Shawn Joseph Arsenault v. International Brotherhood of Electrical Workers, 1996 CanLII 11195

[1996] OLRB REP. SEPTEMBER/OCTOBER 721

0448-95-R; 0966-95-U Shawn Joseph Arsenault, Applicant v. International Brother­hood of Electrical Workers and the IBEW Construction Council of Ontario, Locals 105, 115, 120, 303, 353, 402, 530, 586, 773, 804, 894, 1687 and 1739, Responding Parties v. Bytown Electrical Services Ltd., Intervenor; International Brotherhood of Electrical Workers, Local 586, Applicant v. Bytown Electrical Services Ltd., Re­sponding Party

BEFORE: Christopher Albertyn, Vice-Chair, and Board Members R. M. Sloan and G. McMenemy

APPEARANCES: Roger Mills and Shawn Arsenault for the applicant; Michael Gottheil, Ken Scott and Steven Bradley for the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario, Locals 105, 115, 120, 303, 353, 402, 530, 586, 773, 804, 894, 1687 and 1739; Michael S. Ruddy and Guy Boyd for Bytown Electrical Services Ltd.

DECISION OF CHRISTOPHER ALBERTYN, VICE-CHAIR, AND BOARD MEMBER G. MCMENEMY; September 30, 1996

1. These applications were heard together. One is an application under subsection 63(2) of the Labour Relations Act, 1995 ("the Act") for the order of a vote by employees as to whether the union's ICI bargaining rights with Bytown Electrical Services Ltd. (sometimes referred to as "the company" or as "Bytown") should be terminated. The other is an application by the union claiming that Bytown has violated sections of the Act, including section 70 and subsection 63(16), by initiating the termination application.

Background

2. Bytown carries on business out of Ottawa and its surrounding areas as an electrical contrac­tor in the ICI and residential sectors of the construction industry. It was bound by the ICI provincial collective agreement between the Electrical Trades Bargaining Agency (ETBA) of the Electrical Contractors' Association of Ontario (ECAO) and the union (and the IBEW Construction Council of Ontario) effective May 1, 1992 to April 30, 1995, when Mr. Arsenault's termination application was made. Bytown is bound also by the residential collective agreement between the Electrical Contractors' Association of Ottawa and IBEW Local 586. The residential agreement has a different expiry date. The termination application applies only to the ICI collective agreement.

3. Both applications (for termination of bargaining rights and the union's application for relief against Bytown) were launched before the 1995 amendments to the Act. At that stage the parties agreed that the voluntariness of the petition for the termination application was the only matter in issue between them. Following the 1995 amendments to the Labour Relations Act, that issue was replaced by the question of whether or not Bytown initiated the termination application, as understood under subsection 63(16) of the Act. That subsection reads:

63. (16) Despite subsections (5) and (14), the Board may dismiss the application if the Board is satisfied that the employer or a person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application.

The union focused less upon the contention that Bytown or Mr. Boyd had "engaged in threats, coercion or intimidation in connection with the application". The union's principal argument was that "the employer or a person acting on behalf of the employer initiated the application ...". [emphasis added].

4. In the documents filed by the parties prior to the hearing two conflicting versions of events were presented by the union and by Bytown. The union alleged that Mr. Boyd, one of Bytown's directors and its principal officer, had conspired with Mr. Arsenault to bring the termination application, or that Mr. Boyd otherwise pressured and induced Mr. Arsenault to make the application, thereby being its effective initiator. The union indicated that it intended to call Mr. Bradley, a fellow employee of Mr. Arsenault at Bytown at the relevant times, who would testify that Mr. Boyd had made clear to him and Mr. Arsenault that their job security depended upon Bytown going non-union.

5. In reply, Bytown alleged that Mr. Bradley had had various conversations with his estranged wife, in which he had said that he had conspired with Mr. Scott, the union's Business Agent, to claim that Mr. Boyd was involved in Mr. Arsenault's termination application, when that was not in fact so. In return for such false testimony, so Bytown alleged, Mr. Bradley would be assured of work from the union elsewhere in the province.

6. So, prior to the hearing, the documents suggested two rival and conflicting conspiracies: one between Mr. Boyd, Bytown's manager, and Mr. Arsenault to bring the termination application; the other between Mr. Scott, the union's Business Manager, and Mr. Bradley, the union's witness, of Mr. Boyd's alleged violations of the Act.

7. We heard several days of evidence, in Toronto and Ottawa. What emerged was less startling than the documents had suggested and the differences in the competing versions were also less stark. As we expected from the documents filed, the evidence manifested many disputes of fact, but there were no manifest conspiracies. In seeking to find the most probable explanation of what occurred from the evidence of the various witnesses, we have had to determine the credibility of their testimony. We indicate our findings of credibility as we narrate what we regard as the most probable account of what occurred. We mention where there were disputes of fact, and why we favour one version over another. In assessing credibility we have used the usual standard applied by the Board, taking into account such relevant considerations as the clarity of memory, the natural deterioration of memory over time, the internal consistency of a witness's testimony, the consistency of the testimony of different witnesses, the consistency of the testimony in relation to the circumstantial evidence, the ability of the witness to resist the tug of self-interest and the witness's demeanour. Throughout we have sought to determine the inherent probabilities of the factual issues in dispute.

Facts

8. The union is the collective bargaining agent of all electricians and apprentices of Bytown 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, and of those working in the residential sectors in the Counties of Carleton, Lanark, Prescott, Russell and Renfrew in the Province of Ontario. It was voluntarily recognized by Bytown on April 24, 1985, when the company agreed in writing to be bound by the applicable provincial collective agreement. Since then the union has continuously been the collective bargaining agent of Bytown's employees.

9. Bytown is a small electrical contracting company. About 95% of its work is in the ICI sector, about 5% is residential. The relationship between management and employees is relatively close-knit and personal. Besides Mr. Boyd, who is the managing director of the company, and one silent partner in the business, the other shareholder works as an electrician within the company. Mr. Boyd customarily socializes with the company's employees. He has arranged for social gatherings for the company's staff (management and employees), including a weekend at Alexandria Bay and the company has paid for all of the expenses and meals. All of the employees, including Mr. Arsenault, attended the parties arranged by Mr. Boyd. Mr. Arsenault regards himself as being a friend of Mr. Boyd. He has confided in Mr. Boyd, discussing family matters of concern to himself with Mr. Boyd and he has discussed other matters of interest to himself with Mr. Boyd. But Mr. Arsenault denies ever discussing the financial and economic circumstances of the company, or his decertification application.

10. In contrast Mr. Bradley, the union's witness, claims that he and Mr. Boyd discussed any topic freely between themselves, including the financial state of the company. That was frequently their topic of discussion because the company was going through a difficult period during the time of Mr. Bradley's employment. He says that Mr. Boyd complained that the company was paying too much in benefits and salaries and he thought that the solution lay in going non-union. Mr. Boyd denies any conversation with Mr. Bradley as regards any of the financial demands upon the company, including any demands from the industry benefit plans. Mr. Boyd denies ever discussing the state of the company's finances with Mr. Bradley.

11. Mr. Bradley claims that Mr. Boyd frequently suggested that the company go non-union. He says that Mr. Boyd suggested that if the company operated non-union, then instead of the employees being laid off, they could secure full-time positions with the company. Mr. Boyd denies any such discussion. In fact, Mr. Boyd went so far as to state that the mere thought of working in a non-union environment did not enter his head until after he received Mr. Arsenault's decertification application. Mr. Bradley claims that this type of conversation was extremely frequent and that Mr. Arsenault would have been present on occasions when Mr. Boyd was recommending that everyone would be better off if the company were non-union. In Mr. Bradley's words, Mr. Boyd hated the union because of the pressure it was putting on Bytown, and he constantly attacked and cursed the union. Mr. Bradley claims that Mr. Boyd made his non-union preference clear and he urged and encouraged him and Mr. Arsenault to bring a decertification application. Mr. Boyd and Mr. Arsenault deny Mr. Bradley's allegation that Mr. Boyd requested Mr. Bradley and Mr. Arsenault to apply to decertify the union.

12. Mr. Scott, the union's business manager, claims that he spoke to former employees of Bytown, Burke Nugent and Steven Shaw, both of whom were laid off before Mr. Bradley, and they informed him that Mr. Boyd was constantly railing against the union, pleading for its decertification. That is hearsay evidence, elicited during cross-examination of Mr. Scott, and we treat it as being of little weight as to the truth of the content. Mr. Scott says that he did not act upon that information because he regarded Mr. Arsenault as a good union member and he did not anticipate anything coming from Mr. Boyd's solicitation among Bytown's employees to secure a decertification application. Mr. Boyd denies ever suggesting or inducing any employee to apply to decertify the union.

13. The termination application by Mr. Arsenault was made on April 29, 1995. On that date he was the only employee in the bargaining unit and he worked for only one hour on that day. In a previous decision of the Board in this matter, by a different panel, on September 21, 1995, the Board found that Mr. Arsenault's one hour's work on the application date was sufficient to entitle him to bring the application.

14. Mr. Boyd and Bytown claim that they had no knowledge whatsoever of Mr. Arsenault's termination application until Mr. Boyd received a copy of it in the mail, sent to him by the Registrar of the Board. Prior thereto he claims that he had promised no inducement to Mr. Arsenault, nor had he had any discussion whatsoever with Mr. Arsenault in respect of his application. He made no threat, nor any promise to Mr. Arsenault.

15. Bytown complied with its obligations under the collective agreements to the union and to the Electrical Industry of Ottawa benefit plans between the time of its voluntary recognition of the union in 1985 and about 1991. Its compliance included its submitting monthly reports and making the required remittances and contribution payments to the benefit plans.

16. The company suffered a severe downturn in business during 1991 and it found itself with substantial business and cash flow difficulties. It could not afford to pay the remittances and contribu­tions due to the Union, so Mr. Boyd stopped sending the requisite monthly reports and any money to the industry benefit plans. Mr. Boyd was under the mistaken impression that it was not necessary to send the company's monthly reports because he could not make payment of the requisite contributions.

17. The company's financial difficulties arose from some significant defaulting in payment by its customers. Mr. Boyd suffered a heart attack in July 1993 and he was diagnosed to be suffering from congestive heart failure. The company's financial difficulties were not restricted to its obligations to the electrical industry's benefit plans. It was indebted elsewhere. Revenue Canada assessed that the company had a considerable liability in respect of arrear GST payments.

18. In response to its financial crisis, the company did not remit the amounts payable to the electrical industry benefit plans from the salaries of its employees and its own collective agreement obligations. It paid vacation pay directly to its employees, rather than remitting the amounts due under the collective agreement to the benefit plans. The company's failure to remit union dues put its employees' union membership in jeopardy.

