with respect to the section 70 prohibitions.

15. Section 11(1) of the Act reads as follows:

16. (1) Upon the application of a trade union, the Board may certify the trade union as the bargaining agent for the employees in a bargaining unit in the following circumstances:

17. An employer, employers' organization or person acting on behalf of an em­ployer or employers' organization has contravened the Act.

18. The result of the contravention is that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

19. No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.

20. The trade union has membership support adequate for the purposes of collec­tive bargaining in a bargaining unit found by the Board to be appropriate for collective bargaining.

I shall refer to this section in some detail later in this dissent.

Background

16. We heard evidence from Mr. Klahre that the management of the Burlington Golf and Country Club, concerned about organization and operational problems, decided as far back as the autumn of 1994 to concentrate on improving the service offered to its members by promoting increased competency and efficiency among its staff members, and to facilitate communication among the staff members within the total facility, and between the staff and management.

17. There were serious deficiencies in the service to members and in the effectiveness and morale of the staff, as well as poor communications among all levels of employees. This setting must be taken into account when assessing the facts of this case.

18. The work which commenced in the fall of 1994 was the first step in establishing the clubs' determination to improve organizational efficiency and its service to its members. The evidence further established that in pursuit of these operating goals discussions were held early in 1995 (while the exact date(s) may not be available they commenced not later than some time in the month of April, 1995) -between Mr. Bernd Klahre and Mr. Allen Taylor, a member of the Board of Directors of the Burlington Golf and Country Club and a full member of the club for some sixteen (16) years.

19. Mr. Taylor further testified that he was familiar with the operation and benefits of staff associations having worked with a staff association in his company for close to thirty-five (35) years. We further learned from Mr. Taylor that he had been authorized by the Board of Directors to enter into discussions with Mr. Bernd Klabre with the goal of having the latter broach the possibility of a staff association with employees-at-large.

20. Part of the staff association discussions included the use of the material/forms associated with employee evaluation and a related questionnaire which I will refer to again later on.

21. We further heard from Mr. Taylor - and this reinforces the seriousness with which the club approached the staff association issue - that six (6) or seven (7) meetings were held with Mr. Klahre on this topic all before the 8th of June, 1995, that is, before the employer had any formal knowledge of the union's organizing drive.

22. We know that staff associations are a legitimate and legal form of promoting communica­tion; problem solving; and morale building in business enterprises, so the employer is to be compli­mented rather than criticized for efforts made in this direction.

23. From all of the above it is abundantly clear that management's consideration of a staff association as a potential means of realizing their operating needs preceded, and its conception was not in the least influenced by, any interest employees might have had in being represented by a trade union.

Credibility

24. The credibility of the witnesses has been assessed based on factors such as the demeanor of the witnesses when they were giving their evidence, the clarity, consistency and firmness of their recollections, the ability of the witnesses to resist the influence of self-interest in shaping their testimony, and the plausibility of their version of events in light of contradictory evidence.

25. 1 found the Club's two main witnesses Mr. Berud Klahre and Ms. Terry Kent to be highly credible detailing pertinent facts in a most forthright, convincing and helpful manner. Regrettably, I can not say the same for the union's principal witness Ms. Elizabeth Ward. I found that she exhibited a sometimes less than scrupulous attitude towards the truth.

26. A number of the issues which cause me concern relate firstly to Ms. Ward's testimony with respect to her three years at a university in Nova Scotia. Ms. Ward testified under oath that she could not recall neither the name of the university nor where it was located, and secondly - and more importantly - her testimony regarding the incident which led to her suspension.

27. Even the majority decision confirms the fact of Ms. Ward being less than truthful where in paragraph 58 it acknowledges that Ms. Kent's version of their encounter was to be accepted. Incidentally it was not only the version of the incident given by Ms. Kent that was completely at odds with Ms. Ward's account, but also the first-hand testimony of Mr. Gregory Krupay which supported Ms. Kent's testimony to the letter. Mention of Mr. Krupay's important corroborating testimony is omitted from the majority decision.

28. 1 question why the majority decision places an adverse slant on Ms. Kent's evidence - two examples are the omission of any reference to Mr. Krupay's testimony on the crucial issue of the incidents relating to the suspension, and in paragraph 13, by discarding Ms. Kent's evidence with respect to the purpose of the June 2, 1995 meeting in favour of that given by Mr. George Abbott even in the face of the uncertainty expressed by Mr. Abbott. There is no definite evidence, nor for that matter any reason, to attempt to negate the truthfulness of Ms. Kent's testimony with respect to the purpose of the June 2, 1995 meeting.

29. On balance then, and supported by the evidence, I would accept the testimony of Mr. Klahre and Ms. Kent where any of that testimony is in conflict with that given by Ms. Ward.

Staff Association

30. We have seen from the background material commencing on page 5 that the respondent was well into exploring the concept of a staff association before the union organizing drive commenced.

31. We have also learned that without formal knowledge that a union organizing drive was underway - management had heard prior rumours to this effect - that Mr. Klahre wrote to all staff members, under date of June 8, 1995, suggesting that they establish a staff association and soliciting their voluntary and significantly their anonymous views in a "yes" or "no" format as to whether or not they wished to have a "staff association".

32. The full text of Mr, Klahre's June 8, 1995 letter is produced in paragraph 14 of the majority decision. There is no basis in this letter for finding any reference whatsoever that could be construed as coercion, intimidation, threats, promises or undue influence. The letter was a straight-forward request for a voluntary expression of employees' wishes.

33. On June 2, 1995 Ms. Kent called a meeting with employees to discuss - as she testified -matters of concern expressed by a number of employees during previously held training sessions. At that meeting Ms. Kent also raised the matter of a staff association and from the direct testimony of union witnesses the reception given to the matter was less than favourable, with a number of employees voicing strong reservations about the potential value of a staff association. The fact that employees felt comfortable in raising such objections in the presence of management suggests that they cannot be characterized as a group of intimidated employees, who would be unable to express their true wishes with respect to union representation in a secret ballot vote.

