International Brotherhood of Electrical Workers, Local 804 v. Culliton Brothers Limited, 1996 CanLII 11122

[1996] OLRB Rep. July/August 593

1446-95-U; 1448-95-R International Brotherhood of Electrical Workers, Local 804, Applicant v. Culliton Brothers Limited, Responding Party v. Group of Employees, Objectors

BEFORE: D. L. Gee, Vice-Chair, and Board Members O. R. McGuire and G. McMenemy

APPEARANCES: S.B.D. Wahl and T. Keagan for the applicant; David C. Daniels and Keith Ctdliton for the responding party; Robert Anagnostopottlos and Dale F. Fitzpatrick for the objecting employees.

DECISION OF THE BOARD; July 16, 1996

1. Board File No. 1446-95-U is an application filed on July 11, 1995 under what was then section 91 of the Labour Relations Act (the "old Act") in which the International Brotherhood of Electrical Workers, Local 804 ("Local 804" or the "union") sought, among other things, certification pursuant to what was then section 9.2 of the old Act and an order that Gary Kasten be reinstated to his employment with Culliton Brothers Limited ("Culliton") with compensation. Board File No. 1448-95-R is an application for certification also filed by Local 804 on July 11, 1995.

2. On November 10, 1995, during the currency of the hearing of these matters, the Labour Relations and Employment Statute Law Amendment Act, 1995 was enacted. Pursuant to section 3 of the Labour Relations and Employment Statute Law Amendment Act, 1995, with the exception of sections 5, 8, 9 and 9.1 of the old Act, these applications are to be determined as if the Labour Relations Act, 1995 (the "Act") had been in force at all material times. Accordingly, references to section numbers in this decision will be to the applicable sections of the Act.

3. On July 26, 1995, the first day of hearing, the Board heard a motion by the responding party that the union not be permitted to amend its pleadings to include additional particulars which were filed with the Board and served on the other parties by way of a letter dated July 21, 1995. The objecting group of employees supported the responding party's motion. Neither the responding party nor the objecting group of employees asserted that they would be prejudiced in any way if the union were allowed to amend its pleading in advance of the commencement of the hearing as it sought to do. Both advised the Board that, if the Board were to permit the amendment, they were prepared to proceed with the hearing. The responding party and objecting group of employees asserted that the Board's Rules of Procedure require all allegations to be set out in the application as initially filed and do not permit subsequent amendment. It was argued that the union should be required to withdraw its application and file a fresh one containing all of the particulars on which it sought to rely.

4. The Board's Rules of Procedure grant the Board the discretion to permit a party to call evidence with respect to a matter not particularized in its initial pleadings (see Rules 20, 22 and 25). In the view of the majority of the panel, this was an appropriate case to do so. The Board, the responding party and the objecting group of employees had a copy of the union's additional particulars five days in advance of the hearing. The responding party and objecting group of employees asserted no prejudice arising out of the late filing of additional particulars and specifically indicated that they were prepared to proceed. The argument advanced by the responding party and objecting group of employees was a technical one which, if accepted, would result in a delay in the proceeding and a waste of the parties' and the Board's resources. Accordingly, the union was permitted to amend its applications to include the additional particulars provided in its letter of July 21, 1995.

5. Numerous challenges to the evidence sought to be called by the union were made throughout the hearing. The union sought to call evidence with respect to a variety of matters which were not pleaded in either its initial application or its letter of July 21, 1995. Again, as the Board has a discretion as to whether it will permit a party to call evidence which has not been properly pleaded or particularized as required by the Board's Rules, each of these matters was dealt with on its own merits. Some of the evidence was permitted. Much of it was not. With the exception of the allegations raised by the union in its letter of July 21, 1995, our determination of this matter was reached almost entirely on basis of evidence which was not challenged by the responding party. Accordingly, no purpose would be served by setting out the numerous challenges made and the Board's rulings and reasons therefor.

6. The union's allegations primarily involve two incidents. The first incident involves the termination of a Culliton employee by the name of Gary Kasten. The union asserts that Mr. Kasten was terminated because he is a member of Local 804. The responding party asserts that Mr. Kasten was terminated for unauthorized use of the project manager's phone. The second incident relied on by the union is the circulation of a questionnaire to Culliton's electrical employees by an employee by the name of Larry Gray. The questionnaire asks, amongst other things, whether the individual is in favour of Culliton's becoming a unionized shop and whether he had signed a union card. The union asserts that Mr. Gray is a managerial employee and that the circulation of the questionnaire amounts to unlawful interference in the employees' right to participate in the union. The responding party asserts that Mr. Gray is not a managerial employee such that his actions are not attributable to management and do not constitute a violation of the Act by Culliton.

7. In support of its request for certification pursuant to section 11 of the Act, the union asserts that, as a result of the termination of Mr. Kasten and the circulation of the questionnaire, the true wishes of the employees in the bargaining unit can no longer be ascertained. It is the responding party's position that, even if it is determined that Mr. Kasten's termination and the circulation of the question­naire constitute violations of the Act, neither incident would have had any effect on the ability of the employees to express their true wishes. It is asserted that Mr. Kasten's termination could not have affected the employees' ability to express their true wishes as the employees did not know that Mr. Kasten was a union member and therefore would not have associated his termination with his union membership. Concerning the circulation of questionnaire, which took place primarily at a meeting held on July 17, 1995, the responding party asserts that, according to the union's own version of events, many of the employees had indicated, on July 11, 1995, that they were not interested in joining the union. If they had already determined that they were not interested in joining the union on July 11, 1995, the events of July 17, 1995 could not have influenced them. Finally, the responding party asserts that section 11 is only applicable where the unlawful behaviour occurs during the currency of a union organizing campaign. In the present case, the responding party asserts that there is insufficient evidence of a union organizing campaign being conducted with respect to the employees of Culliton and accordingly, automatic certification cannot be granted.

8. Glenn Diamond, John Williams and Bill Hagerty were called as witnesses by the responding party. Gary Kasten, Martin Rohrmann, Craig Murray and Gary Sheerer were called as witnesses by the union. An agreed statement as to what Brett McKenzie, a witness sought to be called by the union, would testify to, was read to the Board. No evidence was called by the objecting group of employees.