19. Bytown's employees were aware of the company's difficulties, whether by being told of the hard times by Mr. Boyd or because their vacation pay and union dues were not paid to the union and they would be notified by the union that the company was in arrear with the payments. They would also not be entitled to vacation pay. An employer's remittances to the benefit plans include vacation pay, health benefits coverage and union dues. Those amounts were not being covered by Bytown for extended periods between 1991 and 1995.

20. Bytown remained in financial difficulty until about the fall of 1993. In November 1993 it was able to resume payments of remittances to the union. Mr. Boyd filed reports on a retrospective basis, commencing with a report for 1991, with payment of some of the remittances and contributions due to the Union.

21. Mr. Scott, the union's Business Manager, has known Mr. Boyd since 1988. At that time he had discovered that Bytown had an apprentice working non-union, despite the company's voluntary recognition of the union in 1985. There were no other difficulties until the company's financial problems in 1991, when it ceased sending remittances to the industry's benefit funds. The electrical industry benefit fund administrators' practice is to send a form letter to the defaulting employer, requesting payment and imposing a penalty for late payment of the dues. If the employer provides a reasonable explanation for the default, then usually the penalty will be waived. If no explanation is forthcoming, then the penalty becomes part of the amount claimed from the employer by the fund administrators. Mr. Scott had several discussions with Mr. Boyd from 1991 onwards concerning Bytown's default of payment of the employer remittances to the benefit funds. Mr. Scott recalls waiving the penalty on at least one occasion.

22. Mr. Boyd, by his own account and that of Mr. Bradley and Mr. Scott, has a volatile or excitable personality. He loses his temper easily and speaks his mind freely. Mr. Bradley and Mr. Scott say that on several occasions Mr. Boyd spoke fiercely against the union, blaming the union for lack of sympathy for the company's financial predicament and accusing the union of causing the company's financial woes. When the company's counsel questioned the union's witnesses, he did so on the assumption that at times Mr. Boyd may have spoken somewhat intemperately, somewhat excessively, even cursed the union, but that in the circumstances, his outbursts and his anger were random and spur of the moment reactions to a difficult situation. The company's counsel suggested that the excessive or exaggerated expressions of antipathy which Mr. Boyd might have made against the union were said in anger, and not with intent. Of all the witnesses, only Mr. Arsenault denied that Mr. Boyd spoke out against the union.

23. Mr. Scott's recollection of his conversations with Mr. Boyd is that Mr. Boyd was excitable whenever he discussed the company's arrear remittances and the consequent penalty imposition. Mr. Scott recalls Mr. Boyd ranting and raving, screaming and shouting, to use his description of the tone of the telephone conversations between them. During one conversation Mr. Boyd claimed that the company was being penalized without notice from the union. Mr. Scott pointed out that the company had received notices of the arrears and of the penalties from the benefit plans administrators, Coughlin & Associates. Mr. Scott says that Mr. Boyd then laughed, saying, "I file those in the garbage". Mr. Boyd denies that he said that. In another conversation Mr. Scott claims that Mr. Boyd was abusive and told him what he could do with his penalties. Mr. Boyd often told Mr. Scott to "get off my back".

24. There were plainly times in Mr. Boyd's conversations with Mr. Scott when Mr. Boyd was not abusive or angry, when he tried to persuade Mr. Scott to give Bytown some concession or indulgence to accommodate the difficult trading circumstances the company faced. Mr. Boyd would say that he felt he had a plan of action which would eventually pay off, that he needed an opportunity to meet the company's various financial obligations and that once the company was on a more firm footing he would ensure that the arrear remittances owed to the union [meaning the benefit funds] would be paid. On such occasions Mr. Scott would explain to Mr. Boyd that he had to send the remittance sheets every month and that he had to respond, and not ignore, the letters of demand he received from the benefit plan administrators. Mr. Scott recommended that Bytown at least pay something every month so as to avoid the imposition of penalties. He said that the benefit plan trustees wanted to see some effort, some endeavour by Bytown to try to meet its payments. That is not what Mr. Boyd wanted to hear. He wanted a full indulgence, to be excused payment of any penalty in respect of the arrears. Mr. Scott was not willing to consider recommending the waiver of penalties until Bytown was complying with its monthly obligations under the collective agreement. Once the actual remittances and the arrears were being paid he was willing to look at the penalties. He wanted to see Bytown complying with the agreement before he was willing to waive past penalties. Mr. Boyd interpreted Mr. Scott's attitude as being unreasonable and unsympathetic towards Bytown. He believed that Mr. Scott (and the union) were hurting Bytown and preventing it from getting back onto its financial feet. He resented Mr. Scott and the union and he blamed them for the company's financial troubles.

25. By the end of 1993 Bytown's cash flow improved to the point that it could start attending to the payment of the arrears it owed to the benefit plans. Mr. Boyd then resumed the submission of remittance reports and he sought to make payment of the arrears. It was from that time that his conversations regarding the penalties and the arrears with Mr. Scott began. They would continue until April 1995, when Mr. Arsenault's termination application was brought.

26. The company's remittance reports and remittances for 1991 and for January to April 1992 work were received by the benefit plans in November 1993. The penalties for that period remained unpaid until a meeting which took place on April 24, 1995, which is more fully described below. The remittance reports and remittances for May to December 1992 and for January to May 1993 were received in December 1993. The penalties for that period remained unpaid until the meeting of April 24, 1995. The remittance reports and remittances for June 1993 to March 1994 were received in April 1994. The penalties for that period remained unpaid until the meeting of April 24, 1995. Other late remittances also incurred penalties.

27. During the long period of Bytown's default of payments to the benefit plans the company at all times paid to its employees the wage rates stipulated in the collective agreement.

28. Certain of the letters of demand for payment from Coughlin & Associates on behalf of the benefit plans sent to the company were produced at the hearing: those of August 25, 1994, September 14, 1994, February 10, 1995, April 3, 1995 and April 5, 1995. The practice of the benefit plans trustees is to send notice of non-payment of remittances to the delinquent employer and, failing payment thereafter, to refer the claim for the arrears to a collection agency. The defaulting employer is notified of the referral.

29. There were several telephone conversations between Mr. Boyd and Mr. Scott concerning the company's default in the payment of its dues to the benefit funds. Mr. Boyd did not agree with the fine which he understood the union to have imposed upon the arrears that the company owed to the benefit plans. At that stage Mr. Boyd was unaware that the benefit plans are a separate legal persona from the union and under only the partial control of the union. He suggested to Mr. Scott that the electrical industry in Ottawa was going through a difficult time and that the union should be helping contractors, such as Bytown, rather than putting obstructions in their way, like the penalties which the company was being required to pay. In Mr. Boyd's words, Mr. Scott did not say very much, remaining pretty cool throughout. He replied merely that Bytown owed the money and it should pay it. Mr. Boyd was furious. He had seen the company through an extremely difficult period, he himself had had a heart attack during that period, the company had battled to make payment of part of the arrears it owed and, in Mr. Boyd's view, it was making a sincere and admirable effort to meet its obligations, and the response he got was terse and unsympathetic. He swore at Mr. Scott, although he denies that he said he would decertify the union, and he hung up the phone.

30. Later telephone conversations between Mr. Boyd and Mr. Scott took much the same form. Mr. Boyd sought sympathy and understanding for the company's plight and recognition of its honest effort to pay the arrears and, in Mr. Boyd's view, all he got from Mr. Scott was cold indifference and a request that the company make payment of the arrears and the penalties. Mr. Boyd would lose his temper, swear at Mr. Scott and slam down the phone. Mr. Scott claims that Mr. Boyd repeatedly said he would decertify the union, or he would get rid of the union, but Mr. Boyd denies ever having said that, even in the heat of the moment.

31. In about mid-December 1994 Mr. Boyd changed his tactic with Mr. Scott. Instead of asking to be excused payment of the penalties due to the benefit funds, he asked for a grace period to make payment. He found Mr. Scott to be accommodating. Mr. Scott suggested a meeting between them to discuss a method for making the payments which the benefit plans administrators had demanded. They agreed to meet.

32. A meeting took place between Mr. Scott and Mr. Boyd in Mr. Scott's office to discuss the company's tardiness in making its remittance payments and to consider how the outstanding penalties could be paid. Mr. Boyd explained that he did not have an administrative assistant and that he was not himself adept at paperwork and that he needed some indulgence from the union. Mr. Scott explained that he could not recommend any indulgence from the trustees as regards the assessed penalties to be paid by Bytown in respect of the remittance arrears. He reiterated that Mr. Boyd should not have ignored the letters of demand because that made it difficult to persuade the trustees to show some leniency as regards the penalty assessment. Mr. Scott recalls that Mr. Boyd repeated a comment he had made earlier that he filed the letters demanding Bytown's remittances in the garbage. Although Mr. Boyd denies having said that, we accept Mr. Scott's evidence as the more probable.

33. At the meeting Mr. Boyd suggested that the role of the union should be to try to assist businesses, like Bytown, to stay in business and to keep the union's members in employment, rather than to impose such heavy penalties on defaulting employers that they are obliged to close down, with everyone losing their jobs. Mr. Boyd said that the company could not pay the colossal penalty that the union had imposed, and he asked Mr. Scott if he could find a job for him when the company had shut down after paying the penalty claimed by the union. Mr. Scott explained that the claimant was not the union, but the Board of Trustees of the benefit plans of the Electrical Industry of Ottawa. He clarified that the trustees were made up of representatives of the union and of the contractors in Ottawa. Mr. Boyd had not been aware of that until then. He had assumed that the trustees were wholly appointed by the union.

34. Mr. Scott advised Mr. Boyd that he could not keep granting indulgences to the company and that Mr. Boyd had to get the company's paperwork in order so that the monthly remittance sheets were completed and sent each month to the benefit plans administrators before there was any talk of reducing the arrear penalties. Mr. Boyd then grew extremely angry and hostile. He said he would sooner close his business than pay the $29,000 plus figure in penalties. He said he would close the business and start a new one non-union. Mr. Scott told him that that was not possible and that the union would pursue the new company and make it a union shop. Mr. Boyd then shouted and he threatened Mr. Scott that if the company was not given a break and if the union did not get off his back, he would decertify the union and go non-union. Mr. Scott responded by advising Mr. Boyd that he could not simply do that. He said that it was easier to get a divorce than to get away from the union. Mr. Boyd admits to losing his temper at that meeting, although he denies threatening to decertify the union. He says that he was thinking of the company's possible bankruptcy and the consequences that would flow from that, and not about decertifying the union. He claims to have said that he would close his company and work for a non-union company. He adds that he said that, if the company was bankrupted by the union, he would go and work non-union and he would make it his life-long work and his mission to build up the non-union company to the detriment of the union. The meeting ended with Mr. Boyd, in a high state of irritation and annoyance, abruptly getting up and walking out.