34. Here is Ms. Ward's account of part of that meeting given in examination-in-chief:

"The general tenor of the meeting at least by the evidence as to who spoke up - was that it (the staff association) was not a good idea based on one persons' experience with an employee association at a previous work location".

The above is a further example of employees freely offering their views opposed to the staff association. When asked by her counsel whether Ms. Kent responded to these negative comments, Ms. Ward testified that:

"No, I think she was surprised by the comments, she did say she wished everybody to consider the association".

"Then Ms. Kent asked if there were any questions - no one seemed to have any."

35. In response to the questionnaire attached to the June 8, 1995 letter, Mr. Klahre testified that he had received twenty (20) replies and all but two (2) supported the formation of a staff association.

36. Prior to the June 2, 1995 meeting we heard testimony from Ms. Kent that she had heard rumours that Ms. Ward was involved with the union so it was not surprising that she was especially interested in what Ms. Ward had to say. At the conclusion of the June 2, 1995 meeting Ms. Kent was approached by Ms. Ward and here is Ms. Ward's account, given under examination-in-chief, of at least part of that conversation:

"On my way out I thanked her (referring to Ms. Kent) she said that Mr. Klabre was considering sending out a letter to all employees regarding the association. I just said that it may be a good alternative and that it was a good idea to send out the letter".

When asked by her counsel why she had made the above comments, Ms. Ward replied:

"For one thing I didn't think employees should be subject to just one alternative like a union - there are bound to be employees who don't want to join a union and 1 was covering all the bases. 1 had already talked to some employees who were adamant about not joining the union - Zoran Grgar not impressed upon us we were not to coerce - I felt that they (the employees) should be subject to two choices. At that point I was very much aware that I had a large number of employees who signed union cards that I didn't have much concern about employees accepting an association".

37. During the course of his final argument, counsel for the applicant responded to a question by the writer with respect to the remarks made by Ms. Ward (and quoted in the foregoing paragraph) following the June 2, 1995, meeting and counsel declared that her (Ms. Ward's) "response was genuine, that she meant what she said". So what we have here is not merely passive agreement as noted in paragraph 15 of the majority decision, but open acceptance and approval by Ms. Ward of the concept of the staff association and direct encouragement to the employer to send out a letter to all employees advising them of the staff association as an "alternative". (Ms. Ward's word).

38. Further, in a letter dated 9 June, 1995 Mr. Sean Clancy, Business Agent wrote to Mr. Klahre and Mr. Dave McPhee, Chairman of the Board (I believe that it can be safely assumed that Ms. Ward had reported back to the union about the respondents intentions with respect to communicating with the employees on the staff association matter). Nowhere in his June 9, 1995 letter did Mr. Clancy make any mention, even obliquely, of the staff association. Had he in fact had some concerns about the staff association this would certainly have been the opportunity to record them. Mr. Clancy certainly had every opportunity to address the staff association matter but it appears from the generalities in the letter, and the absence of any specifics, that the employer's interest in the staff association was not considered to be a breach of the Labour Relations Act. Mr. Clancy had every opportunity to make such an allegation since the sole purpose of his letter was to deal with potential violations of the Act.

39. Again, in a letter/memorandum dated June 16, 1995 addressed to all employees of the Burlington Golf and Country Club, Mr. Grgar as Business Manager, Local 101, criticized the staff association as a concept but did not take issue with or challenge the employer's right to discuss the matter with employees.

40. Mr. Grgar writes in part, in the third paragraph of his June 16, 1995 letter, words that are, in the main, inaccurate, misleading, and derogatory. It reads as follows:

Everyone knows that jobs are not easy to find - that is why the favourite response of the Boss is "If you don't like it, there's the door." (Just wait until he gets his first grievance.) This favourite saying will soon disappear. Already the Boss is sending you "Love Letters" (see memo enclosed). (Remember..."lf it smells like it, and it looks like it - it sure is.") They want you to establish a "Staff Association." This is a method of distracting you from your real objective, because a "Staff Association" is not a union and will never have the same power to put the Boss in his or her place. Don't be fooled by this cheap ploy This Staff Association will not be recognized as a union by the Ontario Labour Relations Board because it is not legitimate - it is only a charade. it is interesting that the Boss is already concerned about the union - the Boss realizes that he/she will not be a dictator much longer.

41. Contrast, if you will, the wording contained in Mr. Grgar's written communication quoted in the preceding paragraph, with the reasoned, matter-of-fact approach taken by the respondent in its written communications dealing with the staff association and the union organizing drive.

42. It would seem that the majority - in not reporting in any detail on Mr. Grgar's comments -see nothing wrong with the union attempting to demean the employer with scurrilous comments and in misleading the employees with respect to the status of a staff association in the eyes of the Ontario Labour Relations Board.

43. Mr. Grgar knows I am sure that staff associations are wholly acceptable and effective means of promoting good working relationships between employers and employees and that when the occasion arises staff associations can, and have, been granted status before the Board as trade unions, and have entered into valid collective agreements recognized as such under the Act.

Disciplinary Action

44. In paragraph 49 the majority decision finds that the Act was breached by the respondent in two respects:

• "...promoting the employee association in the face of the union organiz­ing campaign...", and

• "...in indefinitely suspending the lead inside organizer, Elizabeth Ward."

45. In the previous paragraphs of this dissent I have dealt with the matter of the staff association. In this portion of my dissent, I will deal with the indefinite suspension.

46. Firstly, I think that it is important to define the role played by Ms. Ward with respect to the circumstances of her position and behaviour prior to, during, and following her suspension.

