D. Vandermeer, C. Thain, and a Group of Employees v. United Food and Commercial Workers International Union, Locals 175 and 633, 1998 CanLII 18284

[1998] OLRB REP. JULY/AUGUST 543

4006-96-R D. Vandermeer, C. Thain, and a Group of Employees, Applicants v. United Food and Commercial Workers International Union, Locals 175 and 633, Responding Party v. Banlake Associates Limited c.o.b. as Bancroft I.G.A., Intervenor

BEFORE: Gail Misra, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.

APPEARANCES: Bruce Sevigny, Dirk Vandermeer and Cindy Thain on behalf of the Group of Employees of Banlake Associates Ltd. c.o.b. as Bancroft I.G.A.; David M. Chondon and Bud Schramn for Bancroft I.G.A.; Kelvin Kucey, Ovila Dagenais and Bill Cooper for UFCW.

DECISION OF GAIL MISRA, VICE-CHAIR AND BOARD MEMBER H. PEACOCK; August 18, 1998

1. This is an application for the termination of bargaining rights, filed pursuant to section 63 of the Labour Relations Act, 1995, seeking a declaration that the responding party no longer represents the employees in the bargaining unit for which it is the bargaining agent.

2. The collective agreement between the responding party (the "union" or "UFCW") and the intervenor (the "employer" or "Bancroft IGA") expired on March 24, 1996. This application was filed on February 28, 1997, and was found by the Board (panel somewhat differently constituted) to be timely. In its response to the application the union alleged a breach of section 63(16) of the Act in that it claimed there had been employer threats, coercion and intimidation in connection with the application, and/or that the employer or a person acting on its behalf had initiated the application. In light of the allegations made, the Board ordered that a representation vote be held among the employees of the Bancroft IGA, but that the ballot box be sealed pending the outcome of these proceedings.

3. At the time the termination application was made the bargaining unit at the Bancroft IGA had been engaged in a legal strike since October 21, 1996. In the spring of 1997 the workplace parties were able to conclude a collective agreement which was ratified by the majority of bargaining unit members, leading to the conclusion of the strike on May 1, 1997. Notwithstanding that the strike was settled, the applicants wished to proceed with this termination application, and it therefore came on for hearing on August 25, 1997. The Board held nine days of hearing, concluding in March 1998.

4. In the course of the hearing, eight persons were called as witnesses. In addition to their testimony, the Board has before it 17 exhibits which were entered during the course of the proceedings. In making the findings and reaching the conclusions set forth in this decision, the Board has duly considered all of the oral and documentary evidence, the submissions of counsel, and the usual factors germane to assessing evidentiary credibility and reliability, including the firmness and clarity of the witnesses' respective memories, their ability to resist the influence of self-interest when giving their version of events, the internal and external consistency of their evidence, and their demeanour while testifying. The Board has also assessed what is most probable in the circumstances of the case, and considered the inferences which may reasonably be drawn from the totality of the evidence.

5. Since the Bancroft IGA store was a strike-bound workplace during the initiation and circulation of the petition collected in support of the termination application, the evidence led by the union in this case was somewhat unusual. The union summoned the two applicants to give evidence, along with two individuals who had been on the picket line, one former employee of the Bancroft IGA, one other employee who had crossed the picket line during the strike, and one union official. No evidence was called by the applicants, while the employer called the General Manager of the store to give evidence regarding his role. The owner of the store for most of the relevant period, Mr. Jerry Howarth Sr., did not testify.

THE FACTS

6. On January 28, 1993 the UFCW was certified as the bargaining agent for the employees of the Bancroft IGA. As the parties could not reach a collective agreement initially, the employees engaged in a legal strike. Eventually, to reach the first collective agreement, the parties had to participate in first contract arbitration. In 1996 the union began to bargain for a second collective agreement. On February 23, 1996 an application was made for the appointment of a conciliation officer. The union later filed a number of complaints of unfair labour practices arising out of the second round of negotiations, and there has been considerable litigation at the Board regarding these matters. In September 1996, and until the end of December 1996, the employer failed to comply with some of the Board's orders emanating from those matters. The union therefore filed a consent to prosecute application with the Board. There was also a court application made by the union alleging that the employer was in contempt. A legal strike began in October 1996. A brief recital of this history is simply to illustrate that the workplace parties have had a fractious relationship from the time of certification.

7. The employer is a grocery store located in Bancroft, Ontario, serving both the local Bancroft population and cottagers in the summer time. It is one of two grocery stores in the town. Mr. Jerry Howarth, Sr. was the owner of the operation, and ran the store until July 1996, when Bud Schranin was hired as the store's General Manager. Mr. Howarth Sr. was the chief negotiator for the employer until some time in January 1997, at which time Mr. Schranin took over negotiations. The next level of management of the store is comprised of Ron Mountney, the Store Manager and Director of Store Sales, and Ed Sturgeon, the Assistant Store Manager. Department managers, and a head cashier, are persons who are within the bargaining unit represented by the union. However, on Sundays or on the very odd occasion when Messrs. Schramn, Sturgeon and Mountney are not available, Ron Koppin, the grocery department manager, is in charge of the store. Mr. Koppin is the only department manager who has an office, which he shares with Messrs. Mountney and Sturgeon. Store clerks, cashiers and meat cutters make up the remainder of the bargaining unit.

8. Mr. Schramn has been the General Manager of the Bancroft IGA since July 22, 1996. Previously he had worked for 27 years with Oshawa Foods, and for the last 11 years of his tenure with that company had been on the road going to stores as a retail counsellor to advise stores on retail sales and profitability. He had never, previous to this round of negotiations, been involved in bargaining with a trade union.

9. It would now appear that from July 1996 on there was a deal it the making pursuant to which Mr. Schramn would buy the Bancroft IGA store from Mr. Howarth Sr. However, Mr. Howarth Sr. remained active at the store for some time, until around January 1997, because the deal was not complete. Prior to Mr. Schramn joining the Bancroft IGA, Mr. Howarth Sr. had indicated to Mr. Schramn that he would handle the negotiations for a new collective agreement, and Mr. Schramn had believed that there would be a new collective agreement in place when he became involved in July 1996. Initially, Mr. Schramn simply ran the store, while Mr. Howarth Sr. continued as the owner and the one responsible for dealing with the union. The two men shared the General Manager's office throughout this period. In August 1996 Mr. Howarth Sr. would consult with Mr. Schramn about his negotiations with Mr. Fuller, but Mr. Schramn had little to say at that time. It was not until the strike began that Mr. Schramn realized he should be more involved as he had a financial interest in the future viability of the store.

10. John Fuller has worked for 33 years in the retail food industry and has spent the last 21 years as a staff representative for a trade union. For the last seven Mr. Fuller has been working for the applicant trade union. In June or July 1995 Mr. Fuller was appointed as the Eastern Regional Director, and as such became responsible for the Bancroft area.