35. We find, for reasons which follow in our assessment of the evidence, that Mr. Scott's version of their meeting is the more probable. We conclude that Mr. Boyd threatened to decertify the union.

36. There was evidence of a telephone conversation between Mr. Boyd and Mr. Scott in about February or March 1995, some weeks prior to Mr. Bradley being laid off. Mr. Boyd was on a job site where Mr. Bradley and Mr. Arsenault were working together. Mr. Boyd was using his cell phone. Mr. Scott was in the union's office in Ottawa. Mr. Arsenault and Mr. Bradley overheard Mr. Boyd's side of the conversation. There was not much surrounding noise to obscure their hearing. Mr. Bradley claims that Mr. Boyd was angry that penalties had been imposed by the union on the arrear contributions due by the company to the union's benefit funds. When it became clear that Mr. Scott was not willing simply to waive the penalties, Mr. Boyd grew extremely angry and threatened to decertify the union and to ensure that his company would go "non-union". Mr. Scott confirms Mr. Bradley's version. Mr. Boyd admits to being extremely angry, but he denies making any threat to de-certify the union. Mr. Arsenault admits that he heard Mr. Boyd's conversation sufficiently to determine that he was displeased with the amount of the fine against the company, but he denies hearing anything more, particularly not any threat by Mr. Boyd. Mr. Arsenault heard the fine mentioned and he gathered that the union was not relenting on its demand for payment. He surmised that the amount was large. He says that he did not know then that the amount was about $30,000. He determined that later, after he had brought the termination application and his counsel showed him a document reflecting the amount.

37. As above, we prefer Mr. Scott's version of what was said between him and Mr. Boyd. We find that Mr. Boyd repeated his threat to decertify the union.

38. After the telephone conversation Bytown was put onto the Electrical Industry's collections list and the benefit plan's claims against Bytown were referred to a collection agency. A letter of demand was sent to the company on April 3, 1995 advising it thereof.

39. The Board of Trustees of the benefit plans of the Electrical Industry of Ottawa consists of 8 persons, 4 elected by the union and 4 by contractors. Mr. Scott is one of the 4 union appointed trustees. Although Mr. Scott has some influence over the other trustees, he cannot act in their stead and hence he cannot compromise claims they have without their prior approval. That is why the compromise of the trustees' claim against Bytown could be made only at a meeting of the trustees.

40. On April 5, 1995 Mr. Boyd was invited to attend a meeting with the Board of Trustees for the Electrical Industry of Ottawa at the offices of the administrators of the benefit funds, Coughlin & Associates. The company was seriously in arrears in respect of the penalties due by that stage and the trustees decided to hold a meeting to see if some arrangement could be made to overcome the problem. At that stage the company owed $29,829.93 in late penalty charges.

41. The meeting occurred on April 24, 1995 at 5:00 p.m. That was the day on which Mr. Arsenault first consulted his lawyers to bring the termination application. Mr. Boyd attended the meeting with his counsel. He agreed that he owed the penalties and some negotiation ensued as to what amount the company could afford and what the trustees would accept in respect of the accumulated penalties. The result was a considerable reduction in the assessed penalty. The parties signed a written agreement of settlement in which Bytown undertook to pay the agreed amount forthwith. Mr. Boyd paid the agreed amount of about $4,000 by cheque that evening.

42. Mr. Arsenault worked on various jobs with Mr. Bradley over a period of about 2 years before Mr. Bradley was laid off on March 31, 1995.

43. Mr. Arsenault is, by all accounts and from our impression of him, a mild-mannered, subdued and reticent man. He lives in Perth, although he works for the company in Ottawa. He has been a member of the union since 1980. He has been employed by Bytown since 1992. He is the only non-owner now working for the company.

44. Bytown did not employ many electricians. For most of the period relevant to this case it employed 4 employees. They were in the company's employment throughout its most difficult financial circumstances, until the early part of 1995, when three of them were laid off, the last being Mr. Bradley who was laid off at the end of March 1995, shortly before Mr. Arsenault made his termination application. By then he was the only employee of the company.

45. Mr. Bradley claims that shortly prior to his being laid-off, when he was asked to decertify the union by Mr. Boyd, he was given the assurance that he would have employment with Bytown and that, other than the loss of union benefits which he would have to arrange himself, his terms and conditions of employment would remain substantially similar. According to Mr. Bradley, Mr. Boyd was confident that he could guarantee him employment in Bytown because he felt that the contracts he was bidding unsuccessfully on could be secured if he were not obliged to bid at union rates. However, according to Mr. Bradley, if the company did not go non-union then he and Mr. Arsenault would have to be laid off like the other employees who had been laid off previously. Mr. Boyd and Mr. Arsenault deny the allegation. However, for reasons which follow in our assessment of the evidence, we accept that Mr. Boyd expressly requested Mr. Bradley and Mr. Arsenault to bring an application to decertify the union.

46. Mr. Bradley was laid off on March 31, 1995. Mr. Bradley claims that he was laid off earlier and that he sat at home for the month of March 1995, but that is unlikely. We think he is mistaken as to the date of his lay-off. He was away for one week during March, but he was laid off only on March 31, 1995, as attested to by Mr. Boyd. Mr. Bradley claims that Mr. Boyd undertook to recall him once the union had been decertified. He claims that once laid off he spoke to Mr. Boyd on a few occasions and he was told to "sit tight" until the decertification application was through, after which he would be recalled to work. Mr. Bradley claims that Mr. Boyd promised him renovation work on a high rise parking garage in Ottawa, the Britannia project, once the decertification application was successful. Having regard to the evidence referred to below, we conclude that some assurance of re-employment was given to Mr. Bradley by Mr. Boyd. In all likelihood the promise of re-employment was linked to the success of the decertification application of Mr. Arsenault.

47. Upon his lay-off, Mr. Bradley had to pay a reinstatement fee to the union to re-affirm his union membership and his entitlement to be on the out-of-work lists. The fee was due because the company was in arrears with the payment of his union dues. It is payable if remittances are 3 months or more in arrears. Mr. Nugent, formerly an employee of the company laid off prior to Mr. Bradley, also had to pay a reinstatement fee.

48. Mr. Arsenault says that he began to think of terminating the union's bargaining rights about 8 or 9 months before he actually contacted a lawyer to assist him. He reasoned that he did not see a future for himself and his family remaining in the union because the economy was such that he thought his work would be more secure if he worked non-union. With the downturn in the economy, Bytown was getting less work and Mr. Arsenault says that he attributed that deterioration in the company's circumstances to the fact that it had to comply with the union's rates of pay when bidding on contracts. He claims never to have discussed these thoughts with any other person, nor to have heard them even suggested by any other person. They were conclusions which he had arrived at from his own indepen­dent observation and analysis of the situation. At one point he suggested that, had Mr. Boyd been opposed to the decertification application, he would still have proceeded with it. When the question was put to him a second time, he conceded that he probably would not have.

49. Mr. Arsenault claims that at no stage did he discuss his decertification intentions with his fellow employees. He was aware, though, that he needed a majority of employees to sign a petition applying for decertification of the union. Nonetheless he did not discuss his plan with anyone, he merely left his plan in abeyance until he was the only employee left. His explanation for not discussing the decertification application with his fellow employees before they were laid off is that he did not want to get them involved. He adds that had the lay-offs not occurred he would not have gone ahead with the termination application. He can give no explanation as to why he felt willing to bring the decertification application when he was the only employee, and not otherwise.

50. Mr. Arsenault claims that the lay-offs which occurred shortly before he made the decertifica­tion application had no influence whatsoever upon his decision to bring the application. Similarly he claims that no-one threatened him, nor was he induced in any manner to bring the application. He was given no assurance, nor any promise as regards his terms or conditions of employment in the event of his termination application being successful. He says that he had no idea as to whether the company would maintain his wage rate, or any of his other terms or conditions of employment when he brought the application. He had discussed nothing of that with Mr. Boyd, or with anyone else. He trusted that he would be better off working at Bytown than not working at all, which he saw to be the alternative to decertification of the union, even if his wage rate were to be reduced. He mentioned that he was not concerned by the prospect of the loss of his union benefits because his wife worked and her benefits were generally superior to those that he obtained through the union.

51. Having made the decision to apply to terminate the union's bargaining rights in Bytown, in April 1995, Mr. Arsenault contacted his own lawyer in Perth. He was referred to a law firm specializing in labour relations matters and he consulted them in respect of this application. He had two meetings with his lawyer, the first on April 24, 1995, and the second on April 26, 1995, when he signed the termination petition. The termination application was launched on Mr. Arsenault's behalf by his lawyers on April 29, 1995.

52. We do not accept Mr. Arsenault's account of his thought process leading to his deciding to apply for the union's decertification. For reasons which follow, we conclude that his explanation of his determination to wait until he was the only employee before making the application is not credible. We further conclude that the probabilities favour the finding that Mr. Arsenault's decision to apply for the termination of the union's bargaining rights was founded in the request made of him and Mr. Bradley by Mr. Boyd.

53. After Mr. Bradley was laid off, he believed that he would be recalled to work relatively quickly. He expected to be recalled to work on the parking garage renovation which Mr. Boyd had promised him. That work was anticipated in the summer. Mr. Bradley would phone Mr. Boyd periodi­cally to check if the company was yet in a position to recall him. Mr. Bradley says that each time Mr. Boyd told him to sit tight and to wait for the outcome of the decertification application. Mr. Boyd said that he would not be taking on any employees while the decertification application was pending before the Board, and that Mr. Bradley should await its outcome.

54. Mr. Bradley and Mr. Boyd spoke on the telephone on July 21, 1995. Mr. Bradley asked Mr. Boyd whether the company had secured the contract for the Britannia job, which Mr. Boyd confirmed. Mr. Bradley then asked if he could come back to work, to which, according to Mr. Bradley, Mr. Boyd replied that he could not because the decertification application was still pending. Instead Mr. Boyd had taken on a new working shareholder, someone who had previously worked as an apprentice electrician for the company when Mr. Bradley was there, who would be doing the garage job. Mr. Boyd explained to Mr. Bradley that he could not lay-off a co-owner in order to recall him. Mr. Bradley says that Mr. Boyd then asked him if he were still interested in working for the company if it were non­union and Mr. Bradley replied affirmatively. Mr. Boyd then told him once again to sit tight (in expectation of recall) because it would not be long before the hearing was over.