47. In paragraph 53 of the majority decision we see Ms. Ward referred to by the majority "...as a bartender, not as a trade union organizer", suggesting that because of her position as "only" a bartender she could not have possibly played any role in influencing management with respect to promoting the association.

48. However, in paragraph 59 the majority recognizes Ms. Ward's true impact at the Burlington Golf and Country Club when they write:

"As a bartender, former politician, and an individual possessed of a strong personality she appears to enjoy some prominence in the workplace".

(emphasis added)

I agree with this later assessment of Ms. Ward and will refer to it again when dealing with her comments to Ms. Kent following the 2 June, 1995 meeting during which the staff association was discussed.

49. While no evidence was adduced to substantiate her assertion, we did hear from Ms. Kent that it was her belief that Ms. Ward had, before the 21 July incident, engaged in union activity during her working hours and that this knowledge contributed to her response to the events on that day.

50. There can be absolutely no question whatsoever that Ms. Ward absented herself from her work station without authorization, and engaged in union activity during her working hours on 21 July, 1995 - an activity rendering her subject to disciplinary action.

51. The majority decision dilutes this fact, inexplicably, by writing that Ms. Ward, "...either knew or ought to have known...". Ms. Ward clearly, by her own testimony knew what her responsibilities were and that she was wrong to engage in union activity during her working hours.

52. Further, Mr. Grgar in his June 16, 1996 letter/memorandum to "All Employees of Burlington Golf and Country Club" included a photocopy of the Ontario Ministry of Labour's - "A fact Book for Employees" on the Ontario Labour Relations Act. A pertinent paragraph, included on page 9 of that document, is worth recording here:

Even though employers are not allowed to interfere with a union organizing drive, they still have the right to conduct business in the normal way. For this reason, your employer has the right to forbid any organizing activity on his or her property and may still penalize you during an organizing drive for causes unrelated to your right to support a union.

(emphasis added)

53. It is unequivocally clear from the above quoted Ministry of Labour document that the respondent - and any other employer for that matter - can correctly believe that it has the right to take disciplinary action against employees conducting union activities on company time - particularly organizing activity" under the particular circumstances of this case. We know from Ms. Kent's testimony that the employer was aware of this limitation on organizing activity when it took the disciplinary action that it did. Surely, if any conduct fits into the category of "organizing activity" it is the attempt to have an employee sign a union membership card.

54. We know from Ms. Ward's uncontradicted testimony that that is exactly what she did in her contact with Ms. Heather Harris, although Ms. Ward in my view disingenuously attempted at one point in her testimony to convince the Board that she was not "soliciting" but merely delivering a membership card to Ms. Harris.

55. Ms. Ward would have the Board believe in other parts of her testimony that she merely dropped off a membership card to Ms. Harris on her way back to her work area from the washroom. Note how this contrasts markedly with the testimony of Ms. Kent and Mr. Krupay which testimony was preferred by the majority.

56. The majority decision makes much of the fact that neither Ms. Kent nor Mr. Klahre followed up on Ms. Ward's claim that she had asked someone in the food and beverage area to fill in for her during her absence from her work station while communicating with Ms. Heather Harris on union organizing business.

57. With respect, Ms. Ward did not testify that she had asked a specific, named employee, to fill in for her during her absence, but in another example of misleading testimony which the majority believed she advised that "...it is common practice for waitresses to cover the bar while the bartender takes a break". This is not the same as Ms. Ward having actually asked a fellow employee to cover for her during her absence. She did not identify the waitress nor did she claim that she was on a break (presumably she was referring here to an authorized break). It is interesting that the pleadings which were filed with the instant application, despite being very detailed, make no mention whatsoever of Ms. Ward obtaining a replacement to cover her absence from her work station. If such a person does exist, why wasn't she (a waitress) called as a witness?

58. It is an incontrovertible fact that the employer was within its rights under the Labour Relations Act to consider and take disciplinary action under the circumstances of Ms. Ward's 21 July, 1995 union organizing activity.

59. If Ms. Ward now expects the Board to believe that she was not engaged in union activity at the time of the incident which led to the employer legitimately taking disciplinary action, why did she not deny this assertion by the employer in her conversations with Ms. Kent, Mr. Krupay and Mr. Klahre?

60. Ms. Ward was not "exercising her right to support a union" but was clearly engaged in union organizing activity during her working hours contrary to her own certain knowledge; the instructions received from Mr. Zoran Grgar; and material contained in the pamphlet published by the Ontario Ministry of Labour which she had in her possession well before July 21, 1995, the day of her suspension.

61. Having established that the employer was not in breach of the Act for imposing discipline, we can now consider the majority decision's concern with the form of that discipline.

62. It is a very common and indeed under many circumstances the most appropriate response to apply an indefinite suspension under circumstances where a review or investigation of the facts is warranted to ensure that reasoned, supportable, fair action is taken.

63. Under the particular structure at the Burlington Golf Club where the General Manager reports to a Board of Directors, who in turn represent the membership, we could expect that on an issue as potentially significant as the one faced by Mr. Klahre (subsequent events support the wisdom of his action) it would be prudent to impose an indefinite suspension pending consideration of the facts.

64. Had Mr. Klahre imposed a definite penalty such as a fixed suspension he could have been criticized by the majority for acting out of haste without giving the matter due consideration.

65. Before a definite form of discipline could be decided on, the union filed an unfair labour practice under section 91 of the Act and on August 11, 1995 the parties arrived at a voluntary settlement reinstating Ms. Ward to her position as bartender with full compensation for any wages lost.

66. This settlement, it is worth noting was a voluntary one and resulted in the union withdrawing its application for an interim order under Board file No. 1785-95-M. A Board order did not result from this voluntary settlement.

67. While the majority may not approve of the handling of the disciplinary matter - their comments suggest they might like it to have been handled differently - they acknowledge that some form of disciplinary action was warranted - but do not, significantly, tell us what form of disciplinary action they would find to be appropriate - and I contend therefore there can be no breach of the Act.