11. He testified that the IGA stores are smaller grocery stores in Ontario. The Bancroft IGA is about 15,000 sq. ft. in size, compared to an average new A&P store, which would be about 50,000 sq. ft. in size. Mr. Fuller has been involved in this particular store from around the time it was organized in January 1993. In early 1996 the workplace parties began to bargain for a second collective agreement. On February 23, 1996 a conciliation officer was appointed by the Minister of Labour. Although several days of negotiations were scheduled, the employer cancelled them all. The collective agreement expired in March 1996. The union therefore asked for a "no board" report after April 15, 1996. At the behest of the employer, on May 15, 1996 a final offer vote was held in which the employees failed to ratify the employer's last offer. There were no negotiations from April to August 1996. The day following the final offer vote the employer unilaterally, and without any notice to the union, implemented a 25 cents per hour increase in wages, stopped remitting or deducting union dues, and stopped making the pension contributions to the employee pension plan. This led to the union filing unfair labour practice complaints with the Board.

12. In mid-June 1996 the union conducted a strike vote in which the employees voted narrowly in favour of striking. Although the union was in a legal strike position, it decided to try to continue to negotiate with the employer. In July the Board's Labour Relations Officer set up a meeting regarding the unfair labour practice complaint, but Mr. Howarth Sr., without any notice to the Board, failed to attend.

13. Ron Koppin, the grocery department manager, has held that position for the last eight years, but has worked at the store for about 18 years. As noted earlier, Mr. Koppin has a desk in an upstairs office of the store, where he shares space with two members of management and with Dorothy O'Connor, the bookkeeper. Mr. Koppin is the only bargaining unit member who has the use of an office and telephone, and has access to the store facsimile machine and photocopier.

14. On July 3, 1996, just after the union had received a strike mandate, Mr. Koppin prepared a petition which he circulated in the store asking for a new strike vote. He then faxed the petition to the union, using the employer's FAX machine and FAX cover sheet, and indicated that he would be giving Mr. Howarth Sr. a copy of the petition as well. The petition bore 33 signatures, including Messrs. Koppin and Vandermeer, and Ms. Than. Mr. Koppin has no recollection of how or when the signatures were collected.

15. The employer finally agreed to meet with the union on August 19, 1996. Some negotiations took place that day. On August 25 the union held a members meeting to discuss what had gone on in negotiations, and because the union was due to meet with the employer again on August 29. The meeting was held at the community centre ice rink in Bancroft. At that time Harold Maloney, the meat department manager, attempted to attend the meeting. Mr. Maloney has opposed the union from the start, and is not a member of the union. He is a long-service employee, and a friend of Mr. Howarth Sr. As such, Mr. Howarth Sr. was Mr. Maloney's best man at his wedding, he looks out for Mr. Howarth's property when Mr. Howarth Sr. is away, and he borrows Mr. Howarth's vehicles when his own is not running. The relationship between the two men is well-known among the staff of the Bancroft IGA. Mr. Fuller therefore quietly told Mr. Maloney before the meeting that he would not be able to attend as the meeting was for members only. Mr. Maloney challenged Mr. Fuller. The meeting was therefore convened, Mr. Fuller explained the situation to the members in open session, and, since Mr. Maloney continued to refuse to leave, Mr. Fuller adjourned the meeting for 10 minutes to meet with the Local Executive. The Executive was of the view that the meeting must go on as there were 30 or 35 members present who wanted to know what was happening in negotiations. Mr. Fuller therefore called the Ontario Provincial Police to request that Mr. Maloney be removed. He then went to find Mr. Maloney to tell him the Police had been called. When he found Mr. Maloney he was at a pay phone with Mr. Koppin, who was on the telephone speaking to someone. Mr. Fuller told Mr. Maloney he had called the police, and then said to Mr. Koppin "You're not calling Jerry Howarth are you?" Mr. Koppin admitted he was. Mr. Fuller returned to the meeting and, with sarcasm, told those assembled that they would wait till Mr. Koppin had returned with Mr. Howarth's instructions. Within minutes of the interchange by the telephone, and before the police arrived, Mr. Maloney's car was seen leaving the parking lot.

16. During negotiations on August 29, 1996 the parties had discussions about the modified closed shop provision in the collective agreement. The union wanted all employees to become members of the union. The employer vacillated on this subject because Mr. Howarth Sr. was concerned about what this would mean for Mr. Harold Maloney, his long-time friend and neighbour. Finally, the union suggested that Mr. Maloney could be exempt from having to become a member, but would have to pay union dues. Nonetheless, nothing substantial was resolved on that day of negotiations.

17. On September 5, 1996 the Board issued its decision in favour of the union in the unfair labour practice complaint. However, the employer failed to comply with the Board's decision. In September the employer gave the union another "final offer", but then withdrew that offer. The union returned to the Board regarding the employer's non-compliance with the Board's earlier decision and a further hearing was held. On December 23, 1996 the Board issued another decision ordering the employer to comply with various directions, to set a schedule to meet with the union for the purposes of collective bargaining, and to meet and bargain in good faith before January 15, 1997.

18. The strike commenced on October 21, 1996. That day Mr. Howarth Sr. ran an advertisement in the Bancroft Times naming those employees who were out on strike and laying out his position regarding the employer's negotiating position. All through the strike the union and employer each produced their own literature for distribution to the people of Bancroft, or as advertisements in the newspaper. From early in the strike, around October 25, 1996, the employer suggested that if the store was not supported, management may be "forced to close the doors".

19. Cindy Than, one of the applicants, is a full-time store clerk in the Bakery Department of the Bancroft IGA. She has worked in the store since 1987, and at the time she testified was earning $9.71 per hour. Ms. Thain indicated that the staff of this store are mostly long-term employees, although there is some turn-over in staff. Immediately following certification in 1993, Ms. Than and six other employees were dismissed from employment by Mr. Jerry Howarth Sr., the owner of the store at that time. As a result of a union complaint these employees were subsequently returned to work. Ms. Than testified that she became concerned about the union's presence in the workplace when a successful strike vote was held in June 1996. She knew at that point that she would not go out on strike. Ms. Than was not aware of negotiations following the commencement of the strike, either from the union or from inside the store.

20. From October on and through the winter this store is generally quiet as, given its location in Bancroft, it is largely dependent on cottagers for most of its business. During the strike the store remained open. On Friday, the busiest business day, the store would have 45 to 50 persons at work. From Tuesday to Thursday there would be between 22 and 25 persons at work. While the store lost business in the first two months of the strike, business began to pick up again around Christmas 1996. The store is open till 6 p.m. Saturday to Thursday, and till 9 p.m. on Friday.

21. Once the strike commenced, between 45 to 50 employees (including the applicants) crossed the picket line to continue to work. A central coffee pot was set up by the employer in the store, between the warehouse and the grocery store, for the use of all employees. This location became pivotal in discussions in the period leading up to the filing of the termination application. The employees appeared to have talked a lot during their time at work during the strike, particularly about how the strike appeared to be going on a long time, that the strike was hurting the business, that the store may close, and that the strike may therefore be jeopardizing their jobs. The conversations included both manage­ment and the department managers who were bargaining unit members: Jerry Michael Howarth Jr. (son of the owner of the store), Ron Koppin, Harold Maloney, Marj Mulholland, Darlene Storey, and Shirley Switzer. Mr. Howarth Sr. was in the store from time to time, but the store was managed by Messrs. Bud Schramn, Ron Mountney and Ed Sturgeon.