55. Mr. Boyd's version of the conversation gives credence to Mr. Bradley's version. He admits to asking Mr. Bradley if he had heard that Mr. Arsenault had brought a decertification application before the Board. In his evidence in chief, he said that he told Mr. Bradley to sit tight depending upon the decertification application because, if it were successful, Mr. Bradley could get back working. That directly confirms Mr. Bradley's evidence. However, under cross-examination Mr. Boyd said exactly the opposite. He said that he told Mr. Bradley that if Bytown continued to be a 'union' company (i.e. subject to the collective agreement) then there would be a position for Mr. Bradley in the company. In other words, if Mr. Arsenault's decertification application were unsuccessful then there would be a position for Mr. Bradley. Mr. Boyd said under cross-examination that there would not have been a position for Mr. Bradley in the company if the decertification application were successful because he knew that Mr. Bradley would never work non-union. He can give no explanation as to how he would have known that. He contended throughout the hearing that he had never discussed with Mr. Bradley whether or not he would be willing to work non-union. He says that he never spoke to Mr. Bradley at any time as to whether he preferred to work union or non-union. Instead, says Mr. Boyd, he picked up by observing Mr. Bradley and knowing him for over a year that Mr. Bradley was not someone who would be willing to work non-union. Notwithstanding the obvious contradictions and anomalies in Mr. Boyd's evidence, his raising the issue of Mr. Arsenault's decertification application with Mr. Bradley and discussing whether or not a position would be available to Mr. Bradley depending upon the outcome of that application is consistent with Mr. Bradley's contention of prior discussions between them of a decertification application.

56. Mr. Boyd's informing Mr. Bradley that he was not to work on the Britannia parking garage project appears to have been a turning point for Mr. Bradley. He gave up hope of being recalled to work at Bytown and, from then on, he seems to have concluded that, if he were to get work, he would have to do so through the union hiring hall.

57. On July 26. 1995, the union's counsel made allegations against Mr. Boyd which plainly relied upon information obtained from Mr. Bradley, who was referred to by name in the amending pleadings. The union gave notice of its intention to amend its response to the decertification application by relying upon the allegations of Mr. Bradley which had newly come to hand.

58. That night, in response to the union's counsel's notice to amend pleadings, on the eve of the first hearing of these applications, Mr. Boyd telephoned Mr. Bradley to inquire if he had been speaking to the union and if he would be testifying on behalf of the union. Mr. Bradley says that he lied by saying that he would not be testifying for the union. Mr. Bradley claims that Mr. Boyd then said, "remember, I never said that you should decertify the union". Mr. Boyd claims that Mr. Bradley said that he was testifying because he had no choice, he needed work through the union and he had to testify. In his evidence in chief Mr. Boyd said that he never discussed the content of the union's counsel's notice to amend pleadings which contained Mr. Bradley's allegations against Mr. Boyd. Under cross ­examination, Mr. Boyd said that he told Mr. Bradley that he never said anything about decertifying the union to him or to Mr. Arsenault. This latter evidence corroborates Mr. Bradley's version of the telephone conversation. It is also extremely unlikely that Mr. Boyd would not have discussed the content of the union's counsel's notice to amend pleadings with Mr. Bradley because he called directly following his being informed thereof by his own counsel and he was, we conclude, shocked by what he saw to be Mr. Bradley's betrayal, particularly when, until then, Mr. Bradley had phoned him regularly to talk of the prospect of his being recalled to work for Bytown and they were on good terms.

59. The first day of hearing occurred on the next day. Both Mr. Bradley and Mr. Boyd were in attendance. During a break in the proceedings, when Mr. Boyd and Mr. Bradley were alone in the hearing room, a conversation occurred between them. Mr. Boyd claims that Mr. Bradley, apparently troubled by the silence between them, volunteered to him that he had no choice (but to testify for the union) because, in his words, he had only $2 in his pocket. Mr. Bradley entirely denies the incident. We have no reason to doubt Mr. Boyd's account. The company's counsel suggested that Mr. Bradley's unsolicited comments showed that, in testifying, he was acting under some economic duress from the union. We do not accept that explanation. His gratuitous comment appears to have been more a function of embarrassment at having turned on Mr. Boyd and a somewhat gauche attempt to justify his perceived disloyalty.

60. Mr. Bradley went onto the union's out of work list when he was laid off by Bytown. The union keeps one list, but there is a notation beside the names of those on the list who are willing to work out of town. The union has an arrangement with other locals that if they do not have anyone available to work they notify locals which can send electricians from their out of work lists to take the available work. Mr. Bradley put his name forward for both local and Ontario-wide work. The list is computerized in respect of in-town and out-of-town work. Everyone on the list is available for in-town work, only some are available for out-of-town work. When a job comes up the person at the top of the list gets the offer of work. If s/he declines it, it goes to the next person on the list, and so on. So, although there is only one list, the calculation of eligibility to receive work is separated as between those who have volunteered only for in-town work and those who have volunteered for out-of-town work.

61. Mr. Boyd took on a partner to perform the work he originally intended to give to Mr. Bradley on the Britannia parking lot job, with effect from July 31, 1995. No new employees were taken on and Mr. Arsenault remained the only employee from March 31, 1995, when Mr. Bradley was laid-off.

62. The principal attack upon the credibility of Mr. Bradley's evidence came from his estranged wife, Patricia Bradley. She testified for the company. Although married since 1986, they separated in January 1995. We restricted evidence of the causes of the marital break-up as much as possible and we will refer to that evidence only to the extent relevant to the evidentiary issues in this case.

63. Mrs. Bradley was reasonably well acquainted with Mr. Boyd prior to testifying on behalf of the company. He had been to the Bradley's home on more than one occasion and Mr. Bradley had introduced him to her.

64. Mr. Boyd and Mrs. Bradley claim that they met by pure chance on October 10, 1995 in a shopping centre. By that stage Mr. Boyd was well aware that Mr. Bradley had elected to testify against him. Mrs. Bradley was sitting having a snack. Mr. Boyd walked through the mall beside the seating area where Mrs. Bradley was sitting and Mrs. Bradley was content that he appeared not to have seen her. She says that she did not want to speak to him because she was worried that he might have heard nasty things about her from Mr. Bradley and she thought she might be embarrassed to speak to him. Mr. Boyd walked past where Mrs. Bradley was sitting. He says that he recognized her as being Mr. Bradley's wife, but he could not remember her name. He decided to speak to her and he returned to the coffee seating area and joined her. He apologized for having forgotten her name and they spoke and he drank coffee while they sat together. Mr. Boyd asked if she was still in touch with Mr. Bradley and she replied that she had spoken to him several times over the previous summer. Mr. Boyd asked her if Mr. Bradley had ever discussed him (Mr. Boyd) asking him (Mr. Bradley) to decertify the union. Mrs. Bradley says that she then told Mr. Boyd that Mr. Bradley had said that he had to testify for the union if he wanted to get work. The conversation between Mr. Boyd and Mrs. Bradley was limited because both were pressed for time. Mr. Boyd asked Mrs. Bradley if he could contact her again. She agreed and he noted her telephone number. Mr. Boyd then informed his counsel of what Mrs. Bradley had told him and Mr. Boyd then phoned Mrs. Bradley and asked her if she were willing to meet again to discuss the matter further. She agreed.

65. Mr. Boyd phoned Mrs. Bradley the next day and they met again at the same place. This time the meeting included the company's counsel. A fuller conversation occurred which led ultimately to Mrs. Bradley willingly testifying for the company. She says that she felt that Mr. Boyd had been good to her estranged husband and she did not like to see him give false testimony against Mr. Boyd. Her decision to testify (and to lose income for doing so) was undertaken entirely for altruistic reasons, in that she could not bear to have a falsehood raised against the company and Mr. Boyd by her recalcitrant husband. She claims that she did not intend to get back at her husband by testifying against him, she did so only because she did not like him to tell a lie.

66. Mr. and Mrs. Bradley had some conversations after he was laid off by Bytown. There is considerable conflict between their two versions of what was said. In general, Mrs. Bradley was more believable, although she tended to exaggerate and embellish her evidence in order to discredit her estranged husband. She was plainly angry with him (in his words, she has a "lot of vengeance" against him) and her evidence needs to be tempered by discounting her manifest sense of outrage at his conduct in relation to her. Mr. Bradley had a poorer recollection of their conversations and, besides falsely suggesting at times that he never discussed anything to do with Bytown and the union with Mrs. Bradley, he tended to suggest that he possessed a more coherent attitude at that time than was probably the case. In our assessment of the evidence, at that time there was considerable ambivalence in Mr. Bradley's thinking - his loyalty was divided between wanting to resume work at Bytown and wanting to get ajob though the union's intercession. At the hearing Mr. Bradley sought to appear less interested in the prospect of re-employment at Bytown than he no doubt was. In fact he went so far as to suggest that he had decided not to work non-union at the time of his lay-off, and he speculates that that is the reason he was not readily recalled by Mr. Boyd. Mr. Bradley wanted us to believe that, relatively soon after leaving Bytown, he had firmly rejected any thought of working again for Bytown because he did not want to work non-union. The evidence does not support that view. On the contrary, it seems quite clear that Mr. Bradley was eager and expectant to return to work at Bytown, at least until July 21, 1995. Mr. Bradley was probably not as opposed to Mr. Arsenault's decertification application as he sought to appear at the hearing. He was relying upon the assurances of recall given by Mr. Boyd. Had he been summoned back to work by Mr. Boyd, whether Bytown was union or non-union, from our impression of Mr. Bradley, he would not have hesitated to accept the recall. But, when he saw that that was not going to happen, his dependence upon, and hence his loyalty to, the union grew and he became more willing to disclose the detail of the conversations he had had, and the arrangements he had made, with Mr. Boyd. Like Mrs. Bradley's evidence, his evidence needs to be approached with care, so as to avoid its ex post facto self-justifications, fabrications and embellishments.

67. What seems clear is that at the time Mr. Bradley was laid off Mr. Boyd intended to recall him for the Britannia parking lot renovation anticipated to occur in the summer of 1995. We conclude that Mr. Boyd expected the decertification application to have been successful by then. When it became clear that the decertification application would not be granted quickly, and Mr. Boyd did not want to change the status quo within the company until the application was concluded, he did not recall Mr. Bradley, nor did he take on any additional employees. Instead he took on an additional working shareholder in the company. The size of the work force increased, but the bargaining unit continued to consist only of Mr. Arsenault. Once Mr. Bradley knew that Mr. Boyd had taken on a new working partner instead of recalling him to work on the parking lot job, he realized that he needed to rely only upon the union to find work for him. It was then that he became a willing participant on behalf of the union in these proceedings.

68. While on lay-off and on the union's out of work lists, Mr. Bradley inquired periodically of Mr. Scott whether there was any work for him. The union applied its out of work list in strict order of placement. There was little movement on the internal (Ottawa) list, but there was some greater movement on the shorter external, Ontario-wide list. Mr. Scott informed Mr. Bradley that there might be some work for him out of town. Mr. Scott had been told by the business manager of the local in Sault Ste. Marie of a big job there later in the summer of 1995. No promise of work was made to Mr. Bradley by Mr. Scott. He was merely told what work might come up. Mr. Scott says that he frequently knows up to 6 or 7 months before a job becomes available that it is likely to become available. He was aware that there would be jobs in Sudbury, Windsor and Thunder Bay in the summer '95 and he may well have mentioned that possibility to Mr. Bradley when he went onto the out-of-work list.

