United Steelworkers of America v. ASM Dispensaries Limited, 1996 CanLII 11212

[1996] OLRB REP. MARCH/APRIL 303

2181-95-U; 2182-95-R; United Steelworkers of America, Applicant v. ASM Dis­pensaries Limited c.o.b. as Shoppers Drug Mart, Responding Party v. Group of Employees, Objectors

BEFORE: Jerry Kovacs, Vice-Chair.

APPEARANCES: Mark Rowlinson, Allison Collier and Rhonda McKellar for the applicant; A. D. G. Purdy and A. Mandel for the responding party; Gilda Lazaroff and Susan Godell for the Group of Employees.

DECISION OF THE BOARD; April 22, 1996

1. This is an application for certification together with a complaint of contravention of the Labour Relations Act. The applicant contends that this is an appropriate case for unfair labour practice certification'.

2. Both matters were filed on September 6, 1995 and were heard by the Board in October of 1995. The governing statute at those dates was the Labour Relations Act, R.S.O. 1990, c. L.2, as amended by certain Acts between 1991 and 1994.

3. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Act.

4. The applicant complained under section 91 that the responding party committed a num­ber of unfair labour practices during the union's organizing campaign, and asked the Board to issue a certificate pursuant to section 9.2 of the Act. In the applicant's submission, the true wishes of employees with respect to representation by the trade union were not likely to be ascertained because ASM Dispensaries Limited c.o.b. as Shoppers Drug Mart contravened sections 65, 67 and 71 of the Act.

5. On November 10, 1995, the Board issued a "bottom-line" decision, indicating that rea­sons would follow. The decision disposed of the matters as follows:

6. The Board declares that the responding party has contravened sections 65, 67 and 71 of the Labour Relations Act, and orders the responding party to reassign Rhonda MeKellar to the shift to which she was assigned prior to July 26, 1995. Further, the Board finds that as a consequence of the employer's unlawful conduct, the true wishes of employees respecting representation by the trade union are unlikely to be ascertained.

7. At the hearing the parties indicated that they had agreed upon the following bargaining unit description:

All employees of ASM Dispensaries Limited c.o.b. as Shoppers Drug Mart at 3003 Danforth Ave. in the Municipality of Metropolitan Toronto save and except Assistant Merchandise Manager, Pricing Systems Manager, Head Cashier, Head Beauty Advi­sor, persons above the rank of Assistant Merchandise Manager, Pricing Systems Man­ager, Head Cashier and Head Beauty Advisor, Pharmacists, office and clerical staff.

A certificate will issue to the applicant in respect of that bargaining unit.

6. On December 13, 1995, the employer requested that the Board reconsider its decision dated November 10, 1995. In essence, the employer asserts that the Board ought to have applied the provisions of the Labour Relations Act, 1995, which came into force on November 10, 1995. The trade union responded to the employer request and the Board has considered the parties' submissions.

7. This decision contains both reasons for the decision dated November 10, 1995 and a ruling disposing of the request for reconsideration.

Reasons for November 10, 1995 Decision

I. The Facts

8. The responding party ASM Dispensaries Limited (hereinafter referred to as "ASM" or "the employer") carries on business as Shoppers Drug Mart at a store on Danforth Avenue in Toronto. Its owner, Arthur Mandel, has operated the business since April of 1994 pursuant to a franchise agreement with Shoppers Drug Mart.

9. Following the general pattern of in-store management at Shoppers Drug Mart stores, the management team at ASM consists of a Merchandise Manager, an Assistant Merchandise Manager, a Head Beauty Adviser, a Head Cashier, and a Store Accountant, and Mandel. In addi­tion to pharmacists, the store is staffed by pharmacist assistants, cashiers, merchandisers, beauty advisers, receivers, stock boys, and Post Office clerks. There are 43 employees in the bargaining unit which the parties have agreed is appropriate for the purposes of the union's certification appli­cation, including both part-time and full-time employees.

10. The assignment of full-time employees is generally split between a 9:00 a.m. to 5:00 p.m. day shift and a 4:30 p.m. to 12:00 a.m. night shift. Some day shift cashiers work from 10:00 a.m. to 5:00/6:00 p.m. Part-time workers generally work a shift that runs from 4:45 p.m. to 10:00 p.m.

11. The franchise arrangement requires ASM to remit fees to Shoppers Drug Mart head office, in return for which it receives, among other things, the services of head office personnel. This head office group includes persons who specialize in various areas of store management and who provide their services to the numerous franchisees or "associates" of the Shoppers Drug Mart chain of stores. At least 6 persons from head office were involved in the events related to the case before the Board: Cohn Campbell (Director of Employee Relations), Mitch Danker (of the Human Resources Department), John Nielsen (Personnel Co-ordinator, Ontario Region), Larry Thorne (of the Operations Department), John Taylor (Director of Operations, Central Region) and Stacey Markle (Loss Prevention Co-ordinator, Central Ontario).

12. Of the head office group that was involved in the actions and decisions taken by the responding party, only Nielsen and Markle testified in the hearing of these matters.

13. In addition to Nielsen and Markle, the Board also heard the testimony of Arthur Man-del, the store owner, and of Rhonda McKellar, an employee who was the sole organizer in the union organizing campaign. In reaching my findings of fact, I have carefully considered factors such as the demeanour of the witnesses during testimony, the clarity and consistency of that evi­dence when tested in cross-examination, the witnesses' ability to recall events and conversations, the witnesses' ability to resist the tug of self-interest in providing their answers, and what seems most probable in all the circumstances.