68. In respect of the majority's findings in paragraph 50, I believe that the majority exceeded the Board's jurisdiction in concluding that the respondent breached the Act when it exercised its acknowledged legitimate right to take disciplinary action.

Chilling Effect

69. Paragraphs 67 and 68 of the majority decision deal with the subject of the "chilling effect" upon the union organizing drive.

70. To set the record straight, the submissions of counsel for the respondent are correct - the organizing drive ended when it did because of union strategy - and this submission is fully supported by the testimony of Ms. Karen Thombs and Ms. Ward.

71. Ms. Thombs testified that the subject of union representation had been discussed for some months prior to May 18, 1995 50 she had a pretty good idea of who was in favour of the union and she approached only those people with whom she felt comfortable (emphasis added).

72. The decision made by the organizers to approach only those employees with whom they "felt comfortable" resulted in the following pattern of having membership cards signed:

May 18, 1995 - Five(S) membership cards signed in the presence of Mr. Grgar - including both Ms. Thombs and Ms. Ward.

By May 30, 1995 - A further analysis of the signing dates on the cards shows that by May 28, 1995 approximately 80% of the total number of valid membership cards were signed - this is all within two(2) weeks of the commencement of the organizing drive.

Between June 4,

and July 22, 1995 - A further nine(9) cards were signed - no two cards being signed on any one day.

• It is significant that during the whole month of June, well before Ms. Ward's suspension and during a period when there was no suggestion of undue employer influ­ence, the organizers signed only three(3) membership cards.

73. The fact that the union organizers effectively terminated their organizing efforts voluntarily eliminates any possibility that the majority in their decision can assert, even by inference, that any behaviour on the part of the employer influenced employees to refrain from becoming members of the union and this being the case, there can be no suggestion whatsoever that this aspect of the case will effect the employees ability to express their true wishes in a representation vote.

74. The evidence clearly supports the proposition that the organizers consciously and effectively completed the bulk of their campaign in its early stages eliminating any possible allegation of a chilling effect.

Communications

75. The Board was not provided with any evidence to show that either through verbal or written communications to employees that the Employees would be in any way adversely influenced so that their true wishes could not be made known through the holding of a secret ballot representation vote.

76. The employer's written communications to employees were models of propriety and each one imparted factual information about the Act, or provided information and/or positive options for the employees voluntary consideration with respect to the staff association. (It is worth repeating here again that Ms. Ward shared the employer~s view with respect to the value of having employees consider a staff association).

77. Again, I am unable to find any reference whatsoever in any of the employer's communica­tions that would constitute coercion, intimidation, threats, promises or undue influence.

Automatic Certification

78. It is long established Board practice to grant automatic certification only when the conduct of the employer is found by the Board, on the basis of the evidence, to be so egregious that the true wishes of the employees with respect to union representation are unlikely to be determined through a secret ballot vote.

79. One of the reasons why the Board has been reluctant to order automatic certification is that it is very difficult to argue against the proposition that employees, no matter what their employers view is on union representation, would not cast their ballots, in secret, in accordance with their own true wishes.

80. A second major consideration is the fact that automatic certification disfranchises those employees who may wish to exercise their lawful right to choose against union representation.

81. The foregoing consideration takes on even greater significance in light of the current legislation which establishes for the first time in Ontario labour legislation history, the automatic right of all bargaining unit employees to participate in a secret ballot vote with respect to union representation.

82. The question that the Board has to answer is not "did the employer engage in any question­able activity - however minor" - but as noted in Sack and Mitchell - Ontario Labour Board Law and Practice section 3:6 100 P. 214:

"...The Board refused to exercise its discretion under section 7(4) to certify without a vote and ordered a vote or a new vote where though the conduct of the employer was in some degree improper, it was not such as to make it unlikely that the true wishes of the employee would be disclosed by a vote or a new vote."

(emphasis added)

Again in Sack and Mitchell, section 3.6115 p. 216:

The Board has held that an employer exercising its rights under section 64 need not be neutral on the question of unionization and may indicate that it would prefer employees to vote against the union.

Again with Sack and Mitchell quoting on p. 217 from the case of Bell & Howell Ltd., [1968] OLRB Rep. Oct. 695 at 706:

An employer may express his views and give facts in appropriate manner and circumstances on the issues involved in representation proceedings in so far as these directly affect him and has the right to make appropriate reply to propaganda directed against him in relation thereto.... He should take care that such expressions of views do not constitute and may not be reasonably construed by his employees to be an attempt by means of intimidation, threats or other means of coercion.

(emphasis added)

Again in Sack and Mitchell at paragraph 3:6120 on p. 219:

Not every violation of the Act will result in the Board exercising its discretion under s. 8. Indeed, the Board has said that certification under s. 8 is an extraordinary process given the fact that in most situations employees do not feel unduly influenced when making a secret ballot choice, and given the Board's broad remedial authority under s. 89 to deal with this conduct where it occurs. Thus, in determining whether employer misconduct makes it difficult to ascertain the true wishes of the employees, the Board does not apply the same test as it does in ruling on the voluntariness of an employee petition in a certification application. In the case of a petition very little employer involvement is required to cause the Board to dismiss a petition and certify without ordering a representation vote provided the union has more than 55 percent membership evidence. However. under s. 8, the union must establish substantial employer interference, intimidation or coercion such that the secrecy of the ballot cannot be relied upon as expressing the true wishes of the employees.

(emphasis added)

83. In order to find that the true wishes of the employees cannot be ascertained by a vote, the Board must find that reasonable employees would have to enter the polling booth faced with two compelling alternatives - vote for the union and suffer serious consequences, or suppress the wish to vote for the union and not suffer such consequences. The consequences would have to have arisen and be so found by the Board - out of the contravention of the Act by the employer through the prohibited grounds of coercion, intimidation, threats, promises or undue influence.