69. We now consider Mrs. Bradley's evidence. Mr. and Mrs. Bradley did spend quite a lot of time together during the summer of '95 discussing matters of concern to Mr. Bradley, and probably to Mrs. Bradley too. Mrs. Bradley claims that Mr. Bradley told her that Mr. Scott had promised work to him if he testified against Bytown. Mr. Bradley denies having said that. Mr. Scott denies that any such promise was made. Mrs. Bradley goes further and claims that Mr. Bradley told her that Mr. Scott had promised preference to Mr. Bradley in respect of work out of town if he testified for the union. Mr. Bradley denies having said that and we find that there is no truth in the allegation. As will be clear from Mr. Scott's evidence (described below), he never made that promise, nor was his comment to Mr. Bradley that he might get some work in Sault Ste. Marie in any manner related to Mr. Bradley giving testimony for the union. Mr. Bradley might well have said to Mrs. Bradley that he had to testify for the union if he was to get work out of town. That may have been his understanding of his predicament, or more likely it was his justification to Mrs. Bradley for turning against Mr. Boyd, but it was not based on anything said to him, or done, by Mr. Scott. It is most unlikely that Mr. Bradley would have said that Mr. Scott had promised him preference in selection for out-of-town work because there was no basis for him saying that. He was never given that promise, nor was he subsequently given preference when he obtained out-of-town work through the union. During Mr. Bradley's period of 9 months out of work during 1995, he obtained only 4 weeks work, and that in Sault Ste. Marie. He got the work when he reached the top of the out-of-work list. There was previously a large referral of electricians on the out-of-work list to a job in Windsor and there were other referrals by the union during the summer of 1995 to Thunder Bay, St. Catharines, Barrie and Sudbury, but Mr. Bradley did not benefit from those referrals because he was too low down on the list. He benefited only in the ordinary course when he moved to the top of the list. Seventy five men were dispatched to jobs through the union ahead of Mr. Bradley from the time he was laid off until he was assigned work in September 1995.

70. The above assignments of work to those on the out-of-work list occurred despite Mr. Scott's entitlement, as Business Manager, to exercise his discretion in the manner he considers most suitable in respect of the assignment of work to those on the out-of-work list. He could, he says, have put Mr. Bradley to the top of the list. That was within his authority. He did not. He says that occasionally he will make exceptions on humanitarian grounds to move a particular person up the list, but that was not done in Mr. Bradley's case. He got no preference whatsoever.

71. In one particular conversation Mr. Bradley said to Mrs. Bradley that he felt he was between "a rock and a hard place". He says that he meant by this comment that he could not decide whether to go non-union with Bytown, or to keep his association with the union and hence be available to obtain work from the union's hiring hall.

72. Mrs. Bradley claims that in one conversation Mr. Bradley told her that Mr. Scott had told him that if he did not testify in the union's favour in these proceedings he would never again get union work or that he would not get work for a very long time. Mr. Bradley denies having said that, and he denies that Mr. Scott ever said that to him. In respect of this allegation Mr. Scott says that when he became aware of the conversations between Mr. Bradley and Mr. Boyd he explained to Mr. Bradley that the union would expect him to give testimony of those conversations and that it would subpoena him to do so, but Mr. Bradley was not coerced or threatened to testify. Mr. Bradley agreed to give testimony, which he then did under subpoena.

73. We accept Mr. Scott's explanation. Mr. Bradley was no doubt ambivalent about coming out openly against Mr. Boyd. It was one thing to inform the union of what he had heard Mr. Boyd to say, it was another thing altogether to give testimony of it and, in all likelihood, destroy any prospect he might have had of working again at Bytown. His reticence to testify, communicated to Mrs. Bradley, may well have included justification for why he had chosen to do so. She was acquainted with Mr. Boyd and she believed he had been good to her husband. She plainly did not support Mr. Bradley's decision to side with the union against Mr. Boyd. No doubt she must have criticized the choice he had decided to make. He explained to her that, in his opinion, he had to testify otherwise he would never get union work again. That threat was never made to him; it appears to have been something he invented to justify to Mrs. Bradley his choosing to side with the union rather than with Mr. Boyd or something he feared, but not because of anything said or done by Mr. Scott or the union. Mr. Bradley had made that election because he saw the prospect of getting work to be better with the union than with Bytown. He was not promised any inducement, nor given any threat. He made the choice himself, difficult though it was for him to cut his ties with Bytown.

74. Mr. Bradley was given an opportunity by the union to work in Sault Ste. Marie. He was dispatched on September 25, 1995. Mr. Bradley told Mrs. Bradley that he had got a job through the union and that he would probably be working in Windsor and Thunder Bay. He made no mention of Sault Ste. Marie. The reason he gives for lying to her about the location of his work was that he did not want her to bother him while he was away in Sault Ste. Marie.

75. Mrs. Bradley makes a further allegation against Mr. Bradley. She claims that he said to her that he had to lie about his conversations with Mr. Boyd and say whatever Mr. Scott wanted him to say. Mr. Bradley denied that. We do not believe this part of Mrs. Bradley's testimony. It seems to have been her own interpolation, an addition she made to add support to Bytown's cause. Our conclusion is that Mr. Bradley may have exaggerated the frequency of Mr. Boyd's conversations with him concerning the union, and he may have embellished upon what was said here and there, but his evidence is broadly consistent with the circumstantial evidence in this case and Mr. Boyd's version of events.

76. Mrs. Bradley claims that Mr. Bradley told her that Mr. Scott did not like Mr. Boyd and that he had a personal vendetta against him. Mr. Bradley denies that. He says that he mentioned to her that Mr. Scott was always chasing Mr. Boyd for payment of the company's pension and other contributions because Mr. Boyd was usually late with his payments, but he never said that Mr. Scott did not like Mr. Boyd or that Mr. Scott had singled out Mr. Boyd for special harassment. Our impression of the evidence as a whole is that Mr. Scott adopted a thoroughly proper and professional attitude towards Bytown and in no manner did he single out Mr. Boyd. Whatever his feelings for Mr. Boyd, they did not influence the manner in which he dealt with the company. To the extent that there was any rudeness or discourtesy between them, in each instance the belligerence was from Mr. Boyd towards Mr. Scott and not the other way around.

77. Mrs. Bradley claims that during the period of her marriage to Mr. Bradley they would have a drink together each evening and Mr. Bradley would discuss what had happened to him at work that day. According to her, he had spoken of how much he enjoyed working for Mr. Boyd and, at no stage that she could recall, had he mentioned to her that Mr. Boyd had asked him to de-certify the union. Mr. Bradley says that he never discussed his work with Mrs. Bradley. It is difficult to know where the truth lies in this dispute. In all likelihood there was some discussion between Mr. and Mrs. Bradley when they lived together of what had happened to him at work, but there are problems in her testimony. Although Mr. Bradley says that Mr. Boyd was always talking to the employees of decertifying the union, and that is almost certainly an exaggeration, Mr. Bradley made specific mention of an approach to that effect by Mr. Boyd during about February 1995, after Mr. Bradley had ceased to live with Mrs. Bradley and relatively shortly before he was laid off.

78. Under cross-examination regarding her evidence of her chance encounter with Mr. Boyd at the shopping mall in October 1995, Mrs. Bradley said that she told Mr. Boyd that Mr. Bradley had agreed to testify for Mr. Scott in order to obtain employment. That evidence fits with the probabilities of this case. We are satisfied that Mr. Bradley thought that his work opportunities through the union hiring hall would be adversely affected if he did not testify for the union and that he told Mrs. Bradley that. We are also satisfied that in all likelihood he went no further than that. The probabilities do not support Mrs. Bradley's evidence that he said he would lie, nor that Mr. Scott threatened that he would never work again, nor that he would have great difficulty ever obtaining work again. Those amplifications were Mrs. Bradley's embellishments and fabrications. We have found that the union gave no cause to Mr. Bradley to believe that he would not get work if he did not testify for the union, but we are satisfied that he might well have viewed his own situation in that light and he told Mrs. Bradley thereof.

79. There were some contradictions in Mrs. Bradley's evidence. In the company's pleadings contained in a letter from its counsel to the Board dated October 27, 1995 setting out what Mrs. Bradley's evidence would be, the following is stated: "Mr. Bradley constantly told his wife that he was very happy working with Bytown Electric and that it was a good union shop and further that Bytown Electric was paying its contributions as required to the union." Initially in cross-examination Mrs. Bradley said that she had no recollection of Mr. Bradley having mentioned the payment of its contributions to the union. When the company's counsel's letter of October 27, 1995 was brought to her attention, she recalled that she and her husband had spoken of the company's contributions to the union. She sought to explain her 'error' on the basis that she did not initially understand what was meant by the word 'contribution'. No explanation of its meaning was given prior to her changing her version.

80. Mrs. Bradley was not an impartial, indifferent observer. She is bitterly angry with Mr. Bradley and she came across as extremely sympathetic to Mr. Boyd's situation. She testified without a subpoena. She lost pay from her employer by testifying and she took two days leave for the purpose of testifying. She had made no arrangements to be compensated for her time at the hearing. In our view, she was a biased witness. She could not make reasonable concessions when she was questioned and she stuck rigidly to positions which were highly improbable in her attack upon her estranged husband and her defence of Mr. Boyd. There was a grain of truth in much of what she said, but she tended to embellish and exaggerate what she says Mr. Bradley told her, with the result that her eventual testimony was not believable. It was from her that the company derived its theory of a conspiracy between Mr. Scott and Mr. Bradley, but that theory was not seriously advanced at the hearing. Bytown's counsel, quite reasonably, did not even put the notion to Mr. Scott as a possibility for him to respond to because, we suspect, it appeared so obviously improbable. At worst for the union's case, Mrs. Bradley can say that Mr. Bradley was reluctant to testify for the union and he felt obliged to do so if he was to get work through the hiring hall. Mr. Bradley was not in any manner preferred as a consequence of his testifying for the union, nor would he have been prejudiced in his work opportunities had he not testified for the union.