FACTS

9. Based on the evidence heard, we have determined the facts to be as follows.

10. Culliton operates as a residential and industrial, commercial and institutional construction contractor throughout the province of Ontario. The facts material to these applications involve a project awarded to Culliton on June 6, 1995 known as the Manulife Building Project ("Manulife"). The work performed by Culliton on Manulife involved converting a 120,000 square foot, single story concrete block structure from an industrial plant to a commercial office complex. Culliton completely rewired the lighting fixtures and put in computer systems to accommodate the new office complex. Work began on the project on or about June 12, 1995. The substantial completion date was September 15, 1995. Culliton would normally complete a project equivalent in size to Manulife over a span of 12 months. Culliton had three months to complete Manulife. Thus, Culliton was forced to complete the job under extremely tight time constraints. The tradesmen worked a 50 hour work week instead of the usual 40 hour work week.

11. Culliton staffed Manulife in two ways. Seven employees were transferred from other projects which were completed or near completion. The balance of the men were hired through an advertisement which was placed with Canada Manpower. Individuals who contacted Culliton as a result of the Canada Manpower ad were advised to submit a resume. The resume was reviewed following which the individual was contacted for an interview. Some of the interviews were conducted at Culliton's head office by Keith Culliton and/or Bill Hagerty. Some of the interviews were conducted at the job site by Glenn Diamond. Who hired any particular employee depended on who conducted the interview.

12. By the last week in June, 1995, there were 13 to 15 men on the job. By mid-July, there were approximately 16. By the end of July or early August, there were 20 men on the job. By the end of August the number had begun to fall and was approximately 18. By mid-September, there were only 10 men on the job and by mid-October the number was down to five. Throughout June and July, 1995, Culliton had approximately 10 or 11 contracting jobs under way. In response to the certification application, Culliton asserts that there were 30 individuals at work in the bargaining unit on the date of application, July 11, 1995. The union has challenged six of the names and asserts that a seventh, that of Gary Kasten, should be added to the list. Thus, according to the union, there were 25 individuals at work in the bargaining unit on the date of application.

13. Glenn Diamond helped prepare the bid for, and was the foreman or job site superintendent on, the Manulife project. In his capacity as foreman, Mr. Diamond spent approximately 10 percent of his time working with the tools. The remainder of his time was spent performing what can collectively be referred to as supervisory and administrative tasks. Mr. Diamond spent an unusually high amount of time on such tasks due to the time constraints within which the job had to be completed. It is not disputed that Mr. Diamond was employed in a managerial capacity while working on the Manulife project.

14. Bill Hagerty has been employed by Culliton for approximately 23 years. He is the senior electrical estimator. Mr. Hagerty was the office to job site co-ordinator for the Manulife project.

15. John Williams has worked for Culliton for approximately 27 years and has been the Electrical Division Manager since 1981. Mr. Williams' responsibilities include determining where the electrical employees work and supervising the office estimating group. Mr. Diamond was required to report all employee performance issues on Manulife to Mr. Williams.

16. Neil Gunther has been employed by Culliton for 10 years. He was the lead hand on Manulife.

Gary Kasten's Termination

17. On June 7, 1995, Gary Kasten, an unemployed journeyman electrician, saw Culliton's ad at the Canada Manpower office. Mr. Kasten phoned Culliton's Stratford office and spoke to Keith Culliton. At Mr. Culliton's request, Mr. Kasten faxed Mr. Culliton a copy of his resume. Mr. Kasten's resume does not set Out the names of the contractors he has worked for. Following receipt of Mr. Kasten's resume, Mr. Culliton called Mr. Kasten back and arranged for Mr. Kasten to attend an interview with Mr. Diamond on June 8, 1995 at the Manulife job site.

18. On June 8, 1995, Mr. Kasten attended at the Manulife job site for his interview wearing a hard hat bearing a "Nicholls-Radtke Limited" logo. Nicholls-Radtke Limited ("Nicholls-Radtke") is a well-known unionized electrical contractor. Mr. Diamond noticed the hard hat and asked Mr. Kasten if he had worked for Nicholls-Radtke. Mr. Kasten responded that he had and that he was a member of Local 804. Mr. Kasten indicated that he just wanted to work and was not there to cause any problems. After some discussion concerning the nature of Mr. Kasten's job experience, Mr. Diamond gave him a job application and employee handbook and asked him if he could start work on June 12, 1995.

19. On June 9, 1995, Mr. Diamond mentioned to Mr. Hagerty that Mr. Kasten would be starting work on June 12, 1995. Mr. Diamond mentioned that Mr. Kasten was a member of the union and referred to his hard hat as a "union hat". When, later that same day, Messrs. Hagerty and Williams were making up the list of job assignments for the following week, Mr. Hagerty informed Mr. Williams that Mr. Kasten was a union member.

20. Mr. Kasten commenced work on June 12, 1995 wearing his Nicholls-Radtke hard hat. He returned his completed job application form to Mr. Diamond. Mr. Kasten failed to provide his health card number as he had lost his card and had not yet obtained a replacement. By memo dated July 27, 1995, Mr. Kasten was advised to provide Heather in personnel/payroll with his health card number as soon as possible.

21. Mr. Kasten worked from June 12 to June 26 without incident. Mr. Diamond experienced no problems with Mr. Kasten. Mr. Kasten performed his job in an acceptable manner.

22. On June 16, Mr. Diamond interviewed and hired another individual by the name of Steve Brown. Mr. Brown commenced work on June 19, 1995. On June 21, 1995, Mr. Diamond noticed that Mr. Brown carried a Pepsi bottle with him everywhere he went which caused Mr. Diamond to suspect that Mr. Brown was drinking alcohol at work. In Mr. Diamond's view, an electrician drinking on the job is a very serious matter. Initially, the only sign Mr. Diamond could discern that supported his suspicion that Mr. Brown was drinking, was the fact that Mr. Brown was perspiring excessively. However, on June 26, 1995, Mr. Brown began working with a knockout punch and Mr. Diamond noticed that he was mixing up parts. On June 27, 1995, Mr. Brown started to assemble junction boxes on the ceiling which required Mr. Brown to climb ladders.