14. McKellar has worked at the store operated by ASM since September of 1992. For some 14 years prior to her current placement, she worked at other Shoppers Drug Mart stores. Her mother (Jackie Glover, who as Head Cashier, is a manager) and two of her sisters (Brenda Glover and Lori Glover) also work at the ASM store. At the time that she commenced the organizing drive, McKellar was classified as the night cashier supervisor, a position with minor supervisory duties that nonetheless falls within the proposed bargaining unit. She worked four days per week, Sunday through Wednesday. She worked the night shift that commenced at 4:30 p.m. and ended at t2:00 a.m., the store's closing time.

15. Prior to May of 1995, the employer's practice was to assign one of its managers to work until 9:00 p.m. each evening. No manager would be on duty from 9:00 p.m. until the store closing at midnight. That changed slightly in late May such that the assigned manager stayed until 10:00 p.m. each evening; however, it remained the employer's practice to have no manager on duty after 10:00 p.m. until the store closed at midnight. On the four days per week that she worked, McKel­lar was entrusted with a key used to lock the store upon closing.

16. McKellar first contacted the Steelworkers' union on May 4, 1995. She met with Allison Collier, a union staff representative, the next day. They reached the understanding that McKellar would be the sole organizer. Collier advised McKellar to conduct organizing efforts only before and after work shifts or during work breaks, and McKellar says that she did not approach employ­ees during working hours. In her view, the campaign began well, with between 12 and 15 employ­ees signing union cards in May. McKellar had a sense of who might support and who might oppose a union, and she directed these early efforts towards those whom she believed would support the union. All of those whom she first approached signed cards.

17. The existence of the organizing campaign came to the attention of Mandel and Shop­pers Drug Mart head office soon after McKellar began her organizing efforts in early May. Mandel was uncertain as to whether someone spoke to him directly about the campaign or whether he merely overheard employees' discussions of the matter. (In examination-in-chief, he said that he did not speak to anyone directly about the union. In cross-examination, he said that he may have had direct discussions with employees or he may have overheard employees in conversation.) In any event, he contacted head office to seek advice on what he should or should not do. Thereafter, there was general knowledge at head office that an organizing campaign was ongoing at ASM.

18. Mandel spoke first with with Cohn Campbell, the Director of Employee Relations at the Shoppers Drug Mart head office. Campbell sent head office staff members to discuss the union campaign with Mandel. One was Larry Thorne (of the Operations Department), who Mandel described as "my operations co-ordinator" and who was a regular contact for Mandel. The other was Mitch Danker of the Human Resources Department, who was assigned primarily to advise regarding the union campaign. The three men decided to call a meeting of employees to permit Mandel to express his position regarding a union in the store. Although Mandel did not want a union in his store, he understood that it was a matter for the employees to decide.

19. Mandel called two meetings on May 18 and 19 to ensure that all employees would have opportunity to attend. Although described as an "emergency meeting", Mandel said that calling a meeting in such a fashion was not unusual and that his management team calls many emergency meetings. At the May meetings, Mandel, Danker, Thorne, and members of the in-store manage­ment team were present as well as many of the employees, including McKellar. Mandel read and distributed copies of a letter that expressed his views and encouraged employees to consider "ALL the facts" before deciding whether to support the union.

20. McKellar's success rate in obtaining union cards slowed after the May meetings. A few persons signed cards in late May and at the start of June. However, at the start of June, McKellar learned of the circulation of a petition in opposition to the union. As the parties and the Board gleaned from copies of the petitions which had been edited to protect the identity of employees, most of the petitioners (21 of them) signed on May 30. Eight more persons signed between May 31 and June 2, and one more signed on June 10. During this period, McKellar found that employees were less willing to associate with her. She obtained only two more cards during June. At the same time, the union staff representative advised McKellar that she would have to re-sign any supporters who had subsequently signed the petition. In general, McKellar became discouraged during June.

21. There were other changes at the store in the month of June. Head office staff appeared in the store more regularly after the May emergency meetings. In particular, McKellar found that "Larry Thorne and Mitch [Danker] would be there until 11:30 [p.m.]" despite the fact that this had never occurred before May. The two men would either sit in Mandel's office, where there are store surveillance cameras, or they would walk about the store. McKellar says they talked to employees, but never to her.

22. Also in June, McKellar believed Mandel was attempting to intimidate her when she shopped in the store during off-duty hours. On one particular instance, it seemed to her that Man-del awaited her at the end of each aisle in the store, as if to be sure she was not speaking to any of the employees. Mandel denied that he had ever followed McKellar in such a fashion or that he had ever attempted to intimidate her. Having considered each person's testimony, and in particular McKellar's admission that she was generally fearful at that time that management was aware that she was the inside organizer, I am not persuaded that the evidence discloses that Mandel was fol­lowing McKellar around the store. McKellar's perception of events may have been skewed by her fear of discovery as the union activist.

23. McKellar further described, in detail, her version of a discussion with Mandel on June

24. In essence, she claims that McKellar called her into his office, closed his door and said "let's talk about the union". When she told Mandel that she did not know what he was talking about, he again said, "no, no, let's talk about the union." When McKellar tried to change the topic of discus­sion, Mandel purportedly said that he could get her to say anything he wanted her to say, by which McKellar understood him to mean that he could get her to tell him what he wanted to know about the union. Mandel flatly denies that he ever attempted to discuss the union with McKellar.

25. Despite little success in her efforts in June and despite her fear that management knew her role in the process, McKellar continued the organizing campaign. She described July as a "good month" for signing. She re-signed a number of persons who had signed the petition and signed some employees who had not signed cards before the circulation of the petition. Upon review of the file, the Board notes that 12 cards of the 20 membership cards submitted with the certification application bear dates of July 9 through July 26. (I note also that 3 of the cards are lost', in that the persons who signed them did not appear on the list of 43 employees. Further, 8 of the persons in respect of whom union membership evidence was submitted also signed the later petition in opposition to the union, which was submitted to the Board in a timely fashion.) Five of the July cards were signed during the three shifts that McKellar worked on July 24-26. McKellar believed that the campaign was going well and that she might soon have more than 55% of employ­ees signed in support of the union. By her count, there were 39 or 40 employees, and she now had 20 cards. Beyond the 20 employees who had signed cards, she had spoken to others who were as yet undecided and had said they would get back to her.