22. Mr. Vandermeer, Ms. Than's co-applicant, is a meat cutter who has worked at the Bancroft IGA store for 17 years. He earns $16.31 per hour, working full-time. He normally works from 8:30 a.m. to 5:30 p.m., Monday to Thursday, and till 9 p.m. on Fridays. Mr. Vandermeer had been part of the organizing campaign to bring in the union because at that time he felt that Mr. Howarth Sr. was causing a stressful atmosphere in the store, as a result of his confrontations and "blow-ups" with the staff. According to Mr. Vandermeer, Mr. Howarth Sr. is a tough man to deal with, a shrewd businessman and a hard negotiator who would not give in easily to union proposals. He was an intimidating owner and manager.

23. Within four to six weeks of the strike commencing, Mr. Vandermeer was aware of the fears, among those who had crossed the picket line, that the store may close. He recounted that Mr. Schramn would come up to groups of employees and say that they were doing the best they could to keep the store open, and that if the staff kept going and kept the store losses down, the chances looked good for remaining open. Mr. Vandermeer was working full-time during the strike, as were his two co-workers in the meat department. However, by January 1997 he noted that their volume of work was down by between one third and half of what it would have been at that time of the year, but for the strike. If the store had closed, Mr. Vandermeer would have had to sell his home and relocate to earn the income he was making at the Bancroft IGA. Ron Koppin testified that he had a personal concern as he was of the view that if the store closed, he would not be able to pay his mortgage.

24. The General Manager has no recollection of when he started to hear that there were rumours among the staff and some customers that the store would close because of the strike. Mr. Schramn also has no idea how this rumour got started. The employer had maintained the working hours of all full-time employees who had crossed the picket line and there had been no lay-offs. Part-time employees had seen their hours cut dramatically. Mr. Schramn admits however that the October 1996 leaflet advertisement which says the following could have come from Mr. Howarth Sr.:

We the employee's [sic] (your neighbours, relatives and friends) working inside the IGA and the management are asking for the support of our neighbours, friends and relatives in our community to help us by shopping our IGA so management is not forced to close the doors.

25. Mr. Schramn did not want to get into a propaganda war with the union once the strike commenced in October 1996. He realized that without discussions with him, Mr. Howarth Sr. was responding in the media to the union's literature but he never discussed this matter with Mr. Howarth Sr. He further admitted that he did not know who, besides Mr. Howarth Sr. or himself could have written the document in question. Mr. Schramn did not write it. The document was on IGA letterhead, using a font which was like that utilized on the computer in the store office, to which Mr. Howarth Sr. had open access. Mr. Schramn agreed that employees would have very limited access both to the letterhead and to the computer, although they may have access to the photocopier, which is not located in his office. As noted earlier, Mr. Howarth Sr. did not testify at these proceedings.

26. After the dissemination of the leaflet Mr. Schramn recalls holding meetings with the staff in late November or early December 1996, five or six employees at a time, to assure them that the store was not closing. One or two employees asked him what to do to get rid of the union, but he told them he was not meeting with them to discuss that but to address the employees' fear about store closure.

27. Prior to the strike Ms. Than cannot recall any staff meetings ever being held. During the strike Ms. Than can only recall this one meeting of staff with management but cannot recall precisely when it took place. She too recalls that there were rumours circulating in the store about a possible closing of the grocery store. Thereafter, in mid-December 1996, Ms. Than believes groups of six to eight employees at a time were asked to go in to meet with Bud Schrasnn. She believes that Mr. Schramn was trying to ease the minds of the employees who had crossed the picket line.

28. According to Ms. Than, while she cannot recall who first mentioned the term "decertifica­tion" after the meetings with Mr. Schramn had been held, around Christmas 1996 the employees began to discuss how they could get rid of the union. These groups congregating around the coffee pot would be of between 8 and 20 people at a time, and could include both department managers and management personnel or have management personnel standing within earshot. Ms. Than was of the view that since the union had been certified things with Mr. Howarth Sr. had got worse. There was tension in the store, there had been one strike already, and now a second was in progress, and Mr. Howarth Sr. did not work well with the union. Unlike Ms. Than, Mr. Vandermeer's recollection is that prior to Christmas 1996 there were discussions among the staff about how they could get rid of the union. Like Ms. Than, Mr. Vandermeer just cannot recall who came up with the word "decertification" and how it came to be used by the group of three employees who decided to pursue this matter. For some unexplained reason, the idea was put on hold in December.

29. The idea of decertifying solidified when Mr. Koppin claims he spoke to a truck driver who had successfully decertifled the union in his workplace. At some point in December 1996 or January 1997 the driver told Mr. Koppin that it was easy to decertify a union as all one had to do was to collect names on a petition. In the middle of January Mr. Koppin and the applicants decided to take some action on this idea. He has no idea why this was the time at which they were galvanized into action, but says the idea got a "life of its own" at that point.

30. There were no negotiations between October and the end of December 1996. Following the Board's decision of late December, the union offered to bargain on January 2, 3 and 4, 1997. On January 2, 1997 Mr. Howarth Sr. met with the union to bargain, and for the first time since negotiations had begun, he had Mr. Schramn involved in the negotiations. The parties, with the assistance of a provincial mediator, reviewed and signed off on what had already previously been agreed to because Mr. Howarth Sr. wanted to put everything on the record. Beyond that nothing was accomplished on the first day. On January 3 the parties and the provincial mediator met again and the union put on the table what the four important issues for it were. At the end of the day there had been no movement, and Mr. Fuller was of the view that the employer was wasting time to get to the open period. The negotiations for January 4 were cancelled.

31. According to Mr. Schramn, when there was seemingly no progress being made in negotia­tions by December 1996, he became more vocal and indicated that dates should be set for negotiations. After the January negotiation days, he told Mr. Howarth Sr. that he should back away and that Mr. Schramn should take over negotiations as he was of the view that there was a personality conflict between Messrs. Howarth Sr. and Fuller. Mr. Schramn indicated in his testimony that he believed the union did not want to reach an agreement on January 2, 1997. However in cross-examination he admitted that the union had brought the mediator to those sessions to attempt to broker a settlement, that the union had agreed to withdraw ten of its proposals, that it had told the employer the four key areas of concern for the union members, and that if those could be resolved then it may be possible to resolve the strike. He also admitted that after he and Mr. Howarth Sr. had discussed the union's proposals, the employer did not budge on any of the union's areas of concern. Mr. Schramn agreed that on the second day of bargaining, January 3, not much progress was made, and that Mr. Fuller had indicated that the employer appeared to be surface bargaining. Mr. Schramn says he did not know what that meant.

32. On February 4, 1997 the mediator called the workplace parties together. On this occasion Mr. Schramn was there alone on the employer's side. He indicated to Mr. Fuller that he now had the authority to bargain for the employer, and that although he would not agree to anything in writing, in principle he would agree with the union, and would live up to the verbal agreements. Mr. Fuller indicated he could not go to the union bargaining committee without an agreement in writing as there would be no way to enforce a verbal agreement if Mr. Schramn left the Bancroft IGA. Mr. Fuller did not know what Mr. Schramn's position was in the store, other than that he was the General Manager. He had heard a rumour that Mr. Schramn may be the new owner, but he had no confirmation of this. No agreement was reached at this meeting and no further negotiations were held in February before the decertification application was filed.