81. Mr. Boyd would be the first to admit that he speaks his mind, he does not mince his words and he expresses his likes and dislikes unashamedly. His counsel put that version of Mr. Boyd's personality to Mr. Bradley in cross-examination and Mr. Bradley readily admitted that Mr. Boyd was hot-headed, easily angered and outspoken. That view of Mr. Boyd is confirmed also in the company's statement of case and its written submissions prior to the hearing. However, notwithstanding what appeared to be common cause before the hearing, and notwithstanding the version put by Bytown's counsel to Mr. Bradley, and quite unconvincingly, Mr. Boyd and Mr. Arsenault together sought to suggest that Mr. Boyd had an entirely different set of personality traits - that he was quiet, restrained and phlegmatic. The circumstantial evidence also supports the opposite conclusion - that advanced by Mr. Bradley and Mr. Scott - that Mr. Boyd was robust, direct and relatively unrestrained in the expression of his views. His company was under enormous financial pressure. In general the company was subject to union rates and union terms and conditions of employment. It was finding that it could not compete effectively with the non-union firms when it tendered for work. It was being undercut in its bids. Non-union firms were securing contracts which the company could not compete for because of the union rates it was obliged to pay. Besides that general context, the company had a further difficulty. It had fallen into arrears in the payment of the remittances and contributions it owed to the union's benefit funds. It had failed to pay the amounts it owed and penalties and fines had been imposed by the union, adding to the company's liability. A high rate of interest was being charged on the arrear amounts. The debt owing by the company to the union was accumulating. Mr. Boyd was doing his best to get the company's finances in order. He needed some generosity from the union. He needed some understand­ing of the company's difficult trading circumstances. Whenever he spoke to Mr. Scott he felt that he was getting no sympathy at all, no appreciation for the efforts he was making to resume payment of the monthly dues to the union, and to pay the arrears. He felt, in those circumstances, the union was acting unfairly to add penalties and a high rate of interest onto the arrears. He felt the union was being grossly unreasonable. He was under great stress and he believed the union, personified by Mr. Scott, to be the principal cause of his, and the company's, difficulties. His understanding was that, just at the time that the company was beginning to recover from its worst period, the imposition of the penalties on the arrears due by Bytown to the benefit plans, entailed the bankruptcy of the company. Mr. Boyd saw the union's demands as being a direct threat to the future viability of the company.

82. Mr. Boyd admitted in evidence that he discussed a divorce with the union, when he met Mr. Scott in his office at the union's premises. He claims that Mr. Scott said to him it would be more difficult to get rid of the union than to get a divorce. The likely context in which that comment would have been made was the one of which Mr. Scott testified, viz, in response to Mr. Boyd's comment that he would get rid of the union in his company. Mr. Boyd's version is that he said he would go and work for a non-union company, to which Mr. Scott replied that the union would follow him there and that getting away from the union was more difficult than obtaining a divorce. That is not an improbable version of what was said, but it is seriously undermined by other evidence of Mr. Boyd. He testified that the thought of working in a non-union environment did not enter his head until after he received Mr. Arsenault's decertification application. That evidence is not consistent with his own version of his discussion with Mr. Scott. It is also not consistent with other evidence he gave. He said, when asked if he would prefer to work non-union, that he did not know a company today that would not prefer to work non-union. That reply flies in the face of his other evidence that he had not considered the possibility of the company working non-union prior to Mr. Arsenault serving a copy of his decertifica­tion application on the company at the end of May 1995.

83. There is much to suggest that Mr. Boyd had a close working relationship with his employees. He socialized with them and he invited them and their wives to a weekend barbecue and other events, which suggest a high level of comfort between them. Mr. Arsenault admits to being a good friend of Mr. Boyd, and to confiding personal information in him. Mr. Boyd admitted to having close relation­ships with his staff. He said it was not uncommon for members of staff to confide in him as regards personal problems they were having.

84. Mr. Boyd admits that he discussed Bytown's contract bids with his employees and he would, he says, if asked by an employee, inform him if a bid had been successful. In these circumstances, given the relatively easy and casual association between Mr. Boyd and his journeymen, given also his natural volubility, it is inconceivable that Mr. Boyd would not have discussed his belief that the union was the cause of Bytown losing contract bids. It is also inconceivable that he would not have revealed his antipathy towards the union and Mr. Scott to his employees. Mr. Bradley says he did so all the time. Despite our reservations regarding the veracity of some of Mr. Bradley's testimony, we are satisfied that in this respect he was telling the truth. Mr. Boyd was furious with the union and Mr. Scott, and he did not restrain himself from expressing his feelings. Mr. Boyd virtually admitted this in his evidence. Only Mr. Arsenault assiduously denied any expression of antipathy by Mr. Boyd about either the union or Mr. Scott. We find that evidence to be incredible. Mr. Arsenault was not being frank with us when he said that he had never heard Mr. Boyd speak in anger against the union. On the contrary, our conclusion is that the climate of antagonism towards the union generated by Mr. Boyd within the company was so extensive and so pervasive that Mr. Arsenault and Mr. Bradley were left in no doubt whatsoever that Mr. Boyd wanted the company to be rid of the union. Not only that, Mr. Boyd had made clear that the very survival of the company, and by implication the survival of Mr. Arsenault's job, depended upon the company being non-union. The call for decertification was patently expressed within the company.

Assessment of the Evidence

85. Mr. Bradley's version of discussions at work fits better with the facts that the company was close-knit with a high level of openness and ease as between the members of management and the electricians and that the company was under considerable financial pressure ostensibly at the instance of the union. (The pressure upon the company was in fact at the instance of the administrators of the electrical industry benefit plans, although Mr. Boyd correctly perceived Mr. Scott, the union's Business Manager, to be the person with influence over the enforcement or waiver of the penalties). Also, Mr. Bradley and Mr. Arsenault would have known that the company was not making the remittance payments it was obliged to make on their behalf because each month they receive a newsletter from the union with their dues receipt. If they receive the newsletter without their dues receipt they know that their employer has not made the remittance payments for them. Mr. Arsenault claims to have planned his decertification application, entirely of his own volition, because he thought that the company would have been more successful in its contract bids if it were non-union. Mr. Boyd admits to having shared the information of the company's bidding endeavours with Bytown's employees. Yet despite that admission, Mr. Arsenault's evidence was that no financial information was shared with him by Mr. Boyd and he decided to decertify the union without any discussion of the impact of decertification upon the company.

86. There are other aspects of Mr. Boyd's evidence which are not credible. He says that the first time the thought dawned on him that Bytown might be better off going non-union was after he received Mr. Arsenault's decertification application. Despite his acknowledgement that he was losing contracts during the company's difficult financial period because he had to bid at union rates, he suggests that the first time the thought of the possible advantages of going non-union entered his mind was when he received the decertification application. We do not believe that testimony. It does not fit with reasonable inferences that can be drawn from the evidence.

87. We do not have evidence that Mr. Boyd actually connived with Mr. Arsenault to initiate the decertification application. That is entirely possible, although that is not our finding. We do accept, though, that Mr. Boyd approached Mr. Bradley and Mr. Arsenault together to initiate a decertification application. Although this allegation was denied by Mr. Boyd and Mr. Arsenault, we accept Mr. Bradley's evidence that the unlawful request was made of him and Mr. Arsenault by Mr. Boyd shortly before Mr. Bradley was laid off. Mr. Bradley did not carry out the request. He did not apply for the union's decertification. We do not have evidence that Mr. Boyd laid off Mr. Bradley because of his failure to bring the decertification application, but not long after Mr. Bradley was laid off, the company engaged a new, working part-owner to perform an electrician's work. We do not find that Mr. Boyd laid off Mr. Bradley because he refused to petition the Board to de-certify the union. However, soon thereafter, when Mr. Arsenault was the only employee left, the application was brought. Mr. Boyd may well have spoken to Mr. Arsenault once Mr. Bradley had been laid off and he might have encouraged him to proceed with the termination application. We do not know that for sure, but the probabilities of him doing so overwhelm the opposite conclusion. Mr. Boyd is a strong and assertive character. Mr. Arsenault is not. He had come to believe that his livelihood, and that of his family, depended upon the goodwill of Mr. Boyd and the success of the company. Mr. Boyd requested Mr. Bradley and Mr. Arsenault to make a decertification application. Mr. Arsenault would have been in no doubt as to what the company expected of him. He must have realized that his contribution to the company's welfare was to de-certify the union as soon as he had the opportunity to do so alone.

88. The union's counsel argued that there is some significance in the date when Mr. Arsenault says he first began to think of decertifying the union. That was long before he took any action, but he says that in about September 1994 the idea began to germinate. The union's counsel draws attention to the fact that the pressure upon Bytown to pay the penalties on the outstanding arrears began in earnest at about the same time. There may be some significance in that coincidence, remote though it is.

89. We do not think that the coincidence of Mr. Arsenault consulting his lawyer on April 24, 1995, and Mr. Boyd meeting with the union's benefit fund trustees on the same day, is a matter of pure chance. The probabilities support the union's argument that Mr. Boyd's encouragement of Mr. Arsenault to bring the termination application coincided with his having to face a meeting at which he anticipating having to pay a substantial fine to the union. He had threatened that if he were obliged to pay the fines and the penalties which had been imposed upon the company by the union's benefit fund trustees, he would take steps to remove the union from the company. Mr. Arsenault's visit to his lawyer on April 24, 1995, followed closely upon that threat.

90. Assessing Mr. Arsenault's evidence as a whole, he made one glaring error concerning the dates of certain jobs. That in itself was not sufficient for us to disbelieve him. But there was much in his evidence which was troubling or unbelievable. We do not believe that he never discussed the union with Mr. Boyd. In the circumstances of what appears to have been a somewhat paternal relationship between Mr. Boyd and Mr. Arsenault, that is most unlikely. Mr. Arsenault admits to discussing family matters and domestic issues of concern to him with Mr. Boyd, yet he denies ever having discussed anything to do with the economic circumstances of Bytown. Mr. Arsenault's selective recollection of the telephone conversation between Mr. Boyd and Mr. Scott (he claims to have heard only part of what Mr. Boyd said) is unreliable. His evidence that he was aware of the need to ensure that a majority of employees signed the termination petition and yet that he never even spoke to any of his fellow employees to determine if they would join him in signing the petition, is improbable. The explanation he gives is that he did not want to get the other employees involved. That makes no sense had he really wanted to decertify the union. He claims to have wanted to decertify the union and to have known that a majority of employees must sign the termination petition, yet he took no action to inquire whether they would sign the petition. At the time he claims first to have thought about applying to decertify the union he had no inkling that his fellow employees would be laid off and that he alone would be left as an employee in the company. Yet he took no action until that eventuality had occurred. He went further and said that he would not have brought the termination application had the other electricians not been laid off. It was only because he was alone - the company's only employee - that he made the application. He can give no explanation for why that should make any difference. In our view, it should make no difference. We have come to the conclusion that the only reason it did make a difference was that Mr. Arsenault was then answerable wholly to Mr. Boyd, and he felt that he could no longer resist his exhortation to be rid of the union. Mr. Arsenault was then vulnerable to Mr. Boyd's prodding in a manner different from when there were other, somewhat more independently-minded, employees working with him.