26. On July 26, Mandel called McKellar at her home to arrange for a meeting. The meeting was scheduled for July 30, when McKellar was next due at the store. McKellar carried a concealed audio-tape recorder. The meeting, in Mandel's office, was conducted by Cohn Campbell, the Director of Employee Relations from the Shoppers Drug Mart head office. Also present was Sta­cey Markle, from the Loss Prevention Department at head office. Mandel was unable to attend most of the meeting because a family issue had arisen.

27. The audio-tape record of the meeting was played before the Board as evidence and its accuracy was not challenged. Campbell told McKellar that John Nielsen (from the head office Human Resources Department) was doing an investigation into employee complaints that McKel­lar was harassing employees. Nielsen was on vacation, Campbell said, "so I got to come down".

According to Campbell, McKellar was threatening employees "regarding their performance on the job and for activities that are outside the store and what their job requirements are". When McKellar sought particulars of the accusations, Campbell told her to concentrate on the hours between 10 p.m. and midnight (when ASM formerly had no managers on duty), and said that employees' sense of being threatened "has to do around the issue of how they want to maintain the store and not maintain the store". McKellar continued to press for details of what exactly Camp­bell meant. He went on: "...the issues seem to be revolving around.. .in their point of view they are being threatened to sign union cards." Campbell explained that they were conducting an investiga­tion to find out exactly what the actual story was. McKellar pleaded ignorance. Campbell pushed on: "...So once again, you are not aware of any situations in which you would have tried to compel or encourage employees to sign union cards". In the end, Campbell told her that he had recom­mended that Mandel order her to stay at home with pay "for a couple of days" to allow for further investigation. He left the office to speak with Mandel, and the two of them returned to confirm the conclusion.

27. Apart from the references to union organizing, no other specific examples of harass­ment were mentioned. I would also note in particular that Campbell did not refer only to McKel­lar's actions "threatening" employees to sign union cards. He also asked whether she tried to "en­courage" employees to sign union cards (which, unlike threatening, is not necessarily prohibited activity). As I describe below, this is significant in that the employer never pursued its suggestion that McKellar or the union contravened the Act by intimidating or coercing employees during the organizing drive. And despite the employer's position that it was compelled to deal with harass­ment problems unrelated to union activity, nothing of the sort was put to McKellar.

28. Cohn Campbell did not testify in these proceedings. However, Arthur Mandel, John Nielsen and Stacey Markle testified about the employee complaints and the investigations that led to the July 30 meeting conducted by Campbell.

29. Mandel testified that two employees had come to him with "some issues" they had with respect to a certain individual in the store. Mandel could not recall who had approached him, nor could he recall the conversation other than that the gist of it was that there were problems between McKellar and other employees. He told them that the matter was beyond his scope and that he would call his head office resource people. Mandel called Cohn Campbell, and the two decided that John Nielsen and Stacey Markle should interview the employees who had come to Mandel. It was arranged that Mandel would send the employees out of the store to meet with Nielsen and Markle on July 21. (Although Mandel knew which 4 employees he would direct to Nielsen and Markle, he was unable to explain why he could not recall who might have approached him in the first place.)

30. On Campbell's instruction, Nielsen attended at the ASM store to conduct the inter­views. Before going out to the store, he was aware that there was some union activity at the store. It was by then a matter of general knowledge in the office. (Nielsen is part of a group of four per­sons, including Mitch Danker, that form the Human Resources group at head office.) As he was led to understand, his role in the entire matter was simple. He was merely expected to go in to take statements "because [he] was unbiased". He and Markle took the statements on Friday, July 21 and passed them on to Cohn Campbell on Monday, July 24. Campbell was on the phone at the time. At no time did he discuss the interviews or the situation in the store with Campbell or Man-del.

31. Nielsen had done investigations regarding harassment on other occasions. In his view, it was normal to speak to all those involved, including the accused, and he commented that the normal process in such investigation results in "an action plan" (which was not apparently the case with McKellar). Furthermore, it was usually the store owner who conducts such investigations. As he put it at several points in his testimony, he was "just following instructions" in this case and that he "was only asked to take the statements" at the store on July 21.

32. Markle was directed to attend by her supervisor, John Taylor, the Director of Opera­tions for Central Ontario. She had been to the ASM store a couple of times before and was acquainted with a couple of the employees, including two of the four she and Nielsen eventually interviewed. Although she had been employed in the head office for only a few months, she had participated in 3 harassment investigations. Like Nielsen, she had some general knowledge of union activity at the ASM store before attending there to conduct the interviews. However, she and Nielsen had "no idea" of the substance of the harassment complaints in respect of which they were asked to conduct interviews. She echoed Nielsen's summary of their role in the matter:

"...Our function was simply to take these things and pass them along".

33. On July 21, Nielsen and Markle waited in a parked car near the store. Markle advised employees where to find Nielsen and Markle. Four employees - Helen White, Denise Rose, Paul Verayo and Sue Godell - each took a turn being interviewed in the car. Nielsen and Markle started each interview by reading the Shoppers Drug Mart harassment policy to the employee. They advised each employee that they were taking statements for use by Mandel, and asked what infor­mation the employees would like to pass on to Mandel. Nielsen asked most of the questions, and Markle recorded the interview. At the end of each interview, Markle's notes were signed by the employee, Nielsen and her.