33. At some time in January 1997 Mr. Howarth Sr. left the country for Florida and Mr. Schramn was in control of the Bancroft IGA. When he took over negotiations he was aware that the union had contempt proceedings, an unfair labour practice complaint, and a consent to prosecute application outstanding against the employer. While Mr. Schramn seemed unable to tell the Board when in January Mr. Howarth Sr. left Canada, he assumed that Mr. Howarth Sr. must still have been in Bancroft on January 13, 1997, when Mr. Howarth Sr. apparently ran another advertisement in the local newspaper castigating the union and seeking public support for the store. He believed Mr. Howarth Sr. may have been back in Bancroft on January 19, as he recalls that Mr. Howarth Sr. was flying back and forth from Florida at that time.

34. Jason Boomhouer had worked part-time at the Bancroft IGA for three years from 1989 to 1993. He continues to live in Bancroft and therefore sees his former co-workers around the town regularly. Jerry Michael Howarth, Mr. Howarth Sr.'s son, is his next door neighbour so he sees Mr. Howarth Jr. as well.

35. On January 10, 1997 Mr. Boomhouer was having his hair cut at Gary & Di's Hairdressing Salon in Bancroft when he saw that Mr. Howarth Jr. was also in the salon. Mr. Boomhouer recalls the date precisely because he had bought a car on January 9, 1997, and his brother had brought it from Hamilton for him to pick up in Lakefield. Mr. Boomhouer had his back to Mr. Howarth Jr., but heard him speaking to one of the stylists. The stylist asked Mr. Howarth Jr. how the store was doing. Mr. Howarth Jr. said that his dad had a trick up his sleeve, that they were hiring new staff and would get the union out of the store. The stylist indicated that he thought the union looked pretty stupid walking up and down the sidewalk in the cold weather. Mr. Howarth Jr. told the stylist that they now had a lawyer in Ottawa. He then caught sight of Mr. Boomhouer in the mirror, their eyes met, and he stopped talking about this matter. The men began to talk about snowmobiling. Mr. Boomhouer left about 15 minutes later.

36. Counsel for the employer got Mr. Boomhouer to admit that he quit work at the Bancroft IGA in 1993 because he was accused of the theft of a flower, and that he had had other troubles with the law. However, Mr. Chandon did not establish any reason why Mr. Boomhouer, who had not worked at the store in over three years at the time of this incident, would have any reason to make up such a story. Mr. Jerry Michael Howarth, Jr. did not testify.

37. On January 13, 1997 the employer ran an advertisement in the Bancroft Times, the local newspaper. In an open letter to the customers of the Bancroft IGA it would appear that Mr. Howarth Sr. (speaking in the first person) made a number of negative comments about the union, Mr. John Fuller, and the people on the picket line. The union's negotiating stance was discussed in a derogatory manner. Mr. Howarth suggested that he was trying to provide jobs, and the suggestion was made that if the employees on strike did not like his store, they could quit and go and work somewhere else.

38. Mr. Vandermeer testified that this advertisement was a major topic of conversation among the employees in the store. Of special interest was that the advertisement disclosed that the employees on the picket line were being paid the equivalent of their regular wages by the union. Mr. Vandermeer and his co-workers concluded that it seemed as though Mr. Howarth Sr. and Mr. Fuller were not seeing eye to eye, and the strike had been going on for two months.

39. During the course of this last set of negotiations Mr. Vandermeer was aware of what was going on in negotiations from Mr. Schramn, the General Manager. At some point in the bargaining he was told by Mr. Schramn that Mr. Howarth was taking a back seat in negotiations, and that Mr. Schramn was in charge of the bargaining. Mr. Vandermeer was aware that negotiations between the union and the employer did not go well between the time of the employer's advertisement, January 13, 1996, and early February. He was having discussions with Mr. Schramn, who was to his knowledge, at that point, the chief negotiator for the employer. Mr. Schramn told him there were stumbling blocks in the negotiations, and that he did not know how long it would go on. He told Mr. Vandermeer that he would try to keep the store open as long as it was possible to do so, but he had no idea how long that would be. Mr. Vandermeer testified that he was told this week to week, and month to month during the strike.

40. On January 21, 1997 the employees of the Bancroft IGA who had crossed the picket line ran an advertisement in the Bancroft Times. Ms. Than felt that since the picketers had been handing out literature to the public, the employees inside the store should say something too. The content of the advertisement was arrived at as a result of Ms. Thain's efforts, and the style was much the same as the employer's open letter to the public, published one week earlier. She put a book in the Bakery department and invited anyone who wanted to, to come and write in what they would like to see in the advertisement. Ten or twelve people contributed to the book, which sat out in the open on the bakery table for a day and a half. Ms. Thain typed the final version, and showed it to Mr. Schrainn before taking it into the newspaper offices. To her knowledge, other management staff, along with staff, may also have read the final draft.

41. She indicated that the text of the open letter is a defence of Mr. Howarth Sr., and that some of the information had come to employees through Mr. Schramn and Mr. Howarth Sr., who had spoken to Mr. Vandermeer. It would appear that Mr. Vandermeer had learned from Mr. Howarth Sr. about the employer's pension proposal made at the bargaining table, and had then gone to the staff and polled them for the employer about whether they would like the employer proposal.

42. There was no discussion with anyone about how the advertisement would be paid for. At the Bancroft Times Ms. Thain was told the advertisement would cost about $250. She takes home $300 a week for her wages. Ms. Than did not pay for the advertisement at that time. The bill was later sent to the employer.

43. Although Mr. Schramn says he had no part in the creation of the employee letter published in the newspaper on January 21, 1997, he admits he was given a copy by Ms. Thain to proofread before it was taken to the printer. He believes he was shown the draft because the employees did not want to say anything which would upset management. Mr. Schramn also admitted the employer paid for the advertisement because the bill was sent to the Bancroft IGA. He directed that the bookkeeper take the money to pay the bill out of the coffee money, wherein he claims that by February 1997 there was about $300. Contrary to Ms. Than's evidence that Mr. Schramn told her the employer was paying the bill for the advertisement, initially Mr. Schramn testified that he did not discuss the issue of the bill payment with Ms. Than, or the other employees who had paid $1 per day into the coffee fund. However, later in cross-examination he changed his evidence and said he had told Ms. Than the employer would pay the bill.

44. Mr. Fuller received the Bancroft Times January 21, 1997 edition and saw the employees' open letter to the community. He testified that the union did not give the strikers the detailed information about negotiations which is reflected in the advertisement. The union had no contact at all with those crossing the picket line, so whatever information those employees had, they were not getting from the union. He was of the view that someone in management, from the employer bargaining team, had to have disclosed to the authors of the advertisement some of the intimate details of the negotiations.

45. Mr. Vandermeer was one of the employees involved in drafting the material for the January 21, 1997 advertisement run by the employees of the store who had crossed the picket line. He indicated that Mr. Schramn and Mr. Howarth Sr. would tell him what was happening in negotiations because he would ask them. Regarding the issue of the pension plan, Mr. Howarth Sr. indicated to Mr. Vandermeer that he had better options than what the union was suggesting, and told Mr. Vandermeer what those options were. Mr. Vandermeer then canvassed the employees in the store about their preferences, and relayed the results to Mr. Howarth Sr.

46. Being the grocery department manager, Mr. Koppin stated he is looked upon as a leader in the store, so he took it upon himself to get the decertification started. He was very vague about how he first got Mr. Chandon's telephone number (counsel for the Bancroft IGA). At first he claimed it had been on Board postings around the store. Then he claimed that as he had some access to the management offices, and others did not, that he may have slipped into Mr. Howarth Sr.'s office and got the number from his desk. However, he was adamant that he did not speak to management to get the phone number. He admits there were no meetings held wherein store staff decided that he, or the applicants, should spearhead this campaign.