91. Mr. Arsenault came across as a dutiful and obedient employee. His evidence that he did not discuss the implications of decertifying the union with Mr. Boyd is not convincing. When asked of this in cross-examination he somewhat contradicted himself. He was so eager to show that he had acted without prompting from Mr. Boyd, that at one point he suggested that, had Mr. Boyd been opposed to the decertification application, he would still have proceeded with it. When the question was put to him a second time, he conceded that he probably would not have. If he were to be believed, he did not discuss a matter which was absolutely central to the company's mode of business. It tenders as a union shop on all its bids; its business projection is currently calculated on the basis of the rates and terms prescribed in the provincial collective agreement for the electrical industry; it has functioned as a union shop for over 10 years. Mr. Arsenault wants us to believe that he would have taken a decision which so fundamentally affects the company's business without discussing it with the company's principal, Mr. Boyd. Given the relative conviviality and closeness of their working relationship, we do not accept that as being likely or probable.

92. We have the same skepticism in respect of Mr. Arsenault's evidence that he did not discuss the implications for his own terms and conditions of employment after decertification with Mr. Boyd before bringing the termination application. It is possible that his trust in, and reliance upon, Mr. Boyd is so complete that he did not discuss it at all. Mr. Bradley's evidence was to the effect that Mr. Boyd promised that, besides the loss of union benefits, the other terms of employment would remain secure. That, in our view, is the more probable version. In all likelihood Mr. Boyd assured Mr. Arsenault that his employment would be guaranteed and that, subject to the loss of his benefits, his other terms and conditions of employment would remain largely unchanged.

93. What was peculiar about Mr. Arsenault's demeanour when testifying was that although he said it would be better for his family and his job security if the company went non-union, he appeared to have no zeal or enthusiasm for the termination application he had brought. He claims to have paid no attention to the company's difficulties with the union, to have been largely unaware of what financial pressure the company was under as a result of the union's impositions and fines against it. Given how prominent was Mr. Boyd's vituperation against the union, that ignorance of what was going on around him is not believable. And yet, what gives Mr. Arsenault's testimony some credence is that he appears to be someone who would not pay any attention to matters like certification or decertification. On our understanding of his evidence and our assessment of his demeanour, he would never have done so without Mr. Boyd's sanction and prior approval. Assessing his evidence overall, we find him not to be a convincing or trustworthy witness. We find that he tailored his evidence to meet his strong sense of loyalty and obligation to Mr. Boyd, his employer.

94. Mr. Bradley was a somewhat incongruous and unreliable witness. Bytown's counsel sug­gested that his evidence be disregarded entirely because it was riddled by inconsistencies. We accept that he was not a good witness, but much of what he said fits with the agreed or proven facts. Some of what he said was plainly ex post facto justification for decisions he had taken. He is not a wholly believably witness and what he said must be taken with much skepticism. We have indicated above the extent to which we accept his evidence as being an accurate recollection of what occurred and the extent to which we find that he was inconsistent, unreliable or untrustworthy. Some of what he said was exaggerated or self-serving and some was plainly false, but much of his testimony appeared to have the ring of truth. He gave his evidence fluidly and without hesitation.

95. Mr. Scott gave consistent, careful evidence. His evidence was both internally consistent, and consistent with the agreed or proven facts and with the reasonable inferences to be drawn from those facts. To the extent that there is any contradiction between his evidence and that of Mr. Boyd, we prefer Mr. Scott's version.

96. Allegations were made in Bytown's documents before the Board that Mr. Scott was involved in a conspiracy to discredit Mr. Boyd by suggesting his involvement in Mr. Arsenault's decertification application. That version of events was not even put to Mr. Scott to respond to, and, other than some ambiguous hearsay evidence from Mrs. Bradley, there was no evidence to suggest it. Hence we find no truth in the allegations.

97. In contrast to Mr. Scott, Mr. Boyd was a nervous and reticent witness. Whenever he sensed difficulty, he needed the question repeated, which gave him time to reflect upon his answer and to prepare his position. He was sometimes evasive, at times deliberately not answering what was asked of him and instead replying with something he was not asked. On occasion, he contradicted earlier testimony he had given when it became obvious that he ought to make a reasonable concession. For example, at the start of his cross-examination he took the position that he did not realize that Bytown could incur penalties for ignoring its collective agreement obligation to make monthly remittances to the benefit plans. Later, after some further questioning, he suggested that he knew that penalties were possible, he just thought they would not be imposed on Bytown. Still later he admitted that he understood throughout that Bytown could incur penalties for defaulting on its monthly remittances. Finally he conceded that penalties had been imposed on the arrears and he was aware of the penalties because he was informed of them in the letters sent to Bytown by the benefit plan administrators. This example is one of other reluctant concessions which Mr. Boyd made after initial denials in his evidence.

98. Mr. Scott came across as having conducted himself professionally and properly in relation to Mr. Boyd and Bytown. He may have been somewhat unsympathetic to Bytown's financial predica­ment, but it was difficult for him to show much sympathy when Bytown was not complying with its most basic obligation to the benefit plan trustees, to file its remittance returns. Had Bytown done that, even if payment of the remittance amounts was not immediately forthcoming, and had Mr. Boyd responded to the letters of demand sent to him by the benefit fund trustees instead of ignoring them, he may well have received a more sympathetic ear than Mr. Scott gave him. Mr. Scott made clear that he had nothing personal against Mr. Boyd. We accept that evidence. When he acted he did so as trustee and custodian of the benefit plans and not out of any vendetta against Mr. Boyd.

Argument

99. Counsel for all the parties correctly argued that this case depended on credibility and upon the reasonable inferences to be drawn from the circumstantial evidence. Counsel for Mr. Arsenault argued that Mr. Arsenault had been a credible witness and that the voluntariness of his petition should be accepted. He argued in the alternative that, even if we were to accept that Mr. Boyd had threatened Mr. Scott that he would decertify the union, there was no evidence of any nexus between that threat and Mr. Arsenault's plainly voluntary and considered decision to bring the termination application.

100. Mr. Arsenault's counsel made reference to Mr. Bradley's evidence in which he said that he was not intimidated by Mr. Boyd's very frequent complaints against the union and that Mr. Boyd left the decertification up to him and Mr. Arsenault. Counsel argued that this evidence corroborated Mr. Arsenault's evidence that he brought the termination application voluntarily.

101. Bytown's counsel focused in argument upon the efforts which Mr. Boyd had made to restore the company's finances. After an extremely difficult period he had resurrected the company by prudent management, fully restoring its solvency. The company met the payment of all of its arrears in the period from November 1993 until April 1995. The only outstanding amount was the disputed penalty which had been imposed on account of the dues being in arrears. That too was resolved and much in Bytown's favour. Hence by the end of April 1995 any problems that existed between Bytown and the union were over. According to the company's counsel, there was accordingly no motivation on Mr. Boyd's part to launch a decertification application. His mood following the meeting with the benefit plan trustees in April 1995 was one of relief to be rid of what had been a long period of difficulty with the union.

102. Bytown's counsel suggested that it would have been absurd or stupid for Mr. Boyd to have threatened to decertify the union in Mr. Scott's office and then to go ahead and do precisely what he had threatened. He suggested that had Mr. Boyd actually intended to decertify the union, he would not flagrantly have informed Mr. Scott thereof.

103. The conversation between Mr. Scott and Mr. Boyd in Mr. Scott's office contained two conflicting versions of the context in which Mr. Scott had said, "it is easier to get a divorce than to get away from me". Mr. Scott claims he said that in response to Mr. Boyd's challenge that he would decertify the union. Mr. Boyd says that Mr. Scott said that after he said that if the union drove Bytown into bankruptcy he would go and work for a non-union shop and make it his lifelong vengeance to get as much work as possible for the non-union company. Counsel for Bytown argued that Mr. Boyd's version was perfectly possible and that we should find that no threat of decertification was made by Mr. Boyd. Counsel went further and suggested that Mr. Scott's response was not consistent with his version of what Mr. Boyd had said. We do not agree. As we explained earlier, we prefer Mr. Scott's version.

104. Bytown's counsel says that the reason Mr. Boyd's version of what he said should be believed is that what was foremost in his mind at the time was the possible bankruptcy of the company, not the decertification of the union. That is almost certainly so during the early, polite phase of the conversation, when Mr. Boyd was seeking some concession from Mr. Scott. But the comment was not made during the pleading phase of the conversation, when Mr. Boyd was seeking an indulgence from Mr. Scott. It occurred when it was obvious to Mr. Boyd that Mr. Scott appeared to be unbending, unsympathetic and, in Mr. Boyd's view, unreasonably harsh. His angry comments to Mr. Scott were made in retaliation for having his careful appeal for some concession apparently carelessly dismissed by Mr. Scott. He was furious and he made his feelings quite apparent. At that stage of the conversation, Mr. Boyd was no longer the plaintive favour-seeker concerned about Bytown's impending bankruptcy. He was fighting back, telling Mr. Scott he could match his perceived nastiness with some of his own.

105. Bytown's counsel argued that we should draw an adverse inference from the fact that the union had not called as witnesses the former employees of Bytown whom Mr. Bradley said had overheard Mr. Boyd speaking against the union, and whom Mr. Scott said had told him of Mr. Boyd's frequent outbursts against the union. We are not willing to draw that inference because only Mr. Bradley, Mr. Arsenault and Mr. Boyd could testify concerning the request we have found to have been made by Mr. Boyd of Mr. Bradley and Mr. Arsenault to make an application to terminate the union's bargaining rights. The former Bytown employees besides Mr. Bradley were not present when that request was made and their evidence would have been limited to background or peripheral matters.

106. Bytown's counsel urged us, if we find any part of Mr. Bradley's testimony to be believable, as we have, not to allow our suspicions of Mr. Boyd's conduct to cloud our judgement. Our assessment of the issues in this case must be founded upon the evidence proved and not upon what our suspicions may appear to establish. In counsel's words, referring to Irwin Toy Limited, [1983] OLRB Rep. April 536, at 543 paragraph 23, we cannot allow our suspicions to be converted into legal conclusions. We appreciate counsel's caution and we have reflected upon the evidence in that light. We are nonetheless satisfied that the conclusions we have reached are not merely the articulation of our suspicions. Rather they are deductions we have reached from an overall assessment of the testimony and of the only reasonable inferences to be drawn from the evidence. This matter is decided not upon the criminal law test of our being satisfied of the conclusions we have reached beyond any reasonable doubt, but upon the civil test of a preponderance of probabilities.

Decision

107. There is a difference between the notion of "voluntariness" which was relevant to petitions signed before the passing of Bill 7, under previous versions of the Labour Relations Act, and the provisions of section 63(16) of the Act. The provisions under the repealed Bill 40, read as follows, at section 58(3):

58.-(3) Upon an application under subsection (I) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at the time that is determined under clause 105(2)(j.t) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.

(emphasis added)

The current provision is contained in subsection 63(16) of the Act:

63. (16) Despite subsections (5) and (14), the Board may dismiss the application if the Board is satisfied that the employer or a person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application.