84. Not one scintilla of evidence has been adduced to support the majority decision that the events surrounding the staff association and the suspension of Ms. Ward will in any way interfere with or influence the free secret ballot expression of the individual employees true wishes with respect to union representation.

85. In order to support the finding that employees will not be able to express their true wishes in any representation vote, the majority must have evidence that employees contemplating their vote will be faced with the prospect of dire consequences should they vote for the union.

86. The consequences which would result from coercion, intimidation, threats, promises or undue influence would include the threat of the shutting down of a business; the layoff of employees and other threats to their job security; the threat to contract out work and otherwise threaten to intimidate employees. What is the "down side" which the Burlington Golf and Country Club employees must consider when casting their ballot? There isn't any! None has been placed before the Board in evidence.

87. We know from the facts and evidence in this case that there was no coercion, intimidation or threats, promises or undue influence, so how, in the face of a complete absence of supporting evidence does the majority arrive at the conclusion that reasonable employees will not be able to express their true wishes in a representation vote.

88. In support of my contention that the majority has erred in its decision, I quote from Kanac Kitchens Limited, [1994] OLRB Rep. Aug. 972, paragraph 65 which reads as follows:

"The Board has generally granted certification without a vote pursuant to section 9.2 in one of two types of situation, as reviewed in The Globe and Mail, supra, at paragraphs 60 and 61: where an employer has "made threats to the continued job security of his employees conditional on whether the union succeeded in its attempt to become certified"; and also "where the cumulative effect of a range of unlawful employer activities, none of which taken separately might call the section into play, has the effect of undermining the confidence in the rule of law which a reasonable employee is presumed to have and which gives a reasonable employee the confidence to make a free choice".

(emphasis added)

89. As we have shown this instant case, under the reasoning quoted above, would not justify the automatic certification of the respondent - there were no threats made and there was very definitely no "cumulative effect of a range of unlawful employer activity".

90. In Upper Canada Furniture Limited, [1981] OLRB Rep. July 1016 (File No. 2563-80-R and 2645-80-U) the Board found in paragraph 46:

"The employer contravened the Act by discriminating against the union by conferring upon the pro-plant committee supporters a substantial advantage to the foreseeable detriment to the union."

No such related employer activity occurred in this instant case - not even any suggestion of such activity - yet in the Upper Canada Furniture Limited, supra, case the Board found in paragraph 47:

"For the reasons set out above the Board in not satisfied, as it must be to grant a certificate under section 7a of the Act, that as a result of the employer's contravention of the Act the true wishes of the employees are not likely to be ascertained. We are satisfied in fact that given the nature of the employer's violation of the Act and the remedies set out below the true wishes of the employees will be revealed in a second representation vote."

91. In the above noted paragraph the Board exercised its discretion to order other remedies in the face of a contravention of the Act which did not warrant automatic certification. The majority in this instant case has ignored its right and gave no consideration to exercising its discretion and applying remedies which would precede the taking of a representation vote.

92. In J.G. Contracting Ltd., Board File 0407-95-U (unreported) the Board in a unanimous decision wrote in paragraph 27:

"Section 9.2 is an extraordinary remedy. As the language of the section stipulates, it may only be invoked if the Board considers that the true wishes of the employees are not likely to be ascertained because of the employer's contravention of the Act. For the reasons expressed in the preceding paragraph, we are not persuaded that the employer's conduct has created a situation where the true wishes of the employees are not likely to be ascertained. Mr. Fahel's conduct was an egregious violation of the Act and one which we do not condone. That in and of itself is not. however; grounds for automatic certification."

(emphasis added)

In the foregoing reference, we see that even where an employer's conduct was considered "egregious" an order under section 11 (formerly section 9.2) was not made.

93. The management of the Burlington Golf and Country Club from all of the evidence before this Board can be said to have conducted itself well within any constraints imposed by the Act - and if any characterization need be made of that conduct, it could well be that it was restrained and well within that expected of any employer conscious of, and eager to accept, and uphold its responsibilities.

94. In Seven-Up/Pure Spring Ottawa, OLRB files 1 146-83-R and 1682-83-U (unreported), the Board found specifically that the employer violated the Act by making what the Board determined was a threat or promise," but nevertheless ordered a representation vote preceded by a number of remedies.

Paragraph 35 reads, in part:

"In the circumstances of this case, we believe employees were likely to interpret the third numbered paragraph of the September 23rd letter as meaning that the predicted narrowing of bargainable issues would result from the employer's response to unionization rather than from anything inherent in collective bargaining. In short, it would likely be taken as a threat or promise that the employer would not bargain in good faith with this union if the employees were to select it as their bargaining agent."

(emphasis added)

Then we read in paragraph 39, in part:

"We have found a violation of the Act ... the question which remains is whether the true wishes of the employees are likely to be ascertained in a new representation vote."

Again, we read in Paragraph 40:

"Not every violation by an employer of the Labour Relations Act creates a climate in which employee wishes can in no circumstances be ascertained. The presence of the third of the precondi­tions to section 8 certification is a question of fact which is determined by the Board on a case by case basis. The factors which have influenced this determination were reviewed by the Board in The Globe and Mail Division of Canadian Newspapers Company Limited [1082] OLRB Rep. Feb. 189."

In paragraph 42, we read, in part:

"We believe that the adverse impact of the respondent's contravention of the Act can be rectified so as to enable the wishes of the employees to be ascertained in a new representation vote."

95. The Board in the final analysis refused to grant the s. 11 (then s. 8) application - despite the findings of a violation of the Act - and instead the Board fashioned a series of remedies contained in paragraph 42 to be followed prior to the holding of a new representation vote ordered in paragraph 44.