47. In the middle of January 1997 Mr. Koppin called Mr. Chandon and explained that he wanted to decertify the union at the Bancroft IGA. He was advised that Mr. Chandon, as the employer's counsel, could not assist him. Mr. Chandon gave Mr. Koppin a telephone number for Mr. Sevigny, a lawyer based in Ottawa. After a number of phone calls back and forth, Mr. Koppin was able to connect with Mr. Sevigny. Mr. Koppin made all his phone calls to the lawyer from his home, and had Mr. Sevigny call him back at home.

48. According to Mr. Koppin, Mr. Sevigny sent a number of copies of the petition to Mr. Koppin's home with a cover letter. After Mr. Koppin got the petitions sent to him, he showed them to Ms. Than and Mr. Vandermeer, who he had decided could be trusted to participate in the decertification. He never told anyone else what he was doing. As Mr. Vandermeer had some concerns about the petitions, Mr. Koppin arranged a meeting with Mr. Sevigny in Bancroft. The meeting involved Messrs. Sevigny, Vandermeer, and Koppin, and Ms. Than. Following that meeting Mr. Koppin says he dropped out of the process and was no longer involved because of a concern that Mr. Koppin may be perceived of as management. As subsequent events suggest, Mr. Koppin did not in fact "drop out of the process" at all.

49. Once Mr. Koppin made contact with Mr. Sevigny, Mr. Vandermeer was surprised at how quickly the termination process was put in motion. He had expected that he and Mr. Koppin would meet with a lawyer, but Mr. Koppin went ahead without consulting Mr. Vandermeer. Like Ms. Than, Mr. Vandermeer claimed at first that he could not recall when the meeting with Mr. Sevigny took place. However, Mr. Vandermeer later indicated that the meeting took place on February 20, 1997. At that meeting at Mr. Vandermeer's home, they decided that Mr. Koppin should bow out of the decertification process because he might be perceived of as a part of management. (Like Ms. Than, Mr. Vandermeer indicated that Mr. Koppin is in charge of the grocery store on some Sundays.) Mr. Vandermeer's recollection, contrary to Mr. Koppin's testimony, is that Mr. Sevigny brought the petitions to the meeting and gave them to the applicants.

50. At no point can Mr. Koppin ever recal] actually retaining Mr. Sevigny as his lawyer, or as the lawyer for the applicants. He says they "never really hired him". He is not sure how it is that Mr. Sevigny is acting for the applicants at this hearing as he is not aware of any of the applicants having hired Mr. Sevigny. He never gave a thought to who will be responsible for paying for Mr. Sevigny's services and he cannot recall any discussions with Mr. Sevigny at any point about payment for the decertification application. He has never been asked by Mr. Vandermeer, or anyone else, to share in paying for the cost of this application.

51. Mr. Vandermeer says he knows what Mr. Sevigny's hourly rate is, and that he was told that rate in Ms. Than's presence at the meeting. Interestingly, Ms. Than claims she knows nothing about what the cost of this litigation could be. Mr. Vandermeer has not signed a retainer for Mr. Sevigny's services, and has never sent or received any correspondence from Mr. Sevigny. He has made phone calls to Mr. Sevigny both from the Bancroft IGA office, and from his home.

52. Ms. Than has never received a letter confirming any client relationship with Mr. Sevigny's law firm in Ottawa, Burke Robertson. At the meeting at Mr. Vandermeer's home, Mr. Sevigny indicated that the applicants could deal with the issue of payment for his services at the end. Ms. Than has never been to Mr. Sevigny's office, and has never mailed or faxed anything to him or received any correspondence from him. In August 1997, just prior to the commencement of this hearing, Ms. Thain called Mr. Sevigny for the first time when she received a summons from the union. She has no idea what the cost of this litigation may be and indicated that the applicants had not received any interim bills from Mr. Sevigny although since the commencement of this matter there had been legal services rendered for the filing of the application, and attendance of counsel at hearings in Toronto since March

54. Ms. Thain states that a number of employees had indicated to her that they would help to pay for the costs of the application. This matter arose early on in the discussions at coffee and lunch time as some employees asked how they were going to pay for the decertification. No funds have ever been collected or pledged, and there has been no further discussion about payment of legal fees since May 1, 1997, when the strike ended. With respect to the legal cost of the termination application, Mr. Vandermeer told employees he did not know what the final cost of the application would be, but that he would find out at the end of the process. He never asked any employee for a contribution towards the legal costs, although some employees offered to help to defray the costs. He has seen no interim bill from Mr. Sevigny regarding this proceeding.

55. Ms. Than was asked about who was paying for her attendance at the hearing into this matter and indicated that she is taking banked days off. She claims she is paying for her own hotel room, which costs $112.00 per night, and for her meals. Her co-applicant, Mr. Vandermeer, is paying for the gas for the drive from Bancroft, for parking, meals, and for his own hotel room, at the same rate of $112 per night. By August 1997, when Ms. Than was testifying, she had still not paid off her credit card bill for the hotel charges for the first set of hearing days in March.

56. Mr. Vandermeer was asked if he was expecting anyone to reimburse him for the costs of this proceeding and his travel down to the hearing days. Mr. Vandermeer indicated he did not expect to be reimbursed. On August 26, 1997 he was nevertheless able to produce his gas receipts from March 1997, and his hotel receipts for the hearings held in that month. He could not explain why he was keeping these receipts.

57. The day after the meeting with Mr. Sevigny, Ms. Than told her co-workers in the store about the meeting, and began to collect signatures on the petition. Ms. Than met with most of the employees she signed up individually. She told them she needed a number of signatures to see if there was enough interest in decertifying the union, and explained to them what Mr. Sevigny had told her. To her mind the meeting with Mr. Sevigny was not meant to have been a confidential one. When having her discussions with the employees Ms. Than cannot be certain that no management personnel were around. She claims she tried to do most of the petition signing on her breaks and lunch hours. Only one or two signatures collected by her were apparently done during working time. Ms. Than would call employees into the Bakery area where she worked and talk to them there while on her lunch hour. Only one employee who Ms. Than approached refused to sign the petition. Once the petitions were signed, Ms. Than gave them to Mr. Koppin, who she assumes sent them on to Mr. Sevigny. She never told other employees that Mr. Koppin was involved in the campaign, or would see the petitions, but did tell potential petitioners that no management persons would know who had or had not signed.

58. Debbie Bowers, another store employee, also collected signatures for the petition. Ms. Bowers did not testify at these proceedings. Interestingly, although Ms. Thain was one of the organizers of the termination application, she did not know how many employees were in the bargaining unit when she began to circulate the petition for this application. Mr. Vandermeer collected signatures on the petitions, and anyone he asked agreed to sign. He gave his petitions either to Ms. Thain, or directly to Mr. Koppin, who he believed couriered all of the petitions to Mr. Sevigny's office in Ottawa. Mr. Vandermeer can only recall that he told a few people that Mr. Koppin was involved in the termination campaign, and indicated that it was possible that some employees may have seen him give the petitions to Mr. Koppin.