23. On June 26, 1995 at 12:20 p.m., Mr. Diamond was in his trailer having lunch when an individual identified only as "Fred", the site superintendent employed by Walter Fedy, the project manager, knocked on the door. Fred informed Mr. Diamond that they had a "serious problem"; an employee of Culliton who matched Mr. Kasten's description had used the Walter Fedy phone five or six times that day. Mr. Diamond thought of Mr. Kasten's truck which bore a "Mr. Fix-It" logo and immediately assumed that Mr. Kasten was using the phone to line up personal work. Mr. Diamond advised Fred that he would look into it. Fred said "leave it with me now and I will monitor the situation". At approximately 3:30 p.m. that same day, Mr. Diamond and Fred were out on the job site at which time Fred positively identified Mr. Kasten as the employee who had been using the phone.

24. On June 27, 1995, at approximately 11:00 a.m. Fred told Mr. Diamond, "your buddy has used my phone again". Mr. Diamond told Fred he would look into the matter. Mr. Diamond phoned the shop to speak to Mr. Williams. He was told that Mr. Williams was out until after lunch. Mr. Diamond said he would call back.

25. Mr. Diamond called Mr. Williams back at 1:45 or 2:00 p.m. He told Mr. Williams about Mr. Kasten using the Walter Fedy phone and his suspicions that he was arranging work for himself. Mr. Diamond also told Mr. Williams about his concerns about Mr. Brown drinking on the job. Mr. Williams told Mr. Diamond to leave it with him and that he would get back to him later in the day. Mr. Williams was aware that Mr. Kasten was the employee who he had earlier been informed by Mr. Hagerty was a member of the union.

26. At approximately 2:45 p.m. Brett McKenzie, an organizer for the International Brotherhood of Electrical Workers Construction Council of Ontario, and Michael Wall, an organizer for the Sheet Metal Workers International Association, attended at the Manulife job site. Mr. McKenzie spoke to an electrician and an apprentice and then introduced himself to Mr. Diamond as a representative of the IBEW. Mr. Diamond told Mr. McKenzie not to disturb the men until the end of the day. Mr. McKenzie proceeded to wander around the job site. At approximately 3:30 p.m., Mr. Diamond mentioned the presence of the union representatives to Fred. Fred indicated that they did not have permission to be on the job site and went to look after it. Shortly thereafter the union representatives were removed from the job site.

27. At 3:45 p.m. Fred approached Mr. Williams again and told him that Mr. Kasten had once again used the Walter Fedy phone.

28. At approximately 4:00 p.m. Mr. Diamond again phoned Mr. Williams. He called Mr. Williams as opposed to waiting for Mr. Williams to call him back as promised because "that was the third time Fred had mentioned the problem of the phone calls in a day and a half and [he] was getting sick of it and wanted to know what to do". Mr. Diamond mentioned the fact that the union representa­tives had been on the job site and asked if Mr. Williams had determined how to handle the problems with Messrs. Kasten and Brown.

29. Shortly after the 4:00 p.m. phone conversation, Mr. Williams called Mr. Diamond back and informed him that both Messrs. Kasten and Brown were to be informed at the end of the day that "we have no more work for you". At the time of making this decision, Culliton still had an ad placed with Canada Manpower to hire additional help for the Manulife project.

30. Mr. Diamond, accompanied by Mr. Gunther, met with Mr. Brown at 5:15 p.m. and informed him that "we have no more work for you". At 5:20 p.m., Mr. Diamond, again accompanied by Mr. Gunther, conveyed the same message to Mr. Kasten.

31. It is not disputed that Mr. Kasten did in fact use the Walter Fedy phone. Mr. Kasten used the phone in an effort to contact OHIP and arrange for a replacement health card and to contact his lawyer. Mr. Kasten chose to use the Walter Fedy phone because it is located much closer to the job site than the Culliton phone. Notwithstanding that there were always people about when Mr. Kasten was using the phone he was never told that it was not acceptable for him to do so. Mr. Kasten never sought permission to use the phone.

32. It is clear that the Nicholls-Radtke logo on Mr. Kasten's hard hat indicated to Messrs. Hagerty, Williams and Diamond that he was a member of the union. In the course of giving their testimony, they would often refer to Mr. Kasten as "the Nicholls-Radtke employee" as a short form for referring to Mr. Kasten as the employee who was a member of the union. As indicated above, Mr. Hagerty testified that Mr. Diamond, in reference to Mr. Kasten's Nicholls-Radtke hard hat, indicated that Mr. Kasten was wearing a "union hat". Mr. Diamond did not dispute the proposition that it would have been obvious to people on the job that Mr. Kasten was a union member as a result of the logo on his hard hat.

33. Following Mr. Kasten's discharge, Local 804 filed an application for interim relief (Board File No. 1447-95-M) seeking Mr. Kasten's reinstatement pending the disposition of Board File No. 1446-95-U. Prior to the commencement of a hearing to determine if Mr. Kasten was to be reinstated on an interim basis, Culliton agreed to reinstate Mr. Kasten pending the outcome of the Board's determina­tion of whether he had been unlawfully terminated. Mr. Kasten returned to work on July 14, 1995. During the period of June 28, 1995 to July 14, 1995, as a result of a union referral, Mr. Kasten was employed elsewhere for all but three days.

Circulation of the Questionnaires

34. On Saturday, July 15, 1995, Mr. Diamond, Mr. Gunther and an electrician by the name of Gary Sheerer were working at Manulife. They finished work at approximately 12:00 noon. As they were walking to their cars they met up with an employee of Culliton by the name of Larry Gray. Mr. Gray was employed at the time as a foreman on a project known as the Corunna Pumping Station ("Corunna").

35. Mr. Gray had a questionnaire with him which he indicated he wanted to get the employees of Culliton employed on the Manulife project to fill in. The questionnaire reads as follows:

July ............./ 95

I _____________________________________________ am not in favour of Culliton Brothers Limited

(name)

Electrical Division becoming a unionized shop.

I _____________________________________________ seen a union representative recently.