96. In the case before us the employer made no threats or promises, nor in my view did the employer breach any provisions of the Act, yet the majority imposes the ultimate penalty under s. 11 without any consideration being given to interim remedies leading up to a representation vote.

97. In a Board decision in File No. 3813-95-U, 461804 Ontario Limited o/a Bramalea Rebuild­ers the Board found in paragraph 31 and 38:

"31. As indicated by our findings of fact set out above, it is our determination that the decision to implement the layoff was made on Monday, January 22, 1996, days in advance of the first organizing activity and the employer's knowledge of the union's organizing."

"38. Having regard to all of the evidence, it is our determination that the union played no part in Bramalea Rebuilders' decision to lay off the employees in question as the decision was made prior to any organizing activity and prior to the employer becoming aware of the organizing drive. Accordingly, we dismiss the application as it relates to the layoff of the employees named therein."

(emphasis added)

98. In this instant case it is the uncontradicted and incontrovertible evidence that long before -actually many months before - the union's organizing drive commenced, the employer engaged in activities directed towards a voluntary staff association. The finding then by the majority that the references by the employer to the Staff Association is in violation of the Act is insupportable and is contrary to Board jurisprudence.

99. In Board files No. 3279-95-R and 3699-95-U, Maverick Mechanical Contractors in a decision dated April 16, 1996 [now reported at [1996] OLRB Rep. March/April 2891, the Board wrote:

"Para. 22 The language of the section makes clear that certification under section II can only be granted if the following conditions are met:

1. The Act has been violated.

2. As a result, a representation vote does not or would not reflect the employees' true wishes concerning union representation.

3. No remedy, including the taking of another representation vote, would counter the effects of the violation.

4. The union has membership support adequate for the purposes of collective bargaining."

Paragraph 23 reads in part:

"It is my determination that Mr. Robertson's conduct violates section 76 of the Act such that the first condition necessary for the application of section 11 has been met."

(emphasis added)

Paragraph 24 reads, in part:

“…..it is my determination that Mr. Robertson's conduct had the effect of discouraging the employees from attending at the job site on December 8, 1995 and casting a ballot, and, as a result, the results of the vote held on December 8. 1995 do not reflect the true wishes of the employees in the bargaining unit. Thus, the second condition necessary for the application of section 11 has also been met."

(emphasis added)

Paragraph 25 reads:

"The third condition necessary for the application of section 11 requires the Board to be satisfied that no other remedy, including the taking of another representation vote is sufficient to counter the effects of the violation. The Board has generally granted automatic certification in one of two types of situations. First, where an employer has made threats to the continued job security of its employees conditional on whether the union succeeded in its attempt to become certified, certifica­tion has followed automatically Alternatively where the cumulative effect of a range of unlawful employer activities, none of which taken separately might call the section into play has the effect of undermining the confidence in the rule of law which a reasonable employee is presumed to have and which give a reasonable employee the confidence to make a free choice the Board has automatically granted certification to the union (see: The Globe and Mail, [1082] OLRB Rep. Feb. 189 at paragraphs 60 and 61)."

100. In the Maverick Mechanical Contractors case, paragraph 26 cited above, it was found that "neither of these two scenarios are present", that is, no threats have been made to job security and no "cumulative effect". The identical finding can be made in the instant case and therefore automatic certification is not an appropriate remedy.

101. Nothing in the communications or behaviour of any single member of the management of the Burlington Golf and Country Club suggested in any way that continued job security was related to the employees wishes with respect to union representation, nor does any of the evidence support a finding of "... a cumulative effect of a range of unlawful employer activities".

102. In the above-noted case, the Board found a violation of the Act and ordered that a previous representation vote be set aside as it did "... not reflect the true wishes of the employees in the bargaining unit" (paragraph 24). A new vote was ordered.

103. As stated more fully elsewhere, should the majority believe that there has been a violation of the act - however minor, they can rectify any pre-vote misgivings they believe might be present in the minds of some employees by issuing directions as was done by the Board in the Maverick Mechanical Contractors Limited case (supra).

104. The union submitted an additional number of cases for our consideration and while none of the cases were on point, they were helpful however in supporting my belief that only under exceptional circumstances would the Board order automatic certification as they did in the following cases. In Z­Lite Jenamees, [1995] OLRB Rep. Feb. 212 at paragraph 46:

viewed objectively, it is reasonable to conclude that employees would have had serious concerns with regard to their job security...

In spite of the Board's finding that employees would have serious concerns with regard to their job security, the Board, in paragraph 46, stated that the decision to grant the application "...is a close call...". In Frade's Fruit Ltd., [1995] OLRB Rep. Feb. 122, the Board certified the union under s. 9.2 (now s. 11) on the basis of the termination of two employees and the distribution of a questionnaire in the workplace - both activities creating a climate of fear in the workplace. The circumstances of the Frade's Fruit Ltd., supra, case are so far removed from this instant case that they cannot be said to be helpful to the union. In our case there were no terminations nor any creation of a climate of fear.

General

105. In paragraph 27 (p.8) Sara Lee Bakery File No. 3308-95-R and 3395-95-R [now reported at [1996] OLRB Rep. May/June 480]the Board quoted from General Freezer Limited, 63 CLLC ¶ 16,294 supporting the effectiveness and validity of secret ballot representation votes in writing:

"all of the employees in the bargaining unit have had the opportunity to express their wishes with respect to their choice of a bargaining agent by means of a secret ballot, and therefore the true wishes of the employees have been fully tested."

(emphasis added)

106. In an information package released by the Ontario Ministry of Labour immediately prior to the introduction of Bill 7, a fact sheet included the following material which is critically significant to the facts, circumstances and outcome of this instant case - it reads in part;

"FACT SHEET:

ON WORKPLACE DEMOCRACY AMENDMENTS

INTRODUCTION

The government is introducing amendments to the Labour Relations Act designed to enhance democracy in the workplace. The government is committed to the principle that individual employ­ees must have a free and informed right to choose whether or not to join a trade union, to go on strike or to ratify a contract. The best way to ensure that right is to have secret ballot votes in all cases.