59. Mr. Koppin had a list of all of the employees in the store, he collected the petitions from the applicants and Debbie Bowers, and later couriered them to Mr. Sevigny. He was given the petitions at the store. Mr. Koppin and Mr. Mountney, the Store Manager, share a desk in the upstairs office. Mr. Koppin never had any further contact with Mr. Sevigny. It took the applicants about five or six days to collect the signatures, which Mr. Koppin then sent off immediately. The termination application was filed promptly thereafter by Mr. Sevigny on February 27, 1997, and received at the Board the day after.

60. Once the Labour Relations Board had set a vote date, Ms. Than went around to tell people of what the vote was for, and when and where it would be held. On the day of the vote, held at the Sword Inn approximately .5 kilometres away from the store, a shuttle service was set up to take employees to and from the poll. Ms. Thain has no idea who set up this service for employees, but is aware that Messrs. Maloney and Koppin, along with a cashier, ferried people back and forth. Mr. Koppin drove employees in the General Manager's truck.

61. On the day of the decertification vote Mr. Koppin was scheduled to work from 7 a.m. to 4 p.m. During his work time he went into Mr. Schramn's office, got Mr. Schramn's vehicle keys, and went to pick up a part-time student to take him to the vote. The drive took between a half hour and 40 minutes. Mr. Schramn had told Mr. Koppin previously that he could use the vehicle whenever he wanted so long as it was back when Mr. Schramn was ready to leave the store. Mr. Schramn testified that he knew that his vehicle was borrowed that day as he recalls that Mr. Koppin asked him if he could use it and he agreed. This is contrary to Mr. Koppin's evidence that he simply took the keys for the vehicle without Mr. Schramn's knowledge. Mr. Schramn claims he did not know what the truck was borrowed for. He asked no questions.

62. Mr. Koppin had told the part-time employee that he needed the employee's vote, and would arrange to have get him into town. Mr. Koppin is the employee's immediate supervisor. He took the employee into the Sword Inn, where the vote was being held, waited in the hallway for him, and then took him back to the grocery store at about 4:30 or 5 p.m. Before returning Mr. Schramn's vehicle, Mr. Koppin did not worry about refilling it with gas.

63. Mr. Koppin had got the phone numbers of most of the store employees from the employer's records which are kept in his office area. He had personally spoken to each of the five part-time grocery clerks under his supervision and had told them he wanted them to get out and vote. He told them if they had any trouble getting in to do so, he would take care of them.

64. According to Mr. Koppin, and contrary to Ms. Than's evidence, Mr. Koppin and Ms. Thain had set up a system for ensuring that employees would get to the polling station. Mr. Koppin had to stay near the phone during the voting hours so that if Ms. Than called with the name of an employee who had not yet voted, he would phone the individual and get them to go and vote. The applicants and Mr. Koppin had a list of the store employees from which they worked.

65. On the day of the termination vote Mr. Vandermeer was supposed to work from 8:30 a.m. to 5:30 p.m. However, he clocked out at 3 p.m., and claims he made up the time lost at some other point. Ms. Than and Mr. Vandermeer believe that the vote was held from 3 to 6 p.m. (According to the Board's records and the testimony of the union's scrutineer, the vote was held between 3:30 and 6:30 p.m.) He was the scrutineer for the applicants. Like Ms. Thain, Mr. Vandermeer says he was not involved in setting up the transportation system for employees to and from the poll. He concedes he did discuss with Harold Maloney the possibility of providing transportation for the part-time students who work at the store. The vote site was only two blocks from the store, but Mr. Vandermeer does not think any employees had to walk to the poll.

66. After the vote had been held and the poll closed, when the Board Returning Officer handed out envelopes with the vote reports for each of the parties, he gave one to Mr. Vandermeer to give to Mr. Sevigny. However, Mr. Vandermeer had no idea who Mr. Sevigny was, until Gail Lyle, the union scrutineer, told Mr. Vandermeer that Mr. Sevigny was apparently the applicants' lawyer. At the hearing Mr. Vandermeer suggested he had just forgotten his counsel's name that day.

67. Shortly after the poll closed both applicants recall that they returned to the store and were let in by Mr. Ed Sturgeon, the employer's scrutineer, who was also returning from the vote. They came to the store to meet with Mr. Koppin, and to a place where they claim they were comfortable and would be private. Mr. Koppin had finished work much earlier but waited until after the store was closed for the applicants to arrive. The three people went to the Bakery area, spread out their respective lists, and discussed voter turn-out. Having compared lists they felt good about how the vote had gone and believed that the majority of employees they were interested in had voted. Mr. Vandermeer claims he did not see Mr. Schramn in the store until 15 or 20 minutes after the applicants returned into the store. He also saw Mr. Mountney at the store and told him the vote had gone well and that there had been a good turn-out. Mr. Koppin left the store about one hour later, and Ms. Than left the store at around 8 p.m.

68. Following the poll closing, and contrary to the evidence of the applicants, Mr. Schramn testified that he was near the front door when Mr. Vandermeer and Ms. Thain returned to the store at some time after 6 p.m. He believes he either let them into the store, or that the door was still open. They told him they were there to meet with Mr. Koppin. It would not have been typical for employees to come to the store after the store was closed as, to deter theft, it is standard grocery industry policy not to allow employees into the store after closing. Mr. Schramn was of the view that since these two employees wanted to see Mr. Koppin, and since Mr. Schramn was himself present, that they could come in. He could not imagine what Mr. Koppin would still be working at 45 minutes after the store was closed. Mr. Schramn testified that he went to clean out the back room as he was expecting a shipment of an order that night.

69. After meeting with Ms. Thain and Mr. Koppin, Mr. Vandermeer went by Mr. Schramn's office and discussed the termination vote with him. He told him about the voter turn-out, and that there had been two part-time employees who had not come out to vote but who had been working in the store during the strike and on the day of the vote. He told Mr. Schramn the identity of the two individuals. Mr. Vandermeer informed Mr. Schramn that the applicants felt good about the voter turn-out and felt that they had obtained a majority vote.

70. Mr. Schramn does not recall whether Mr. Vandermeer came to his office to talk to him about the vote, or whether he spoke to Mr. Vandermeer at the coffee area. In any event, he cannot recall what they talked about. He admits he was curious about the voter turn-out, and agrees that Mr. Vandermeer may have told him about the part-time employees who did not vote. It is unclear why he would need Mr. Vandermeer to tell him about the voter turn-out since Mr. Sturgeon, his Assistant, had been the employer's scrutineer at the vote, and had also returned to the store following the vote. Mr. Schramn agreed that Mr. Vandermeer appeared to want Mr. Schramn to know how the vote had gone. He had no idea how long the applicants and Mr. Koppin remained in the store. He went home for dinner and when he returned they were gone, but Mr. Sturgeon was still there.

71. Gail Lyle is a part-time cashier at the Bancroft IGA who has worked there for eight years. She was on the union negotiating committee in the last round of negotiations and was on the picket line during the strike. On the day of the termination vote Ms. Lyle observed that there was more staffing of the store than was normal for a Tuesday. On a regular Tuesday there would have been between two and three persons on cash. However, on the date of the vote there were between four and six cashiers at the store. Ms. Lyle observed them going into the store in their uniforms. Mr. Chandon suggested to Ms. Lyle that it was possible that the cashiers were going into the store for a staff meeting. While she agreed that she had no idea what they were going into the store for, Ms. Lyle testified that in her eight years at the store, there has never been a staff meeting requiring the presence of all cashiers.