(have) (have not)

I _____________________________________________ sign a union card

(did) (did not)

Because ______________________________________________________________________

I _____________________________________________ received any communications or pressure

(have) (have not)

print name address home

present job site phone home

signature

36. Messrs. Sheerer, Gray, Diamond and Gunther stepped inside the trailer where it was air-conditioned. Mr. Gray handed out the questionnaire and read the questions aloud. He asked the others to fill out the questionnaire and return it to him. Discussion took place concerning how Mr. Gray could arrange to speak to the remaining employees working on the Manulife project. Mr. Diamond indicated that any meeting would have to take place after working hours and off of the job site. Mr. Diamond did not want the meeting to affect the work schedule. He had also heard years ago that such meetings should not take place during working hours or on the job site. It was decided a meeting would be held after hours on Monday, July 17, 1995 in a nearby parking lot. There was then discussion as to how the employees were to be informed of the meeting. It was decided that Mr. Diamond should not be involved in any way but rather Mr. Gunther would advise the employees of the meeting. Mr. Gunther is with the employees at the start of the day, at breaks and at lunch and accordingly he would have the opportunity to speak to the employees about the meeting.

37. On July 17, 1995 during the afternoon break, Mr. Gunther announced to the employees that there would be a meeting with a senior Culliton employee after work in the parking lot. Approximately 12 people attended the meeting. Mr. Gray advised the employees that he had retained a lawyer to represent the employees of Culliton to oppose Culliton going union. He asked the employees to fill in the questionnaire. Mr. Gray had attended at the homes of some of the employees and asked them to sign the questionnaire over the weekend. The questionnaire was thus only given to those employees who had not already completed it.

38. As indicated above, Mr. Gray has been employed by Culliton for 22 years. He is the third most senior Culliton employee and the most senior electrical field employee.

39. As of July 17, 1995, Mr. Gray was employed by Culliton as a foreman on the Corunna project. Mr. Gray worked on the Corunna project from August, 1994 through to July, 1995. The Corunna project involved a considerable amount of high voltage wiring, an area in which Mr. Gray had previous experience. Mr. Gray performs approximately 60 percent of Culliton's high voltage work.

40. Mr. Gray shares a desk at Culliton's office with other foremen who have paperwork to do.

41. Mr. Gray provides advice and guidance to Mr. Hagerty when Mr. Hagerty estimates high voltage jobs. Mr. Gray advises Mr. Hagerty as to how the work would be performed and how he would organize the work. Mr. Gray advises Mr. Hagerty on the site conditions and how such conditions may affect performance of the work based on his past experience working on high voltage projects. Mr. Gray also assists with the preparation of bids by doing the take-offs.

42. Mr. Gray spends some portion of his time in the office doing take-offs from drawings and assisting with estimates. Although the evidence does not establish the percentage of time Mr. Gray spends in the office, he has been seen working in the office by employees who attend at the shop to pick up supplies or enquire about upcoming work opportunities. On these occasions, Mr. Gray has been sitting at a desk outside of Mr. Hagerty's office doing take-offs from drawings and working on blueprints.

43. The responsibilities of a foreman include completing a time card on behalf of each member of the crew. The foreman fills in the number of hours worked and a cost code indicating the type of work performed and initials the card. Foremen report any problems they have with employees to John Williams. They do not have the authority to discipline employees. Where an employee needs time off work and the job is outside of Stratford, the employee will speak to the foreman. Where the job is in Stratford, the employee will contact the Culliton office. Where emergency overtime work is necessary, the foreman will contact the office to discuss it. If the office is not available, the foreman will make the decision on his own. When Saturday overtime is required, the foreman will contact the office to discuss whether the overtime is necessary. The foreman will decide who will work the overtime as the foreman knows who has been working on each section and who can most expeditiously perform the work. Foremen are responsible for examining the blueprints, distributing work amongst the crew, and ensuring installations are done in good, workman-like manner. Foremen can order standard materials from the office and would speak to Mr. Williams concerning a need for personnel. Foremen are responsible for advising employees with respect to safe work practices and any potential or actual dangers on the job. A foreman is never appointed as the employee health and safety representative on a job. On a typical project, a foreman would spend between 70 and 75 percent of his time working with the tools. The office to job site co-ordinator (either Mr. Williams or Mr. Hagerty) would attend at the job site once every two weeks.

Organizing Campaign

44. In November, 1994, Mr. McKenzie attended at a Culliton job known as the Brantford Sewage Treatment Plant where he met Mr. Diamond.

45. In March, 1995, Mr. McKenzie was contacted by an electrical employee of Culliton by the name of Craig Murray who expressed an interest in the union. At the time of the contact, Mr. Murray was attending trade school at Conestoga College. Mr. McKenzie asked Mr. Murray to contact him once he was back at work. Mr. Murray contacted Mr. McKenzie for a second time in April, 1995. Mr. McKenzie advised Mr. Murray that he was busy with problems involving another local and asked Mr. Murray to provide him with a list of Culliton's jobs and electrical employees and some insight into the employees to contact. Mr. Murray provided Mr. McKenzie with some information and advised him that he was working on the St. Joseph Hospital job and that it was a sixth floor renovation.

46. On or about June 1, 1995, Mr. McKenzie attended at the St. Joseph Hospital job and spoke with three Culliton employees. In the course of his conversation with the third employee, Mr. McKenzie was approached by the foreman. Mr. McKenzie explained who he was and was told to leave by the foreman. In the course of his conversation with the employees, Mr. McKenzie was informed of a job at the Simcoe Hospital and the LCBO in Stratford. Shortly, thereafter, Mr. McKenzie was informed by Tom Keagan, a representative of the IBEW, that Culliton had been awarded the Manulife job. Mr. Keagan had been informed of the size and timetable for the Manulife job by a union contractor that had bid on the job. Mr. Keagan was aware that Culliton would have to hire a number of electricians if they wanted to bring the job in on time.

47. Approximately one week later, Mr. Keagan spoke with Mr. McKenzie and informed him that he had received a call from Mr. Kasten who had informed him that he had obtained a job with Culliton on the Manulife job. Mr. Keagan also informed Mr. McKenzie that there was a listing at Canada Manpower indicating that Culliton was hiring electricians. Mr. McKenzie then contacted members of the union and asked them to respond to the Canada Manpower ad in an attempt to secure work with Culliton. These individuals' membership would be used in an attempt to certify Culliton and they would supply information to the union. They were not asked to attempt to sign up other Culliton employees. Three such individuals were successful in obtaining employment with Culliton. They were: Steve Lusk, Gary Sheerer and Tony Moser. Messrs. Murray and Rohrmann, although not referred to Culliton by the union, had signed cards and were likewise asked to provide information to the union. Although not, strictly speaking, accurate with respect to Messrs. Murray and Rohrmann, all five of these five individuals were referred to during the proceedings as "salts".