34. The statements disclose that McKellar was involved in union organizing. However, a greater portion of the content of the statements reveals an ongoing dispute between certain employees and McKellar's family. McKellar's mother, Jackie Glover, is the Head Cashier but was away on a stress leave' during the events of this case. The Acting Head Cashier was Helen, one of the four who signed statements. There is obvious tension between her and McKellar. Another of the four who gave a statement was Denise, and much of her complaint was focused on McKellar's sister Brenda. Although that statement suggests that Brenda was harassing employees, the employer took no action with regard to Brenda. In general, Markle conceded that the four state­ments revolved largely around a dispute or ongoing tension between Helen and others versus McKellar's family.

35. Aside from details of tension between workplace factions, the statements very clearly link McKellar to union organizing efforts. The statements were given to Cohn Campbell. Mandel also reviewed them. Just after the interviews, Mandel called Markle to advise that he had received 2 additional statements from employees Paul Verayo and Linda Ellis. She told him to give them to Cohn Campbell. In one of those additional statements, dated July 23, Paul Verayo complains that McKellar was repeatedly asking him to sign a union card during the working hours after 10 p.m. till midnight (i.e., when no manager was generally on duty). He also states that McKellar told him that she needed only a couple more signatures for union certification.

36. Mandel was vague in his recollection as to whether this was the first time that he had reason to believe that McKellar was organizing for the union. As he put it, "people were talking, there were rumours". In any event, he said that he did not pay any attention to any of the state­ments. This presumably included the claims in the statements that McKellar was organizing during work hours. Cohn Campbell, however, made an issue of it at the subsequent July 30 meeting with McKellar. She denied it then and denied it again in cross-examination during her testimony before the Board. There was no evidence that contradicted her statements.

37. What happened after July 30? Although the purported purpose of McKellar's removal from the store "for a couple of days" was to allow for further investigation, none was undertaken. The employer offered no evidence regarding any further action on its part during the length of McKellar's absence. The employer apparently investigated no further, although Mandel was approached by two employees. They presented him with two additional statements mentioned above.

38. There was no explanation offered generally to the employees about McKellar's absence from the store. Mandel testified that he spoke only to McKellar's sister Brenda since he expected people would be asking her what had happened. He told her that there were allegations of harass­ment. Mandel later suggested that he thought that he probably spoke to others, but offered no par­ticulars in that regard. He offered no details other than these. As he summarized, he "thought it was best handled quietly". McKellar testified that other employees did not know why she had been suspended. According to her, one employee thought that McKellar had been dismissed.

39. In addition to being suspended from work with pay as of the conclusion of the July 30 meeting, McKellar was barred from the store. (I use the term "suspended" for ease of exposition; it does not indicate a legal conclusion that McKellar's removal from the store with continuing pay constituted a "suspension".) The "couple of days" at home stretched into weeks. In the middle of the period, on August 8, McKellar called to ask Mandel whether she could come into the store to shop. He told her that it was out his hands', that she could not come into the store, and that he could not talk about it. Except for that call, McKellar had no communication from the employer until some 3 weeks after the July 30 meeting. On August 19, Mandel called to ask McKellar to attend at a meeting on August 22 for the purpose of arranging her return to work. In other prepa­ration for the meeting, Mandel also asked Stacey Markle from the Shoppers Drug Mart head office to attend, although the two had no discussion about what should or would happen in respect of McKellar. Markle was unaware of what decisions had been made in respect of McKellar, and learned only as a witness to the meeting.

40. At the August 22 meeting, McKellar again carried a concealed audio-tape recorder. The tape was played before the Board as evidence and the accuracy of its contents were not chal­lenged. Mandel referred to the signed statements that were mentioned at the earlier meeting. Again, neither the names nor the details of the statements were provided. There was minimal ref­erence to any further investigation: "...we talked to other people who said "I heard that, I remem­ber that", that kind of thing. So we've got corroboration there." Nothing in particular was said about the two additional statements that were received after the interviews conducted by Nielsen and Markle. No explanation was offered for the 3 week delay. None was ever offered. In testi­mony at the hearing of this case, Mandel commented that "unfortunately my company [presuma­bly a reference to the head office] takes longer" to deal with such matters.

41. At the August 22 meeting, Mandel advised McKellar both orally and through a written "final warning" that he was transferring her to a different shift. At the hearing, he explained that there was increased business during day hours and that there was therefore an opportunity to use McKellar on a unique day shift. He also explained in his testimony that he needed to do something to deal with the harassment complaints, that it is his responsibility to try to keep 50 people happy. At the meeting, Mandel advised McKellar that she would be working a 10:00 a.m.-3:30 p.m. shift (one to which no other employee is assigned), that she would no longer have supervisory authority and that she would no longer hold a store key. There was no change in her pay rate. Finally, Man-del warned her that if there were any further incidents of harassment, he would have to "let her go." McKellar raised no objection at the meeting. In particular, she said nothing about the childcare costs that this change would cause. In testimony at the hearing, Mandel also noted that McKellar had at some earlier time made it known that she would eventually prefer to work days.

42. Near the end of the meeting, Mandel left the office for a short time. At that point, Mar­kle told McKellar that she ought not to feel singled out. She told her that Mandel valued her as an employee: "Art really didn't have a choice.. .it was out of his hands...". Mandel then returned with a copy of a written "final request for performance improvement". It stated that "several employ­ees complained that Rhonda was harassing them during work; John Neilson and Stacey Markel were called in from central office to investigate." It confirmed that McKellar would no longer have supervisory authority and that she would no longer hold a store key. It warned that she would be terminated if there were "any more charges of harassment (substantiated)".

43. Although Mandel has never suspended anyone else, he described the suspension of McKellar and the issuance of the final warning as "very normal" and consistent with "normal store procedure".