72. On the day of the termination vote, March 11, 1997, Mr. Schramn claims there was only one more employee than usual scheduled for a Tuesday. Looking at a six week time frame spanning the period before and after the vote Tuesday, Mr. Schramn indicated that there were between 25 and 26 employees scheduled on each Tuesday. He could not however adequately explain why the employees who were scheduled had worked unusual hours on that day. The union cross-examined Mr. Schramn on some examples of cashiers and others who worked that day. It would appear from the employer's records for the week ending March 15, 1997, that Wendy Hem was scheduled to work till 1:30 p.m. every day except on March 11th, when she was scheduled to work until 3:30 p.m. which was when the vote commenced. In the week previous, Ms. Hem had been scheduled to work every day until 1:30 p.m. Mr. Schramn testified that he did not know why Ms. Hem had been scheduled in this manner, but indicated she was being trained during that time period. It is unclear what Ms. Hem was being trained on as, according to the seniority list, she has been working for the employer since October 16, 1987, and is listed as a cashier.

73. Denise Lalonde was scheduled to work every Tuesday until 1:30 p.m. However, on the day of the vote she was scheduled to work until 3:30 p.m. The following Tuesday, Ms. Lalonde was again only scheduled till 1:30 p.m. The same occurred with respect to Barbara Carr. Lisa Parks was never scheduled on a Tuesday in the five weeks of schedules produced by the employer. However, on the date of the vote, Tuesday March 11, she was scheduled to work. In the week following, Ms. Parks was not scheduled on Tuesday. Mr. Schramn's explanation was that there was an employee on vacation that week. It is unclear why, if one employee was on vacation that week, so many people had to work extra time on the same day of the week. Joanne Trotter is off every Tuesday, however on the day of the vote she worked from 1:30 to 6 p.m. Danielle Gorgerat is always off on Tuesdays, but on that Tuesday she worked. Mr. Schramn suggested that shifts may have been changed to meet employee requests.

74. In the meat department Kevin Woodcox was scheduled to work on the Tuesday even though he never usually works on Tuesdays. Mr. Schramn suggested this may have been because Mr. Vandermeer, who also works in the meat department, was off that day. However, Mr. Vandermeer testified that he worked on the day of the vote.

75. In the bakery department Mahogony Boyle was scheduled to work although she never worked on Tuesdays. Mr. Schramn indicated that Allyssa Miles was off work that day so that Ms. Boyle would have been scheduled. This is at odds with the schedules of employees which the employer had provided to the Board with its response to the termination application: In the Board's review of Schedule "C" of the lists the employer provided, it indicates that Ms. Miles had been laid off for lack of work on October 18, 1996 and that there was no known return to work date.

76. Doris Schenkel, a store clerk, never usually worked on a Tuesday, but worked on the Tuesday of the vote. Jacob Dahl, who worked as a store clerk in customer service, never usually worked on a Tuesday, but on that Tuesday was scheduled to work from 3:30 p.m. on. Mr. DahI voted at 3:35 p.m. Mr. Schramn had testified that no employees went to vote on work time. With respect to Mr. Dahl he could not explain how this employee could have got a break within five minutes of starting his shift.

77. Mr. Schramn testified that he had nothing to do with the scheduling of all of these people to work on the date of the termination vote. He indicated that the department managers must have done the scheduling. However, it had been Mr. Koppin's evidence that as the grocery department manager he did not control scheduling, but Mr. Sturgeon did. According to Mr. Koppin Mr. Ed Sturgeon, who is the Assistant Store Manager, a member of management, and was the employer's scrutineer at the vote, controls the scheduling of employees.

78. Mr. Schramn testified that he was not aware of the termination campaign or application until he received a copy of the application. He states that he did not offer the applicants the name of a lawyer, or to assist Ms. Thain and Mr. Vandermeer in the filing of the application. When asked how it was that Ms. Than had said that everyone in the store knew about the campaign, but that he did not know, Mr. Schramn indicated that the campaign must have been kept a secret from him. He testified that employees cannot take their breaks or lunches on the retail floor. This is at odds with Ms. Than's evidence that she called employees into the Bakery on her breaks or lunches to sign the petition.

79. When questioned about his relationship with Mr. Vandermeer, Mr. Schramn indicated it was a normal working relationship. However he indicated that when Mr. Vandermeer asked him about negotiations and matters being dealt with at the Board, he would tell him what was happening. On December 4, 1996 Mr. Vandermeer asked Mr. Schramn what was stalling the negotiations and was told that the union was stalling. (This was based on information Mr. Schramn had received from Mr. Howarth Sr. as Mr. Schramn was not himself attending the negotiations at that time.) Mr. Vandermeer and Mr. Schramn then walked out to the picket line together and Mr. Vandermeer told one of the strikers that Mr. Schramn was ready to negotiate any time the strikers wanted. Mr. Schramn told the picketers that the union was refusing to negotiate. The strikers questioned Mr. Schramn's authority to negotiate, but told Mr. Schramn that he should speak to Mr. Fuller. Mr. Schramn told the picketers he was capable of bargaining, and he and Mr. Vandermeer then returned into the store. Mr. Schramn suggests that it was just coincidental that he and Mr. Vandermeer went out to speak to the picketers.

80. With respect to Mr. Vandermeer having been the witness for Mr. Schramn's posting of the Board's notices in December 1996, Mr. Schramn said coincidentally he had been the employee at hand, and had therefore signed the posting. He confirmed that the employer had made no other postings in the workplace previously, and that Mr. Chandon's name was not on the December posting. He could not recall when Mr. Chandon had become involved in the Board matters for the employer. This evidence confirms that Mr. Koppin could not have got Mr. Chandon's phone number from the Board postings in December 1996 or January 1997.

81. When asked about Mr. Vandermeer's apparently free access to the General Manager's office, Mr. Schramn indicated other employees also had access to it: Mike Klein used the telephone to place his milk orders; Jerry Michael Howarth and Harold Maloney also used it to place orders. Mr. Schramn confirmed that Mr. Koppin had been very fearful of going to the General Manager's office because he had been intimidated in the past by Mr. Howarth Sr. He did not explain how Mr. Vandermeer had been permitted to make personal long-distance calls from Mr. Schramn's office.

82. When asked about his ability to make long-distance telephone calls to Mr. Sevigny from the workplace, Mr. Vandermeer indicated that there was an open-door policy at the General Manager's office since Mr. Schramn took over, and that any employee can use the telephone in that office. Later in cross-examination Mr. Vandermeer retracted this latter comment and admitted that he had been told he could make phone calls from the General Manager's office, and that all employees were not told this. Mr. Vandermeer started to make calls to Mr. Sevigny around the time of the filing of the termination application, and continued to make them in the months after the filing. He would go into the office and indicate to Mr. Schramn that he had a personal call to make, at which point Mr. Schramn would leave to allow him to use the office to call Mr. Sevigny. On at least one occasion Mr. Vandermeer told Mr. Schramn he wanted to call the lawyer, and Mr. Schramn permitted him to do so. Mr. Vandermeer has never been asked to reimburse the employer for the long-distance calls he made during the store's business hours. At any time after the filing of the application, if a question came up, Mr. Vandermeer would go to the office and call Mr. Sevigny for clarification. Mr. Sevigny would call Mr. Vandermeer back at the store, and Mr. Vandermeer would take those calls either in Mr. Schramn's office, or in the upstairs office of Mr. Mountney, Mr. Koppin, and the bookkeeper. On one or two occasions Mr. Vandermeer told his co-workers that he was calling Mr. Sevigny from the store. A number of the calls were made during Mr. Vandermeer's working hours, while others were made while he was on his breaks.