(emphasis added)

To deprive the employees at the Burlington Golf and Country Club of their rights enshrined in the Act without reason is a gross violation of their stated and protected legal and democratic rights.

107. The majority decision takes great pains to highlight a comment made by counsel for the respondent in his argument that perhaps the employer might have over-reacted in deciding upon the indefinite suspension of Ms. Ward.

108. In retrospect that was a normal observation considering the difficulties that arose as a result of that decision, but the comment in no way accepts or even implies that the indefinite suspension was incorrect and a breach of the Act.

109. Counsel for the respondent did not say at any time, nor did he imply by his comment, that some form of discipline should not have been imposed upon Ms. Ward.

Summary

Staff Association

110. In the Autumn of 1994 the beginnings of the stated goal of better communications with employees took root with the development of the Employee Evaluation Form, Motivational Question­naire, and Performance Appraisal form.

111. The process was further developed in April 1995 to the point where the concept of a staff association was firmly fixed in the minds of the Burlington Golf and Country Club management. (During the time covered by this and the above paragraph there was no organizational drive taking place and for that matter no known union presence whatsoever).

112. On 2 June, 1995 in response to employee concerns expressed at previously held training sessions, Ms. Terry Kent raised the matter of a staff association at an all-employee meeting.

113. At the conclusion of the June 2, 1995 meeting Ms. Elizabeth Ward approached Ms. Terry Kent and offered her unsolicited and voluntary support and indeed encouragement to having Mr. Bernd Klahre send out a letter to all employees with respect to the staff association, and Ms. Ward endorsed the offering of a staff association in two very specific and positive ways.

• Ms. Ward advised Ms. Kent that it would be a good idea to send out the letter, and,

• Ms. Ward further advised that the employee association "may be a good alternative" and that she "didn't think that employees should be subject to just one alternative like a union...

114. Ms. Kent testified that the club management heard rumours prior to 2 June, 1995 that Ms. Ward was involved in supporting a union presence in the workplace and was also aware of the leadership role of Ms. Ward played among the club's staff.

115. Having encouraged the employer to follow a specific course of action, action which we have seen to be well within that allowed by the Act, it does not now lie in the mouth of the union to claim that that action breached the Act.

116. Ms. Kent's actions and the subsequent communications by Mr. Klahre which stressed the voluntary aspect of the employee's consideration of the staff association concept, quite apart from Ms. Ward's definitive support, were in every way legitimate. For the chief in-house union organizer to lure -if that was Ms. Ward's plan all along - the club management into activity that would support a union application under s. II of the Act is unconscionable and the union should not now profit by Ms. Ward's duplicity.

117. It was quite legitimate for the employer to continue to ascertain the degree of interest among the employees for a staff association. The development of the concept predated the appearance of a union on the scene and if for no other reason than the "business as usual" principles long recognized and supported by the Board the majority should find the employers actions to be well within protected activity under the Act.

Disciplinary Action

118. The employer had cause to discipline Ms. Ward for leaving her work station without permission to engage in union organizing activity - activity which is not protected activity under the Act.

119. The majority decision agrees with the above but appears to take issue with the form of that discipline.

120. As I have shown in paragraphs 61 to 64 inclusive of this dissent that the form of discipline taken by the employer was legitimate and appropriate under the circumstances and followed the norms employed by practitioners on the Ontario labour relations scene.

121. The disciplinary matter was settled voluntarily by the parties and there was no evidence adduced to suggest - even the remotest possibility - that the issue supports the majority's finding of coercion, intimidation, threats, promises, or undue influence, nor is there any evidence that the discipline imposed (and settled to the union's satisfaction) "...does not or would not likely reflect the true wishes of the employees..." in the holding of a representation vote.

Communications

122. The employer consistently in its written communications advised employees of their right to become or refrain from becoming a member of the union, and that employees wishing to sign a union membership card are free to do so.

123. Nothing in any of the employer's verbal or written communications can in any way support the majority's finding of coercion, intimidation, threats, promises or undue influence, nor is there any evidence that the employer's communications with employees would in the holding of a representation vote, so influence the employees that such vote "... does not or would not likely reflect the true wishes of the employees

Legislation

124. The Act mandates that in all certification applications, s. 8(2) "...The Board shall direct that a representation vote be taken

125. And, in s. 8(6) "The representation vote shall be by ballots cast in such a manner that individuals expressing their choice cannot be identified with the choice made."

126. It should go without saying that to deny employees their explicit rights under the Act should only be done under extraordinary circumstances - circumstances that are notoriously absent in this instant case.

127. The result of the majority decision to grant automatic certification disfranchises almost one-half of those employees who were employed at the time of the application for certification.

128. To deny these employees their rights under the Act to a democratically held secret ballot vote with respect to their wishes in regard to union representation under the circumstances of this case is a travesty of justice.

129. Having been denied the opportunity to participate in the organizing campaign - we heard evidence that the organizers selected for the signing of union membership cards only those employees with whom they felt comfortable - an understandable strategy but nonetheless an exclusionary one -those employees who were not canvassed by the union organizers or who were canvassed but declined will now find themselves in a unionized workplace to which, according to Ms. Ward, a number of them were "adamantly" opposed, without their having been given the right, which is theirs under the Act to express their true wishes by means of a secret ballot vote with respect to union representation.

130. Those employees effectively disenfranchised by the majority decision will have great concern for its manifest injustice.

131. There has been no breach of the Act - and even if the majority believes that such breach did in fact occur - it is such a minor nature as to fly in the face of previous Board jurisprudence when adjudicating cases involving automatic certification under s. 11 (or its predecessors) of the Act.