44. In providing a rationale for its actions, the employer did not rely on any allegation that McKellar was breaching a store rule that prohibited organizing during working hours. Mandel, who took full responsibility for the decision-making, admitted that the decision to suspend McKel­lar was based solely on his review of the statements that head office had gathered and on Cohn Campbell's report of the interview with McKellar on July 30. Although he had an idea that McKel­lar was the inside organizer for the union, the effect that her suspension from work and exclusion from store premises would have on her organizing efforts "didn't even cross his mind". His deci­sion was based on Cohn Campbell's advice on the matter of the harassment complaints: the best way to handle the situation was to defuse it, to send McKellar home with pay, to do a little further investigation. Mandel felt that this would serve to make those working at the store more comfort­able.

45. After August 22, McKellar returned to work. No one else worked the shift to which she had been reassigned. Her shift started after the start of the day shift to which most employees' were assigned, and before the shift changes (which occur between 4:30 and 6:00 p.m.). As a result there was less opportunity to meet with other employees before and after shifts. Nonetheless, she made some continuing efforts to seek support for the union. During her suspension, she spent some time at a coffee shop near the store and on a bench outside the store, hoping to run into other employees. She also phoned about 5 employees at their homes. According to McKellar, employees were afraid to get involved. She said she got similar responses in efforts she made after her return to work on August 22.

46. McKellar noticed further managerial changes upon her return to work after August 22. After her suspension, someone from the in-store management team was on duty until midnight. In addition, head office personnel - Larry Thorne and Bill Rustice - were present between 9:00 p.m. and midnight. After Mandel acknowledged that there had been changes, but explained that in the time since May of 1995 Shoppers Drug Mart has been in the midst of a major transition in their methods of doing business. Another reason for extension of management presence until store clos­ing was the need that was expressed by employees in a staff survey conducted in January of 1995.

II. Violations of sections 65, 67 and 71

47. The applicant argued that the responding party had committed a number of unfair labour practices. In the applicant's submission, the following provisions of the Act were contra­vened:

48. 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.

49. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to com­pel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

71. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

72. Section 91(5) prescribes the burden of proof that applies in respect of a number of the allegations of unfair labour practices:

91.-(5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.

49. In Royal Homes Limited, [1992] OLRB Rep. Feb. 199, where the applicant union sought unfair labour practice certification' under the predecessor provision to section 9.2, the Board summarized its approach to allegations where the reverse onus provision of section 91(5) applies:

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

51. What then is the extent of the burden of proof that has been shifted by statute to the respondent? The Act speaks of the burden of proof "that any employer ... did not act contrary to this Act". In its earlier decisions, this Board has stated that, even if only one of the reasons for a discharge related to union activity, the discharge would nevertheless constitute a violation of the Act. For a review of this jurisprudence, see Delhi Metal Products Ltd., [1974] OLRB Rep. July 450. In other words, the appear­ance of a legitimate reason for discharge does not exonerate the employer, if it can be established that there also existed an illegitimate reason for the employer's conduct. This approach effectively prevents an anti-union motive from masquerading as just cause. Given the requirement that there be absolutely no anti-union motive, the

effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts - first, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both ele­ments must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred.

41. Subsequently, the Board reiterated in

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

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

6. In the case at hand, we have examined the reasons advanced by the respondent in some detail for the various activities alleged, not because we are adjudicating their reasonableness or their justness, but because it is "a step in the more complex process of ascertaining the employer' motivation" (Hallowell House Ltd., [1980] OLRB Rep. Jan. 35).

7. Bearing that approach in mind, I turn to the union's allegations that certain employer activities were motivated by anti-union animus, whether wholly or in part.

8. First, I note that there is no allegation of impropriety regarding the meetings called by the employer on May 18 and 19 where Mandel expressed his views on the union. However, they form part of the context in which subsequent employer actions were taken. Mandel learned of the organizing campaign just prior to those meetings. His recollection of the source of that information was imprecise. Mandel did recall that the first person he called was Cohn Campbell at Shoppers Drug Mart head office. As the evidence discloses, Campbell played the critical role in providing advice to Mandel in dealing with the organizing campaign.

9. After the initial contact from Mandel, Campbell assigned other head office personnel to assist directly at the ASM store. In addition to Larry Thorne, who had an ongoing relationship with Mandel in provision of operations advice, Mitch Danker was assigned to assist Mandel in dealing with the organizing campaign. Mandel wanted advice on what he could or could not do in responding to the campaign. Having considered his testimony in whole, including his admission of opposition to the trade union, I find that he genuinely sought to act within the law. Understand­ably, he believed that he could rely on the advice of the experienced resource people' at his head office. However, I have concluded that the advice he received, the actions head office personnel took on behalf of ASM and Mandel, and the actions that Mandel took based on head office advice and actions were tainted by anti-union motive.

10. Turning to the specific incidents about which the union complains, most notable was the removal of McKellar from the workplace on July 26 in midst of renewed success in her organizing campaign. As the tape-recorded statements of Campbell at the July 26 meeting disclose, the only specific incidents of alleged harassment that were put to McKellar involved her union organizing efforts. Although McKellar was told that she would be home for only "a couple of days" in order to permit further investigation of the harassment complaints, she was kept out of the workplace for 3 full weeks.

11. In fact, no further investigation occurred. No other "substantiation" of complaints was particularized. No reason was given for the lengthy three-week period that McKellar was barred from the store. When meeting with Mandel to discuss her return to work, McKellar was told orally and in writing that any further harassment would result in her dismissal. This warning must be con­sidered in light of the fact that the only specific example of harassment mentioned by the employer was that of her union organizing efforts. Mandel offered nothing further in his August 22 meeting with McKellar or in his testimony before the Board. Campbell never offered testimony. Even if in Mandel's mind there was legitimate business rationale for dealing with strife within the cashier group, the employer did not act solely in accordance with such rationale.