48. Mr. McKenzie also contacted Mr. Kasten. Mr. Kasten confirmed that he was working for Culliton at Manulife. He explained that he had got the job on his own and that Mr. Diamond had noted that he was a union member. Mr. Kasten indicated that he told Mr. Diamond that he was not there to organize, he just wanted a job. Mr. McKenzie told Mr. Kasten that that was fine, he should keep his head down and not give them any excuse to fire him.

49. Prior to June 27, 1995, Mr. McKenzie had contacted six electrical employees of Culliton, not including the salts or Mr. Kasten, who indicated an interest in speaking to him.

50. As indicated above, on June 27, 1995, Mr. McKenzie attended at the Manulife job site with Mr. Wall from the Sheet Metal Workers International Association at approximately 2:45 p.m. Mr. McKenzie spoke to two Culliton electrical employees for a period of time, moved on and then encountered Mr. Diamond. Mr. McKenzie introduced himself to Mr. Diamond as an organizer for the IBEW and asked if he remembered him from the Brantford Sewage Treatment job. Messrs. McKenzie and Diamond had a discussion about the job and the tight time table. Mr. Diamond emphasized to Mr. McKenzie that he not talk to the employees as there could be no delay in the work. Mr. McKenzie continued to walk around and observe the job and the individuals working on it. At approximately 3:45 p.m., Messrs. McKenzie and Wall were approached by Fred and asked to leave the site.

51. On June 27, 1995, Mr. Kasten was terminated.

52. On July 10 and 11, 1995, Mr. McKenzie attended at four separate Culliton job sites where he spoke to a number of employees. Over the same two days, Mr. McKenzie also attempted to contact a number of employees by telephone. In total, Mr. McKenzie attempted to contact 20 employees. He spoke with 17. Five of the 17 contacted were the salts. They continued to support the union. Five of the six electrical employees who Mr. McKenzie had previously spoken to and had expressed an interest in speaking to him were contacted. One was reached while working on a job site and informed Mr. McKenzie that he could not be seen talking to him. A second individual contacted responded that Culliton was a non-union company and that they had already gotten rid of one union guy. The remaining three flatly indicated that they were not interested in talking to Mr. McKenzie. The remaining seven individuals contacted had not been previously contacted by Mr. McKenzie. They would not speak to him.

53. Three additional salts were subsequently hired by Culliton, one on July 17 and two in August.

DECISION

54. Having regard to the foregoing facts, it is our determination that Mr. Kasten's termination was motivated at least in part by the fact that he is a member of the union and was thus a violation of the Act. It is our further determination that Mr. Diamond's sanctioning of the circulation of the questionnaire and participation in discussions concerning its circulation constitutes a violation of the Act. We have also determined that Mr. Gray is a managerial employee. As such, his circulation and collection of the questionnaire amounts to interference with the employees' right to participate in the lawful activities of a trade union and is thus a violation of the Act attributable to Culliton. As a result of the foregoing violations of the Act, it is our determination that the employees would be unable to express their true wishes in a representation vote and that there is no remedy which would counter the effects of the violations. Finally, it is our finding that the trade union has membership support adequate for the purposes of collective bargaining. Accordingly, it is our determination that the union is to be certified pursuant to section 11 of the new Act. Our reasons follow.

Gary Kasten's Termination

55. The decision to terminate Mr. Kasten was made by Mr. Williams. According to Mr. Williams, he decided to terminate Mr. Kasten, as opposed to simply telling Mr. Kasten to cease using the phone or inquiring as to why he was using the phone, because he wanted to handle the problem quickly and keep the job moving. In our view, this explanation is simply not probable in all of the circumstances.

56. As indicated above, Culliton was under extreme pressure to substantially complete the Manulife job, a job which would normally take a period of 12 months, in only three. The severe time constraints Culliton was under to bring the job in on time were stressed repeatedly by the responding party's witnesses. In an effort to complete the job on time, the employees were working a 50 hour, instead of a 40 hour, work week. Culliton was unable to complete the job on time with its existing complement of electricians and therefore placed an ad with Canada Manpower to hire more. In fact, at the time of Mr. Kasten's discharge, Culliton was still in the process of hiring men to work on the Manulife project.

57. Culliton had no problems with Mr. Kasten's job performance. He performed all of his job duties as an electrician adequately. The only problem Culliton had with Mr. Kasten was his use of the Walter Fedy telephone, a problem which is isolated to June 26 and 27, 1995.

58. At the time Mr. Williams was deciding what to do about Mr. Kasten's use of the phone he was aware of the fact that Culliton was still in the process of hiring men to work on Manulife. Mr. Williams had to realize that, if Mr. Kasten was terminated, he would have to be replaced. Either Mr. Williams or Mr. Diamond would be required to review additional resumes and conduct even more interviews. Mr. Williams' decision to terminate Mr. Kasten had the effect of losing a competent electrician when Culliton was in need of such skilled help and creating additional work for Messrs. Williams and Diamond. Thus, the decision to terminate Mr. Kasten cannot be explained on the basis that Mr. Williams wanted to handle the situation quickly and keep the job moving.

59. Further, we note that Mr. Diamond was aware of at least one explanation as to why Mr. Kasten may have been using the phone which, while not excusing his behaviour, would have cast it in a different light. Mr. Diamond was aware of the fact that Mr. Kasten had failed to provide his heath card number on his job application form and had quite recently been reminded that it was required by Culliton's personnel office. In such circumstances, one would have expected Mr. Diamond to at least ask Mr. Kasten about his use of the phone.

60. We also view the circumstances surrounding the dismissal of Mr. Brown as dubious. Mr. Diamond suspected Mr. Brown of drinking on the job as of June 21, 1995, a matter which Mr. Diamond viewed as "very serious", and yet he did nothing about it until six days later and then only as an aside when discussing the problem of Mr. Kasten's use of the phone with Mr. Williams. According to Mr. Diamond, Mr. Brown's drinking only became a problem when he started using the knockout punch on June 26 and climbing a ladder on June 27. It was at this time that Mr. Brown represented a safety risk to himself and other employees.