132. Clearly the majority has failed to demonstrate where there has been coercion, intimidation, threats, promises or undue influence; has failed to make a case or any breach of the Act; and has failed to show why the true wishes of the employees cannot be ascertained through a secret ballot representa­tion vote.

133. If for reasons that elude me, the majority finds that some of the employer's actions are in some way troublesome, the Board has the discretion, and has exercised such discretion in the past in response to s. 11 applications, to order a vote, but also to impose specific remedies designed to offset what the Board believes to be that troubling activity.

134. Another very important matter that is not addressed by the majority decision concerns the composition of the bargaining unit. The bargaining unit at the time of the release of this decision -could be substantially different than that in existence at the time of the application. It is therefore imperative, if the Board is to comply with the pertinent provisions of the Act that in order to determine the true wishes of the employees with respect to union representation that a secret ballot vote be held.

135. I cannot agree with the majority decision which fails to show any violation of the Act or for that matter any behaviour on the part of the employer that warrants such a decision based even on previous board jurisprudence, which developed under a materially and significantly different Act.

136. The evidence fails to show any violation of the Act - and even if we accept the majority view that minor violations of the Act did occur (a finding I find to be totally insupportable) a remedy short of automatic certification would be a more appropriate response by the Board.

137. With respect to section 11(1) of the Act, I find under the circumstances of this case that:

138. The employer did not contravene the Act and the majority fail to estab­lish this in their decision.

139. Even if the majority are correct on their finding of a contravention of the Act, the contravention as described in the majority decision is of such a minor and insignificant nature as to overrule any finding by the majority "... that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union."

140. The majority failed to consider the requirements of subsection (3) of section 11(1) in that it did not put its mind to the matter of other remedies. It is significant to note that this sub-section of the Act provides for the taking of another representation vote in instances where a repre­sentation vote has already been taken.

141. The trade union may or may not have adequate membership support for the purposes of collective bargaining. The changes in the numbers of employees and their job classifications makes it even more imperative that a representative vote be ordered by the Board.

142. For the majority to grant automatic certification without a vote under the circumstances of this case is patently unreasonable.

143. For all of the reasons recorded in this dissent I would dismiss the application and order, as required by the Act, a representation vote.

CONCURRING OPINION OF BOARD MEMBER PAT V. GRASSO; August 12, 1996

I. This is a simple case. As such, there is no need for a lengthy concurring opinion.

2. I concur with the findings of fact of the Vice-Chair.

3. This is an application for certification. The issues raised are (1) whether the employer contravened the Act, and (2) if so, whether the appropriate remedy is automatic certification under section 11 of the Act.

Did the employer contravene the Act?

4. As soon as the union's organizing drive became known to management, it panicked and began to promote an employee association. It quickly moved to identify those individuals who might be willing to support an employee association, and then worked with them in an attempt to frustrate the union organizing drive.

5. Top level management claimed that it had discussed the idea of an association well before the time of the organizing drive. Even if this is so, it is abundantly clear that the idea lay dormant until after the organizing drive started. Only after it had knowledge of the drive did management spend any time and energy -- in fact, a great deal of time and energy -- getting the association off the ground. Management arranged the initial meeting with employees to discuss the association, provided facilities for association meetings, and changed employees' hours of work and paid them in order to promote and reward greater meeting attendance. Moreover, members of management were present for at least some portion of each of these meetings and knew who attended and who did not. Management knew who spoke in favour of the association. To cite but one example of employer interference in the union organizing campaign and involvement in the formation of the association, I refer to a letter dated June 8,1995 that was included with employees' pay envelopes. Paragraphs 4, 5, and 6 of the letter read:

Burlington Golf & Country Club would provide the necessary assistance to establish such an association.

Please indicate your preference below, detach and leave the questionnaire in confidence with Gail or Carolyn before June 19th, 1995. (emphasis added)

Please participate in this exciting opportunity.

6. The suggestion offered in paragraph 43 of the dissenting opinion that the association was nothing more than an innocuous vehicle to facilitate "good work relationships" between the employer and employees is simply not supported by the evidence.

7. On the other side of the coin, when the company caught a single union supporter conducting some brief union business on company time, it indefinitely suspended her. The fact, as suggested by the dissent, that she was returned to her job 3 weeks later as part of a settlement of an unfair labour practice complaint hardly works to the employer's advantage; indeed, as far as I can recall, it was a matter which, as the result of the employer's objection, was not to form part of the evidence. In any event, to suggest that "the form of discipline taken by the employer was legitimate and appropriate under the circumstances and followed the norms employed by the practitioners on the Ontario labour relations scene" is something entirely beyond my experience. To ask the question whether Ms. Ward would have been suspended had she spent the same amount of time encouraging an employee to support the association is to answer it.

Is the appropriate remedy to 2rant automatic certification under section 11 of the Act?

8. There is no issue that the union has established membership support adequate for collective bargaining as required by s.11: 54.5% support is only fractionally short of the amount by which the union could have been certified without a vote under the legislation in place at the time the application was filed.

9. In determining whether to grant an automatic certification, we must evaluate the employer's behaviour in the context of this employer's workplace and these employees. The evidence established a prolonged anti-union campaign by the employer, culminating in the indefinite suspension of the lead inside organizer. It is important to note that the employer's support for an employee association and its treatment of the inside organizer did not occur in isolation, but in juxtaposition. On the one hand, the employer was actively promoting an employee association on company time and company property. On the other, the lead inside organizer was suspended indefinitely for the single documented incident of trade union organizing at the workplace. The message to the employees from such disparate treatment is clear: support the association and you have management's support and blessing; support the union and your job is at risk. It is simply not reasonable to expect that employees who have been worked over in this fashion for a period of more than two months would be able to express their true wishes in a representation vote. There is no question in my mind that automatic certification is the only appropriate remedy in the circumstances.