The voluntariness of the petition is no longer the crucial consideration for determining the validity of a petition. Bearing in mind that the union only weakly advanced the contention that Bytown or Mr. Boyd "engaged in threats, coercion or intimidation in connection with the application", the issue to determine whether the decertification application was in fact initiated by the employer or a person acting on behalf of the employer. That is not the same determination as had to be made previously. There has been a shift of onus. The union must now establish that the application has been initiated by the employer, rather than the petitioners having the overall burden of proving the voluntariness of their petition. That is not the only difference. The notions of 'voluntariness' and the absence of 'employer initiation' are not necessarily coterminous or coincidental. Furthermore, the point of consideration by the Board is dilferent as between its former determination of 'voluntariness' and its current consideration of the application of section 63(16) of the Act. The inquiry into voluntariness focused upon the circumstances of the signing of a petition, the current inquiry focuses upon the launching of the application. The focus is not restricted to the signing of the petition and includes the bringing of the application. In most cases this will be a distinction without a difference, but in some it may be. significant.

108. Under subsection 63(16) of the Act, if a termination application is initiated by the employer, the Board has a discretion to dismiss it. The reason for this provision is that if a decertification application is really caused by or originated by the employer, and it is not primarily the conception of the employees who make the application, then it represents an improper interference by the employer in an area which should properly be within the exclusive terrain of the employees. Initiation involves causing, originating or facilitating, the beginning of a process or event. What meaning should the concept, 'initiation', be given in the context of section 63 of the Act? Plainly if an employer prepares a petition to terminate a union's bargaining rights, summons his/her employees and requires then to sign the petition and then requires an employee to initiate a termination application, the employer initiates the decertification application. But that is an extreme and, hopefully, rare manifestation of improper employer interference in the contemplated process of employees freely deciding of their own initiative that they no longer wish to be represented by a particular, or perhaps any, trade union. Such direct, palpable initiation will in all likelihood be an unusual occurrence. But initiation can also occur indirectly, less palpably than in the example suggested, though no less effectively. There are gradations of employer conduct in relation to a termination application, along a spectrum, part of which will be improper and part of which will be acceptable behaviour. The Act determines that when an employer "initiates" a termination application, the Board has a discretion to dismiss the application. There is a continuum of employer conduct, some of which will amount to 'initiation' some of which will not. How then is the distinction to be drawn?

109. We consider that the proper interpretation of the notion of "initiation" is to determine whether the employer's conduct amounted to significant or influential employer involvement giving rise to the termination application. In other words, if the application is founded in the conduct of the employer, then it can reasonably be concluded that the employer has initiated that application.

110. Applying the above test to the facts of this case, we are satisfied that because of significant involvement by Mr. Boyd at an early stage in the process, Mr. Arsenault brought the decertification application. We reach our conclusion on the basis of our assessment of the credibility of the witnesses and upon our evaluation of all of the circumstantial evidence. Our overall analysis and consideration of the facts and issues in this case must include due regard for all of the surrounding circumstances. When considering the circumstantial evidence we ask ourselves what are the reasonable inferences to be drawn from that evidence, and then we ask, are those the more reasonable inferences to be drawn. Applying that test and our assessment of the witnesses' credibility, we have arrived at the following synopsis. By his conduct, advertently or inadvertently, Mr. Boyd created a climate of antagonism against the union among his employees. That was in part subtle, in part palpable. His more insidious inducement took the form of undermining the presence of the union in his company. He continued to pay vacation pay to the employees, though directly from himself and directly to them, and not through the lawful agency he was obliged to use, the electrical industry benefit plans. He established an environment in which no credit for benefits could be given to the union or to the institutions, like the benefit plans, which are created through the negotiation of a province-wide collective agreement by the union. Mr. Boyd's failure to remit the contributions to the benefit plans showed his employees what life could be like without the union. In short, he engaged in a process of anathematization against the union which created an environment among his employees which had the effect of undermining their association with the union.

111. Mr. Boyd's evidence is that he never ever spoke to his employees of the possibility of going non-union and of Bytown's difficulties operating under the union's collective agreement. Given the history of the company's difficulties which Mr. Boyd attributed to the obligation to tender for jobs on the basis of the rates prescribed in the collective agreement, given his general volubility and willingness to express his views easily and openly and to discuss the company's bidding on jobs, and his intimacy with his staff, that is not believable. Mr. Boyd had concluded, during the period during which he had his heart attack and his company very nearly went bankrupt, that Bytown would be much better off in a non-unionized environment. It is not credible that he would not ever have mentioned that conclusion to his employees, given the kinds of matters that he discussed with them and the nature of his relationship with them. We find that he made clear to his employees over a period of time before Mr. Arsenault's termination application was made that Bytown would be much better off if it were non­union.

112. Mr. Boyd's telephone call to Mr. Bradley on July 26, 1995, on the eve of the first day of hearing of the application, is disturbing. He says that he knew that Mr. Bradley would be testifying against him. That was obvious from the particulars that the union's counsel had faxed to Bytown's counsel earlier that day. But Mr. Boyd still chose to phone Mr. Bradley. He felt he had been betrayed by Mr. Bradley. The conversation strongly suggests prior discussion between them of a decertification application.

113. We have found that Mr. Boyd palpably initiated the decertification application when he requested Mr. Bradley and Mr. Arsenault to go ahead and proceed with it. Furthermore, Mr. Boyd repeatedly expressed the view that Bytown could not survive unless it were rid of the union and he had, on two occasions, threatened to Mr. Scott that he would decertify the union. One of these threats was overheard by Mr. Arsenault. Mr. Boyd's exhortations created a work environment in which Mr. Arsenault was left in no doubt that his ultimate job security with the company depended upon a decertification application. As the only person able to make that application - in a sense, from the perspective forcefully expressed by Mr. Boyd, as the only person who was in a position to save the company - Mr. Arsenault must have felt under extreme pressure to file the termination application. From an overall assessment of all of the relevant considerations, the reasonable inferences to be drawn from the evidence and from the inherent probabilities, we find that Mr. Arsenault would not have brought the termination application, but for the inducements, encouragement and exhortations of Mr. Boyd. Mr. Arsenault was the willing agent of Mr. Boyd, but there is in our view little doubt that the principal and the driving force of the application was Mr. Boyd. We find that he initiated the application and he did so acting on behalf of the company.

114. We have a discretion as to whether to dismiss Mr. Arsenault's termination application, having found that it was initiated by Mr. Boyd acting on behalf of Bytown, Mr. Arsenault's employer. When exercising that discretion the Board must consider whether or not, notwithstanding the employer's initiation of the termination application, the true wishes of the employees may yet be ascertained in a termination ballot.

115. The purpose of subsection 63(16) is to prevent the mischief described therein. A termination application founded in the employer's initiation should result in its dismissal unless there are compelling labour relations reasons why, notwithstanding the employer's initiation of the application, a Board-supervised secret ballot should still be held. No such reasons have been suggested here.

116. Accordingly, we have decided that the proper remedy is to dismiss the application and we make that order.

117. We have found that Mr. Boyd effectively initiated the decertification application and that Mr. Arsenault was his instrument for doing so. The possibility of disciplinary action being taken against Mr. Arsenault by the union was raised in argument at the hearing and the union's counsel gave an assurance that, in the event of the union substantially succeeding in this matter, the union would take no adverse action against Mr. Arsenault. We note and endorse that undertaking.

118. What remains is the union's counter application under section 96 of the Act claiming a violation of section 70 by the company. Section 70 reads:

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.

119. The evidence clearly established that the company interfered with the on-going representa­tion of a trade union by its employees. Mr. Boyd influenced Mr. Arsenault to make the termination application. His influence was "undue" or "improper" in that the Act intends that employees will freely decide whether or not they wish to be represented by a trade union, but his prodding and encouragement were excessive and interfering. We conclude that Mr. Arsenault was unduly influenced by Mr. Boyd who exceeded the reasonable limits to his and the company's rights to freely express their opinions.

120. In the circumstances, Bytown violated the provisions of section 70 of the Act. The company is ordered to desist from any further violation of that section of the Act.

DECISION OF BOARD MEMBER R. M. SLOAN; September 30, 1996

1. I dissent from the majority decision.

2. It is agreed by all members of the panel that much of the evidence is contradictory - most significantly - much of the cogent and relevant evidence from all three parties is contradictory.

3. It puzzles me therefore to read in the majority decision that virtually all of the pertinent testimony given by Messrs. Guy Boyd and Shawn Joseph Arsenault is found to be not credible while the testimony of Messrs. Steven Bradley and Ken Scott is eminently persuasive.

4. Even when Mr. Bradley's participation in events should prove troublesome to the union's submissions, the majority dismisses any adverse effect or impact that it might have in the final determination of this instant case, examples of this as can be found in the final sentence of paragraph 59 and again in paragraph 73 in the sentence that begins "that threat was never made to him; it appears to be something he invented ...". (emphasis added).

5. Why, if the evidence clearly points to direct employer involvement under section 63(16) of the Act does the majority include reference in paragraph 107 to the now repealed provisions of section 58(3) of what was known as Bill 40.

6. The raising of the issue of "voluntariness" even in such an oblique manner poses a question in my mind about the inability of the evidence to support the majority's findings relative to section 63(1) of the current Act.

7. In the third paragraph of paragraph 107, the majority states that "the voluntariness of the petition is no longer the crucial consideration ...". By legislative authority as embodied in the current Act, "voluntariness" is not a consideration at all. (emphasis added).

8. It is my contention that suspicion and mere inferences based on significantly contradictory testimony and evidence cannot possibly be the basis for finding a contravention of the Act.

9. In my view such a finding is a serious result, at least for Mr. Boyd, to find that he has violated the Act - a result which will undoubtedly cause him some personal concern -- when the facts and the evidence clearly, in my view, do not support such a finding.

10. With respect to the Board's rather novel and innovative interpretation of section 63(16) I am compelled to note that this section quoted by the majority very clearly employs the words "... that the employer or a person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation - in connection with the application", and, failing elaboration of those words elsewhere in the Act these words should be given their plain meaning.

11. In paragraph 108 we read "initiation involves the causing, originating or facilitating, the beginning of a process or event" and recites a most extraordinary example of an employer who "... initiates the decertification application". Then we come to the most disturbing element of the majority decision where the majority rather than interpret the legislation attempt to write it.

12. Nothing in the legislation says "that ... initiation can occur indirectly ..." and carried to the extreme -- as ts done in this case -- any and all conditions existing at an employers place of business can "indirectly" point to employer "initiation" -- which cannot be right, nor can it be the intent of the legislature.

13. Since there is no direct evidence whatsoever of the employer having initiated the application for termination, the rights of the applicant should be respected and a secret ballot representation vote should be ordered.