61. Mr. Diamond must have known in advance of June 26, 1995 that Mr. Brown's job would soon require him to use a knockout punch and climb a ladder. If the matter was as serious as Mr. Diamond attested to, it is simply not probable that he would have waited until 11:00 a.m. on June 27, 1995 to phone Mr. Williams. Likewise, if the situation presented as serious a safety risk as Mr. Diamond testified to, it is not probable that Mr. Brown would be permitted to continue drinking and climbing a ladder until the end of the working day.

62. On balance, we are not persuaded that the problems with Mr. Brown were as serious as Culliton's suggests or the basis for his termination. Rather, the circumstances of Mr. Brown's termina­tion suggest that he was terminated to lend credibility to the employer's assertion that Mr. Kasten was terminated for performance reasons and not as a result of his union membership.

63. As a result of the foregoing, we do not view the Culliton's assertion that Mr. Kasten was terminated for the use of the phone as probable.

64. When the circumstances surrounding Mr. Kasten's employment with Culliton and his termination therefrom are reviewed, it is our conclusion that Mr. Kasten's termination was motivated, at least in part, by his union membership and Culliton's apprehension that the union may be interested in organizing its employees.

65. We note that the fact that Mr. Kasten was a union member was noteworthy to the manage­ment staff of Culliton. Mr. Diamond considered it important enough to tell Mr. Hagerty, and Mr. Hagerty thought it important enough to pass on to Mr. Williams. The fact that Mr. Kasten was a union member was thus of some significance to these individuals.

66. A representative of the union was on the job site the very day that Mr. Kasten was terminated. The union representative's presence on the site was conveyed to Mr. Williams minutes before he made the decision to terminate Mr. Kasten.

67. Given the improbability of Culliton's explanation for terminating Mr. Kasten, Mr. Kasten's union membership and the presence of the union organizer on the Manulife job site on the date of his termination, it is our determination that Mr. Kasten's termination was motivated, at least in part, by his union membership and accordingly constitutes a violation of section 72 of the Act.

Circulation of Questionnaires

68. As indicated above, it is conceded by Culliton that Mr. Diamond is a manager. It is not disputed that, as a manager, his conduct is attributable to Culliton (see: St. Laurent I.G.A., [1984] OLRB Rep. May 745).

69. Mr. Diamond participated in a conversation with Mr. Gray, in the presence of Messrs. Gunther and Sheerer, in which Mr. Diamond implicitly sanctioned the circulation of a questionnaire which asked questions in violation of section 119 of the Act. Mr. Diamond advised Mr. Gray as to when and where the questionnaire could be circulated. We do not accept that Mr. Diamond's conduct should be excused on the basis that he considered himself equally affected by the union's application as, prior to the Manulife job, it is asserted that he was not engaged in a managerial capacity. Mr. Diamond knew that his status as of the time of the discussion was managerial as is evidenced by his indication that he should not be the one to tell the employees about the meeting. In our view, as managerial employee, aware of his status as such, Mr. Diamond's conduct was a breach of the Act attributable to Culliton.

70. If Mr. Gray is a manager, his circulation of the questionnaires constitutes a further violation of the Act by Culliton (see: St. Laurent I.G.A, supra; J. Pascal Inc., [1985] OLRB Rep. July 1075; Rainscreen Metal Systems Incorporated, [1989] OLRB Rep. May 482; and Maverick Mechanical Contractors Limited, [1996] OLRB Rep. Jan. 17).

71. It is our determination that Mr. Gray exercises managerial functions. During the period of time immediately prior to the circulation of the questionnaires, Mr. Gray was engaged as the foreman on the Corunna project. The Corunna project involved a considerable amount of high voltage work, Mr. Gray's area of specialty. Mr. Gray assisted Mr. Hagerty with the preparation of the estimate for the Corunna job, advising him on how the work would be performed and how he would organize the work. Mr. Gray provided Mr. Hagerty with advice on how the site conditions would affect the performance of the work. Mr. Gray's advice would indicate the number of man-hours it would take to complete the job and influence the estimate in this regard. Mr. Gray spent some time in Culliton's office working at a desk located outside of Mr. Hagerty's office doing take-offs from the blueprints and otherwise working on aspects of the estimate.

72. Once the Corunna job began, Mr. Gray assumed the role of foreman. Based on the evidence as summarized above as to a foreman's responsibilities, it is apparent that Mr. Gray was responsible for examining the blueprints, distributing work amongst the crew and ensuring that installations were performed in a good, workman-like manner. He was responsible for bringing any performance issues to the attention of Mr. Williams. He would raise the need for additional personnel with Mr. Williams or Mr. Hagerty. Mr. Gray would determine who would be assigned overtime work and was responsible for all safety issues. The office to job site co-ordinator would visit the job site only once every two weeks.

73. Based on the foregoing, Mr. Gray would have been involved in determining the manpower requirements for the Corunna job, determining how the work was to be performed and how such work was to be assigned. Once the job commenced, Mr. Gray was solely responsible for supervising the day-to-day operations on the job site. Mr. Gray supervised all work, determined when overtime was required, determined who worked the overtime and alerted higher management to a need to increase or decrease the employee complement on the job site or employee performance problems. Having regard to such circumstances, it is our determination that Mr. Gray was performing managerial functions in the course of his job duties on the Corunna project.

74. As a result of our determination that Mr. Gray is a manager, it follows that his circulation of the questionnaires constitutes a violation of the Act by Culliton.

Organizing Campaign

75. The responding party asserts that section 11 cannot be applied in the absence of a union organizing campaign and that a campaign is absent on the facts of the instant case. For the reasons that follow, it is our determination that the applicant was engaged in an organizing campaign at the time of the violations of the Act. As our determination in this regard is determinative of this issue, we make no comment with respect to whether the responding party's position, that section 11 cannot be applied in the absence of an organizing campaign, is sustainable.