12. Mandel's treatment of McKellar was based on the investigation conducted by head office, on the interview of McKellar conducted by Campbell, and on Campbell's advice. As the employer witnesses' admitted, the information they gathered gave them an idea that McKellar was the sole union organizer. In addition, there was information that McKellar was telling others that she was close to success in signing a majority of the employees. Campbell never disclosed any example of harassment other than that related to union organizing efforts and so failed to provide any alternative rationale for the purpose of investigating McKellar. I find that Campbell's advice -and Mandel's actions based on that advice - were not free of anti-union motive. Indeed, the employer failed to present a cogent case of what non-union concerns motivated its actions in respect of McKellar.

13. I have no doubt that Mandel is genuinely concerned about the workplace tension that exists between McKellar's family and Helen and other employees. The statements gathered by Nielsen and Markle suggest such a problem. Indeed, there is suggestion that McKellar's sister Brenda is also accused of "harassing" employees. If the employer's sole concern was to deal with harassment unrelated to the union, why was no investigation undertaken with respect to Brenda? Instead, the employer took no action in respect of anyone other than Rhonda McKellar. In its interview with McKellar regarding the harassment complaints, the employer's representative, Campbell, did not pursue anything other than McKellar's union activity. Moreover, the procedure undertaken in the harassment investigation' in this case was unusual in that it varied from the expe­riences and expectations that Nielsen and Markle described with respect to other Shoppers Drug Mart harassment investigations'.

14. I also note the absence of any allegation by the employer that McKellar's conduct of union activity amounted to intimidation or coercion that would constitute violation of the Act. No

such complaint was made or pursued by the employer. Further, in the evidence offered by the employer there was never more than a hint that part of its reason for investigation was concern that McKellar was organizing during working hours. In any event, there was no evidence that the employer had issued a rule prohibiting discussion of the union during working hours. And, despite the fact that the employer apparently believed that McKellar was campaigning for the union during the late night working hours when no manager was present, there was no evidence to support that belief. Although Campbell and Markle hinted at this belief in the July 26 meeting with McKellar (asking her to focus on what happened in the store in the hours before midnight when no managers were present), it was not offered as grounds for removal of McKellar from the workplace or reas­signment to another shift.

58. As I describe in greater detail below in dealing with the application of section 9.2, it is also noteworthy that the employer never explained McKellar's removal to other employees.

59. In all of the circumstances, the removal of McKellar from the workplace was analogous to a suspension or dismissal in midst of an organizing drive. And with no further investigation undertaken during her removal, the three week suspension was arbitrary. The employer failed to provide cogent reasons for its determination that it needed to remove McKellar from the work­place, and the process it undertook in her case was discriminatory and arbitrary in its variance from Shoppers Drug Mart usual' processes. In the circumstances, I find that the employer has failed to establish that its action was entirely free of anti-union motivation. The responding party therefore violated sections 65 and 67 of the Act.

60. I also find that the employer's reassignment of McKellar upon return to work was not entirely free of anti-union motivation and that the responding party violated sections 65, 67 and 71 of the Act. Even if the removal of McKellar's minor supervisory duties and the key to the store cannot be characterized as a demotion, it was employer action taken in response to McKellar's recent interactions with other employees. The employer purportedly took these actions to rectify the problems caused by perceived harassment. Yet, the only harassment that the employer specifi­cally identified as problematic related to McKellar's union activities. The same is true of her reas­signment to a unique day shift. Even if the employer acted according to its belief that McKellar had always wanted day shift work, it offered little reason for the creation of an unusual shift that would be unique to McKellar. At the same time, the new shift would remove any chance for McKellar to interact with employees at the starts and ends of the usual shifts.

61. The union also alleges that the employer violated the Act on June 29 when Mandel attempted to discuss the union with McKellar. For the purposes of considering the union's argu­ment, I have accepted McKellar's version of what occurred on that day. I have also considered the context in which the conversation occurred. Mandel had been aware of the union organizing cam­paign for some time, but the evidence does not establish that he was then aware that McKellar was the sole organizer. An anti-union petition had been circulated, but Mandel was unaware of it. Although Mandel invited McKellar to talk about the union, she declined. And while McKellar believes that Mandel's other comments were meant to suggest that he could compel her to talk about anything, including the union, she nonetheless managed to avoid any discussion of the union. Because Mandel said nothing further about the union, it is not obvious to me that he intended to interfere in McKellar's exercise of statutory rights. I do not conclude that Mandel's actions in this incident show anti-union motive. I find no violation of the Act with respect to this isolated incident.

62. However, I find that the various steps to increase managerial presence in the workplace during the organizing campaign, especially in the late hours before store closing, were further employer actions that were not free of anti-union motive. Although the employer states that part of these moves were in response to employee concerns, I cannot disregard the coincidence of increased management presence and the union campaign. The employee survey was taken in Janu­ary; the first change occurred in May or June when the union campaign was under way, and further change occurred upon McKellar's return to work in late August. Moreover, one of the persons seen more regularly was Mitch Danker whose primary role was to advise in respect of the union campaign. Finally, it is clear from the evidence that the employer believed that McKellar was orga­nizing during working hours late at night when there traditionally had been no manager present, and it was in this time slot that the employer increased its managerial presence. In the circum­stances, I conclude that something other than legitimate business rationale explains the increased managerial presence. I find that these actions were not entirely free of anti-union motive and therefore that the employer violated section 71 of the Act in these actions.

III. Certification pursuant to section 9.2

63. Having determined that the employer violated the Act, the remaining issue is whether the remedies should include certification pursuant to section 9.2. It provides:

9.2 If the Board considers that the true wishes of the employees of an employer or a member of an employers' organization respecting representation by a trade union are not likely to be ascer­tained because the employer, employers' organization or a person acting on behalf of either has contravened this Act, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.