76. Set out above are our findings of fact with respect to the nature and extent of the union s organizing campaign. The facts are derived largely from the agreed statement read to the Board setting out Mr. McKenzie's evidence. In summary, Mr. McKenzie visited a Culliton job site in November, 1994. In April, 1995, he obtained the location of Culliton job sites and the names and personality profiles of a number of Culliton electrical employees from Mr. Murray. On June 1, 1995, Mr. McKenzie visited one of the Culliton job sites Mr. Murray told him about and, in the course of speaking to Culliton employees, found out about additional job sites. Mr. McKenzie was ordered off the job site by the Culliton foreman. In approximately the third week in June, the union set about contacting its unem­ployed members with a view to having them apply for work at Culliton and act as salts. Three such individuals were successful. The union had cards signed by three individuals. Prior to June 27, 1995, six additional Culliton employees were contacted by the union. On June 27, 1995, Mr. McKenzie attended at the Manulife job site, spoke to two employees, and spent 45 minutes walking around the job site. On July 10 and 11, the union contacted 17 employees. An additional salt was hired by Culliton on July 17 and two in August.

77. On the basis of the foregoing, it is clear that the union had commenced its organizing campaign and had taken active steps to organize the employees of Culliton by the time of Mr. Kasten's discharge.

Application of Section 11

78. As indicated above, the union has requested that it be certified pursuant to section 11 of the Act. Section 11 provides as follows:

11.(l) 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:

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

2. 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.

79. Having determined that the termination of Mr. Kasten and the circulation of the question­naires constitute violations of the Act, it remains for us to determine whether the result of the violations is such that the true wishes of the employees would not be reflected in a vote; no other remedy, including a vote, would counter the effects of the violations; and whether the union has membership support adequate for the purposes of collective bargaining.

80. The responding party asserts that Mr. Kasten's termination could not have affected the employees' ability to express their true wishes as there is no evidence that Mr. Kasten's co-workers knew that he was a union member. As indicated above, the Nicholls-Radtke logo on Mr. Kasten's hard hat was an indicator to Messrs. Diamond, Williams and Hagerty that Mr. Kasten was a union member. Mr. Diamond, in conversation with Mr. Hagerty, referred to Mr. Kasten's hard hat as a "union hat". Mr. Kasten wore his Nicholls-Radtke hard hat while working on Manulife.

81. If Mr. Kasten's union membership was readily apparent to Mr. Diamond from his "union hat", it is the probable inference that it would have been equally apparent to his co-workers. In fact, Mr. Diamond did not dispute that it would have been obvious to people on the job that Mr. Kasten was a union member from the logo on his hard hat. Accordingly, we are not persuaded that Mr. Kasten's co­workers were not aware that he was a union member.

82. As far as the evidence demonstrates, Mr. Kasten was the only individual to wear a union hard hat. Mr. Kasten was abruptly fired without compelling reason from a very time sensitive job on the very day that an IBEW representative spent 45 minutes touring the site in full view of the employees. The IBEW representative spoke with two employees. In our view, under such circumstances, it is entirely likely that Culliton's employees associated Mr. Kasten's termination with his union member­ship. We are supported in this determination by the evidence of Mr. McKenzie which was agreed to by the parties wherein it is stated that one employee he contacted on July 10 or 11, 1995, who had previously expressed an interest in talking to him, indicated that Culliton had gotten rid of "one union guy". Thus, it appears that this individual knew of Mr. Kasten's union membership and felt he had been terminated as a result.

83. The responding party asserts that Mr. Gray's circulation of the questionnaires could not have impacted on the employees' ability to express their true wishes as the union contacted 17 employees on July 10 and 11, 1995, who (aside from the five salts whose support for the union remained unchanged) would not speak to the union. In the responding party's submission, such evidence indicates that, as of July 10 or 11, 1995, the employees' support or lack thereof for the union had already been determined. We do not agree. There were at least 25 employees in the bargaining unit on the date of application. We have no evidence as to whether at least eight of the employees had or had not made up their minds on the issue of union representation prior to Mr. Gray's circulation of the questionnaires. Further, simply because an employee indicated he was not interested in the union on July 10 does not mean that subsequent events could have no impact.

84. Finally, the responding party suggests that Mr. Kasten's reinstatement on July 14, 1995 had the effect of reversing any adverse impact his termination may have had on the ability of his co-workers to express their true wishes. We do not accept that Mr. Kasten's reinstatement would have ameliorated the impact of his discharge. The Board has rejected this proposition in similar circumstances on a number of occasions (see: Zest Furniture Industries Limited, [1987] OLRB Rep. Feb. 299; Elbertsen Industries Limited, [1984] OLRB Rep. Nov. 1564; J. Sousa Contractor Limited, [1988] OLRB Rep. Oct. 1027). In addition, even if Mr. Kasten's reinstatement had the effect of reassuring some of the employees, it is our view that the circulation of the questionnaires immediately thereafter would have caused the employees to once again question whether supporting the union would not amount to a threat to their job security.

85. The Board has commonly held that the termination of a union supporter has a chilling effect on the members of the bargaining unit by demonstrating to them that the employer is prepared to use its economic power to penalize employees who seek to exercise their rights under the Act and that such a termination makes it unlikely that their true wishes regarding union representation may be ascertained (see: Carleton University Students' Association Inc., [1993] OLRB Rep. Oct. 938; Royal Shirt Company Limited, [1993] OLRB Rep. Nov. 1177; CMP Group (1985) Ltd., [1993] OLRB Rep. Dec. 1247; Domus Industries Ltd., [1994] OLRB Rep. Dec. 1630; Basile Interiors Ltd., [1994] OLRB Rep. Aug. 963; Barton Feeders Inc., [1993] OLRB Rep. Feb. 89). In DI-AL Construction Limited, [1983] OLRB Rep. Mar. 356, the Board described the effect of the termination of a union supporter on his co-workers in the following terms:

86. A discharge is one of the most flagrant means by which an employer can hope to dissuade his employees from selecting a trade union as their bargaining agent. The respondent's action in discharging Mr. Holland because of his support for the union would have made clear to employees the depth of the respondent's opposition to the union and likely have created concerns among them that if they were also to support the union, it might jeopardize their own employment. In the face of the discharge I doubt that the employees would now be able to freely decide for or against trade union representation. This is particularly so given the small size of the bargaining unit and the respondent's earlier conduct. In these circumstances, I am satisfied that because of the respondent's unlawful conduct, the current true wishes of the employees are not likely to be ascertained in a representation vote. Accordingly I am of the view that the applicant should be certified pursuant to the provisions of section 8 of the Act.

87. Accordingly, it is our determination that Culliton's discharge of Mr. Kasten and the circula­tion of the questionnaires would have caused the employees to be concerned that, if they were to support the union, their own employment would be in jeopardy. As a result, we do not believe that a representation vote would likely reflect the true wishes of the employees. Given the gravity of the violations, we are also of the view that there is no other remedy, including the taking of a representation vote, which would counter the effects of the violations.

88. Finally, we must consider whether the union has adequate membership support for the purposes of collective bargaining. The union has filed six membership cards. Removing Mr. Gray from the list of employees, as we have concluded that he is managerial, and adding Mr. Kasten, the maximum number of employees on the list for the purposes of the count would be 30. If all of the union's challenges were successful, the number of employees on the list for the purposes of the count would be 25.

89. There is no precise numerical level of support stipulated in the Act, nor has the Board in past cases, decided under a similar provision that existed prior to Bill 40, applied a bright line test of a particular percentage of support required to meet this condition. Rather, the Board has regard to the circumstances of the case before it. Some of the factors the Board has considered were set out in Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848, as follows:

(1) the stage of the union's campaign at which the employer conduct occurred (Skyline Hotel Limited, [1980] OLRB Rep. Dec. 1811; District of Algoma Home for the Aged (Algoma Manor), [1979] OLRB Rep. Apr. 269);

(2) the circumstances surrounding the cards signed prior to the employer interference and the number of cards signed (Lorain Products, [1977] OLRB Rep. Nov. 734);

(3) the existence of a full-time unit which showed membership sufficient to support collec­tive bargaining by its part-time counterpart (Robin Hood Multifoods, [1981] OLRB Rep. July 972; Windsor Airline Limousine Limited, [1981] OLRB Rep. Mar. 398);

(4) the severity of the employer conduct insofar as it related to the number of cards signed -"the chilling effect" (K-Mart, [1981] OLRB Rep. Jan. 60);

(5) the percentage of unit signing the cards where support for the union is at an extremely low level (5%) (Sommerville Belkin, [1980] OLRB Rep. May 796).

89. In the instant case, the violations committed were severe and occurred at the beginning of the union's attempt to solicit membership amongst Culliton's employees. Culliton's conduct, being swift and sure, can be said to have nipped any organizing efforts in the bud. We simply cannot and do not find on the facts that the organizing campaign had already faltered at the time of the unfair labour practices. Because of the early stage at which the employer's unfair labour practices occurred, one would expect the union's level of support, as evidenced by signed cards, to be somewhat low. With respect to the ICI sector of the construction industry, the Act operates to automatically bind an employer certified pursuant to an application under 158(1) to the provincial agreement to which the applicant trade union is bound (see J. Sousa Contractor Limited, [1988] OLRB Rep. Oct. 1027). As a result, the union is not required to engage in collective bargaining in order to achieve its first ICI agreement and will not be required to engage in bargaining for an ICI agreement until such expires in April, 1998. Having regard to the foregoing circumstances, it is our view that the union has adequate membership support for the purposes of collective bargaining.

90. We are thus satisfied that all of the elements necessary for certification under section 11 have been established by the union. Accordingly, we find it appropriate to certify the union pursuant to section 11.

91. Section 160(1) of the Act provides for the issuance of one certificate confined to the industrial, commercial and institutional sector and a second certificate in relation to all other sectors in the appropriate geographic area(s). Therefore, pursuant to section 160(1) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario in respect of all electricians and electricians' apprentices in the employ of Culliton Brothers Limited in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.

92. Further, pursuant to section 160(1) of the Act, a certificate will issue to the applicant trade union in respect of all electricians and electricians apprentices in the employ of Culliton Brothers Limited in all sectors of the construction industry in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township), excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.

93. Further, with respect to the responding party's violations of the Act as aforesaid, the Board directs, pursuant to section 96 of the Act, that the responding party:

(a) compensate Gary Kasten for his lost wages and benefits for the period of his termination less the amount of his earnings from other employ­ment during this period; and

(b) sign and post one copy of the attached notice marked Appendix "A" in conspicuous places at each of its premises and job sites, and to keep such notices posted for 15 working days and to take all reasonable steps to ensure that the notices are not altered, defaced or covered up.

94. The Board will remain seized of this matter with respect to the implementation of this decision, including the calculation of the amounts of compensation in paragraph 93 (a) above should there be any disagreement with respect thereto.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

THIS NOTICE HAS BEEN POSTED IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR REI.ATIONS BOARD ISSUED AFTER A HEARING IN WHICH THE UNION AND THE COMPANY PARTICIPATED. THE ONTARIO LABOUR RELATIONS BOARO FOUND THAT CULLITON BROTHERS LIMITED VIOLATED THE LABOUR RELATIONS ACT. 1995 BY TERMINATING GARY KASTEN AND BY CIRCULATING OUESTIONNAIRES ENQUIRING ABOUT EMPLOYEES' UNION MEMBERSHIP.

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

ALL ELECTRICIANS AND ELECTRICIANS’ APPRENTICES EMPLOYED BY CULLITON BROTHERS LIMITED IN THE INDUSTRIAL. COMMERCIAL AND INSTITUTIONAL SECTOR OF THE CONSTRUCTION INDUSTRY IN THE PROVINCE OF ONTARIO AND IN ALL OTHER SECTORS OF THE CONSTRUCTION INDUSTRY IN THE REGIONAL MJNICIPALITY OF WATERLOO (EXCEPT THAT PORTION OF THE GEOGRAPHIC TOWNSHIP OP BEVERLY ANNEXED BY NORTH DUMPRIES TOWNSHIPS. SAVE AND EXCEPT NON-WORKING FOREMEN AND PERSONS ABOVE THE RANK OP NON-WORKING FOREMAN.

THE LABOUR RELATIONS ACT. 1995 GIVES ALL ENPLOYEES THESE RIGHTS,

TO ORGANIZE THEMSELVES,

TO FORM, JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES

OF A TRADE UNION,

TO ACT TOGETHER FOR COLLECTIVE BARGAINING,

TO REFUSE TO DO ANY AND ALL OF THESE THINGS.

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

CULLITON BROTHERS LIMLTED

PER: _____________________________________

(AUTHORIZED REPRESENTATIVE)

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

THIS NOTICE MUST REMAIN POSTED FOR 15 CONSECUTIVE WORKING DAYS

DATED THIS 16TH DAY OF JULY, 1996.