64. In the applicant's submission, the Board has granted certification pursuant to section 9.2 where the employer has dismissed the inside organizer, or where there is a pattern of unfair labour practices. Counsel for the applicant argues that both conditions exist in this case. In the applicant's submission, McKellar's suspension had the same effect as a dismissal. The responding party contends that there was no contravention of the Act and that there is no reason to find that the true wishes of employees respecting union representation cannot be ascertained. In its view, the union's organizing campaign simply stalled short of its goal and the union was trying to get through section 9.2 what it could not get through the normal certification processes. Further, the responding party argues that there was not substantial support for the union.

65. In CMP Group (1985) Ltd. [1993] OLRB Rep. Dec. 1247, the Board described the test that it applies under section 9.2:

66. A contravention of the Act is a necessary but insufficient condition precedent to the exercise of the Board's power under section 92. We must now determine whether the employer's con­traventions are of such a nature that the true wishes of employees respecting trade union repre­sentation are not likely to be ascertained . If it is determined that such wishes are not likely to be ascertained, the Board may exercise its discretion to certify the applicant. We should note that, as a result of recent amendments to the Act, the Board (as it was under the former section 8) is no longer directed to determine whether the applicant has membership support adequate for the purposes of collective bargaining as a condition precedent to the exercise of the Board's jurisdiction under section 9.2. Consequently, it was not suggested that the applicant's admittedly meagre membership support in this case was a bar to certification under section 9.2.

67. In this case, having considered the nature of the employer's violations of the Act as well as all of the other circumstances, I find that the true wishes of employees are unlikely to be ascer­tained and that this is an appropriate case for certification under section 9.2.

68. A pattern of increasing employer interference in the campaign can be traced. Through­out the period, Mandel relied on the advice of the resource staff of Shoppers Drug Mart head office. It appears that the employer concluded that McKellar was conducting organizing efforts in the hours after 9:00 p.m. when managers were not present in the store. The employer changed its practice in managerial assignment in May or June when McKellar noticed that head office person­nel were in the store until 11:30 p.m. One of the head office persons was Mitch Danker, whose pri­mary responsibility was to assist Mandel in dealing with the union campaign. At about the same time, in late May and early June, an anti-union petition was circulated. (There was no suggestion of employer involvement in the petitions.) Although McKellar had found some success in her efforts prior to May 18, she now felt discouraged. In July, she regrouped and renewed her efforts, and signed a significant number of cards. After a particularly successful 3-shift effort (July 24-26), the employer suspended her from work. The employer had just received information that allowed it to identify McKellar as the inside organizer for the union and that disclosed that McKellar was telling employees that the union was near to obtaining support of a majority of employees. In con­fronting McKellar with allegations of harassment, the only particular example to which the employer referred was her union organizing efforts.

69. What was the likely reaction of employees to the removal of McKellar from the work­place? As Mandel put it, the matter was dealt with "very quietly". In all of the circumstances, I find it probable that employees were unaware of the details of McKellar's removal from the work­place. The employer certainly did not offer details. Employees could not be expected to know the employer's actual or operative reasons for removing McKellar. Nor could they be expected to know whether she had been suspended, with or without pay, or dismissed. Even if they had reason to believe she was being sent home "for just a couple of days" with pay in order to allow for an investigation, they could not be expected to know why the delay stretched into weeks (and there was no evidence that any explanation for the delay was provided to any employee). It is not sur­prising that McKellar says that one employee thought she had been dismissed. While I am not in a position to conclude whether employees believed that McKellar had been dismissed, I am able to find that it is probable that most or all employees knew that McKellar was the sole inside organizer for the union. Indeed, some employees had offered that information to their employer as part of their statements regarding harassment. In the circumstances, I find that McKellar's removal had the same chilling effect that her dismissal would have had upon the organizing campaign.

70. Like her removal from the workplace in the midst of a successful stretch of organizing, the conditions imposed on her return to work sent the message that the employer would react severely to union activity. Employees were likely to conclude that the employer's position was that encouragement of fellow employees to join the union constituted disciplinable "harassment" that could lead to a shift change, loss of responsibilities, and that if pursued would lead to discharge. At the same time, the employer increased assignment of managers during all store hours until closing. In all of the circumstances, this was a further message that the employer would not tolerate employees encouraging support for the union.

71. Counsel for the responding party argued that the Board could find that the union's cam­paign had reached its zenith, and that the campaign stalled because of lack of employee interest rather than the employer's actions. As the Board has noted in other cases where the employer has pressed the same argument, the problem for the Board is that it cannot now assess whether the union had already obtained all the support that it would have received in any event before the unfair labour practices began. The Board cannot now assess what the true wishes of employees with respect to union representation would have been prior to contravention of the Act. As the Board put it in Beaver Lumber, [1992] OLRB Rep. May 553, at paragraph 39: "Whatever doubt we may now have concerning employees' appetite for collective bargaining arises because we are now unable to assess their true wishes free of the effects of the improper interference by the respondent. This is the type of situation that section 8 was designed to remedy [as was its successor provision section 9.2].

72. I am not persuaded that any remedy provided by the Board can result in a voluntary expression of the true wishes of employees with regard to union representation. The employer's violations of the Act included a clear message that union support would affect job security. The true wishes of employees with respect to union representation would not likely be ascertained even by means of a representation vote at this point. Employees would vote not on whether they wish to be unionized but, rather, on whether they wanted job security. (Again, see the Beaver Lumber decision.)

73. For all of these reasons, the Board issued the bottom-line decision that found violations of the Act, ordered reassignment of McKellar to her former work schedule, and ordered issuance of a certificate to the applicant.

The Employer Request for Reconsideration

73. In its request for reconsideration of the Board's decision dated November 10, 1995, the responding party requests the following relief:

(1) that the decision be struck down as null and void;

(2) that the certificate be quashed;

(3) that the Board reconvene to hear argument on the evidence with respect to the application of section 11(1) of the new Act;

(4) in the alternative, that the issuance of the certificate be stayed pend­ing an opportunity for the responding party to make an application for judicial review of the Board's decision;

(5) that the Board conduct a hearing to permit oral submissions on the issues set out in the request for reconsideration.

74. The responding party offered the following submissions in support of its request:

75. Bill 7 received Royal Assent on November 10, 1995.

76. Subsection 3(1) of the new Act, as set out above clearly indicates that the section applies with respect to proceedings commenced under the old Act which a final deci­sion has not been issued on the day which the section comes into force (emphasis added).

77. Clearly a final decision had not been issued before the coming into force of the new Act. Therefore, clearly, the new Act should have been applied.

78. Given that there have been substantial changes to the Act with respect to certification where the Act has been contravened, now section 11 of the new Act, the Board has not applied the proper statutory scheme in weighing the evidence before it and ren­dering its decision.

79. As the Board has not applied the Act in force at the time of the decision, the decision is null and void.

80. The decision of the Board is not a final decision in that no reasons have been pro­vided.

81. As the Board has, to date only issued a "bottom line decision" and has indicated that reasons will follow at a later date, the responding party reserves its right to respond to such reasons should it deem it necessary to do so.

82. For the responding party, the point is to open opportunity for argument under section

11(1) of the new Act. Section 11(1)-(3) of the new Act replaced section 9.2 of the old Act. The rel­evant portions provide as follows:

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

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

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

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

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

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

The unfair labour practice provisions relied upon by the applicant (section 65, 67 and 71 of the old Act) remain unchanged (now sections 70, 72 and 76 of the new Act).

76. The Labour Relations and Employment Statute Law Amendment Act, 1995 (or "Bill 7") repealed the old Labour Relations Act and replaced it with the Labour Relations Act, 1995. Amongst other measures, Bill 7 contained certain transitional provisions that govern proceedings affected by the change in law. In the transitional provisions, section 3 states, in part, as follows:

3.- (1) This section applies with respect to proceedings which commenced under the old Act in which a final decision has not been issued on the day on which this section comes into force.

(2) A proceeding continuing after the new Act comes into force shall be decided as if the new Act had been in force at all material times. The presiding person or body shall apply the sub­stantive provisions of the new Act as well as the procedural rules established under it.

(3) Despite subsection (2), in a proceeding relating to an application for certification of a trade union as a bargaining agent, the presiding person or body shall apply sections 5, 8, 9 and 9.1 of the old Act and not section 7, 8 and 10 of the new Act. This subsection applies only with respect to applications for certification made before October 4, 1995.

77. Section 86 of Bill 7 provided that the new Act came into force on the day it received Royal Assent. As noted by the responding party, the Act received Royal Assent on November 10, 1995. The Board issued its bottom-line decision on November 10, 1995.

78. Is the November 10, 1995 decision a "final decision" for the purposes of Bill 7's transi­tional provisions?

79. The responding party argues that the November 10, 1995 decision is not final because reasons were not to be provided until a later date. Impliedly, the responding party would have the Board treat the case as "a proceeding continuing after the new Act [came] into force" and, there­fore, one to which the new Act's provisions would apply as contemplated by subsection 3(2) of Bill 7's transitional provisions.

80. The absence of reasons at the time of issuance of a bottom-line decision does not under­mine the dispositive effect of the decision. When a decision finally determines the central issue between the parties or finally determines one of the parties' substantive rights, it must be consid­ered a "final decision". (See the unreported decision of the Board dated January 5, 1996 in Dryden District Roman Catholic Separate School Board, Board File No. 2688-95-R, concerning what con­stitutes a "final decision for the purposes of Bill 7's transitional provisions.) That is precisely the effect of the November 10, 1995 decision of the Board. The decision determined finally that the responding party had violated the Act and that a certain remedy flowed. It determined finally that the true wishes of employees were unlikely to be ascertained. It determined finally the description of an appropriate bargaining unit and that a certificate would issue to the applicant. (See Royal guard Vinyl Co. [1994] OLRB Rep. June 775 for a discussion of the nature and purpose of bottom-line decisions that dispose of cases with reasons to follow. And see section 17 of the Statutory Powers Procedure Act which distinguishes the requirement to issue written "final deci­sions" from the requirement to issue written "reasons" if requested by a party.)

81. Accordingly, these are proceedings commenced under the old Act in which a final deci­sion issued on November 10, 1995.

82. The remaining issue is whether these are proceedings in which a final decision had not been issued on the day on which Bill 7 came into force. The responding party suggests that the question to be asked is whether a final decision had been issued "before the coming into force of the new Act". However, that is not what the statute says. On a plain reading of the provision, sec­tion 3(1) requires the Board to answer this question: had a final decision been issued on November 10, 1995? In this case, the answer is "yes".

83. Accordingly, the Board rejects the responding party's contention that section 11(1) of the new Act should have applied to this matter rather than section 9.2 of the old Act. I would com­ment that, despite differences in the old and new provisions, it is not clear to me that the result in this case would have differed in the event of the application of new section 11(1). That new provi­sion is not the same as what was once section 8, the unfair labour practice certification' provision that existed before Bill 40 created section 9.2. Although the new Act's section 11(1) requires the Board to consider the adequacy of support for the union amongst employees, it does not require the Board to consider the results of a representation vote (or even to conduct such a vote) in that regard. Furthermore, I note that the level of support for the union that was disclosed in the instant case may well have been sufficient to find "adequate support" in the terms of either pre-Bill 40 sec­tion 8 or the new Act's section 11.

84. As for the request to stay the issuance of the certificate pending application for judicial review, I see no reason that matters should be stayed in the face of a pending application in the courts. Here, a stay would not merely preserve the status quo; it would cause deterioration in the position of one of the parties. See EKT industries inc., [1987] OLRB Rep. May 696 and Royalguard, supra.

85. For these reasons, the Board denies the request for reconsideration and the various requests for other relief made by the responding party.