83. Unlike Mr. Vandermeer, Mr. Koppin indicated that staff could not just go into the General Manager's office and make long-distance phone calls. He indicated that staff were afraid of Mr. Howarth Sr. and since Mr. Schramn and Mr. Howarth Sr. shared an office in January 1997, employees would not believe it was acceptable to just walk into the General Manager's office to use the telephone. Even under Mr. Schramn, Mr. Koppin was of the view that employees could not take such liberties.

84. Prior to the strike commencing Ms. Lyle was never permitted access to the General Manager's office to make a phone call. Staff were told to use the pay phone in the lobby of the store. To her knowledge, even after the strike was over, no employees could use the General Manager's office telephone. Further, no person who was on the picket line has ever been allowed to drive Mr. Schramn's truck.

85. In February 1997 Mr. Schramn recognized that Mr. Fuller was not confident that Mr. Schramn had the authority to negotiate for the employer. At that point, although he did not tell Mr. Fuller this, Mr. Schramn was the President of a numbered company which had an interest in the store and Mr. Howarth Sr. was still the President of Banlake Associates, which owned the store. Mr. Howarth Sr. had financed Mr. Schramn's company's purchase of the Bancroft IGA. Mr. Schramn therefore asked Mr. Howarth Sr., who was in Florida, to write a letter confirming that Mr. Schramn had negotiating authority. This was done on February 11, 1997, and faxed to the union and the conciliation officer. On February 12, 1997 the union responded, indicating it was ready to meet any time, and reiterated that the services of a mediator were available to the parties. No negotiations in fact occurred until April, after the termination application and vote had been held.

86. After the vote had been held in the decertification application Mr. Fuller heard that Mr. Chandon was now going to be negotiating for the employer, along with Mr. Schramn. However, dates for negotiations were not set until April, when the parties met on four occasions and reached a memorandum of agreement. Mr. Howarth Sr. never returned to the negotiations after January. In April a deal was reached on the four key items the union had identified back in January 1997. In Mr. Fuller's view, the employer simply did not want to reach a deal in January, but by April, the termination vote had been held, the summer busy season was approaching, and the employer did not want the strike carrying on once the seasonal shoppers arrived. A ratification vote was held on May 2, 1997 and a new collective agreement was ratified. Both the strikers and those who had crossed the picket line voted at that ratification meeting.

ARGUMENTS

86. It is suggested by the union that the termination applicants could not have been sophisticated enough as to have so skillfully applied for decertification using an unusual section of the Act. This application is not made under section 63, the general termination of bargaining rights provision, but under the more obscure section 67. Section 67(2)(a) of the Act, which applies in this instance, states:

87. (2) Where notice has been given under section 59 and the Minister has appointed a conciliation officer or a mediator, no application for certification of a bargaining agent of any of the employees in the bargaining units as defined in the collective agreement and no application for a declaration that the trade union that was a party to the collective agreement no longer represents the employees in the bargaining unit as defined in the agreement shall be made after the date when the agreement ceased to operate or the date when the Minister appointed a conciliation officer or a mediator, whichever is later, unless following the appointment of a conciliation officer or a mediator, if no collective agreement has been made,

(a) at least 12 months have elapsed from the date of the appointment of the conciliation officer or a mediator;

87. Given this relatively complex provision, the union asks how the applicants could have had knowledge of the date of the appointment of the conciliation officer, except through the employer? The union points out that the termination application was timely by four days, and that the termination applicants were successful in making their application on their first attempt. Only the union and the employer would have received a letter regarding the appointment of the conciliation officer. The conciliation officer was appointed on February 23, 1996. This application was filed on February 28, 1997.

88. Relying on the evidence the union also argues that the employer breached section 63(16) by its conduct from the summer of 1996 up until the initiation of the termination application, and by its actions leading up to the representation vote in the termination application on March 11, 1997. The union suggests that the employer created an environment in which it anathemized the union and then encouraged the initiation and support of an application to decertify the union.

89. The applicants argue that the union has not met the onus of establishing a breach of section 63(16) of the Act, and that the ballot box should therefore be opened and the ballots counted in this application. Counsel asks the Board not to draw the inferences from the evidence which the union has asked us to draw, but rather to simply accept at face value the evidence of Messrs. Vandermeer and Schramn and Ms. Than. Even if the Board finds that there was employer involvement in the initiation of the application, the applicants ask the Board to consider whether that was sufficient to prevent the employees from expressing their true wishes through the vote process. In their view it was not, and the votes should therefore be counted.

90. The employer argues that the "grand conspiracy" which the union is alleging in this application has to have a connection to the termination application. It argues that the union's case is circumstantial and that the Board should not accept the union's theory of what took place. In any event, the employer suggests that Mr. Schramn was not a part of the alleged employer course of conduct. The employer asks the Board to find that the evidence falls short of being conclusive that the management of the Bancroft IGA orchestrated this application, or that it acted in any way contrary to section 63(16).

DECISION

91. In this case, given that the union had made a number of allegations and had claimed that there had been breaches of section 63(16), the Board held a representation vote in the termination application, but sealed the ballot box. The union alleges that there has been a concerted effort made by the employer to initiate and direct the co-ordination of an application for the termination of bargaining rights. Section 63 of the Act is the general provision addressing applications for the termination of bargaining rights. Section 63(16) states:

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.

92. With the 1995 amendments to the Labour Relations Act, the Board is no longer required to conduct an inquiry into the voluntariness of an application for termination of bargaining rights prior to the taking of a representation vote. Similarly, the Board is not required to inquire into the inception of the petition signed by employees, or the circulation and handling of that petition prior to the application being made. However, where there are allegations made which engage section 63(16) of the Act, the Board must determine whether the evidence before it establishes that an employer or person acting on behalf of the employer initiated the application, or engaged in threats, coercion or intimidation in connection with the application. If the Board is satisfied that there has been such improper employer action, the Board has the discretion to dismiss the application. (See Elirpa Construction and Materials Limited, [1996] OLRB Rep. Jan. 4, at paras. 13 and 14).

93. In Bytown Electrical Services Ltd., [1996] OLRB Rep. Sept./Oct. 721, the Board reiterated that the voluntariness of the petition is no longer a crucial consideration in determining the validity of a termination petition. It went on to state that the onus is on the union to establish that the termination application has been initiated by an employer. In reaching its determination in respect of section 63(16), the Board stated it would consider the following:

94. ... 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.

95. 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 them 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?

96. 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.

97. In that case the Board assessed the credibility of the witnesses, evaluated the circumstantial evidence, and drew reasonable inferences from what was before it. The Board found that the owner of the company, whether advertently or inadvertently, had created a climate of antagonism among his employees against the union and had fostered a concern about job security; had, through insidious inducement undermined the presence of the union in the company; had changed the method of payment of some benefits so that he directly dealt with the employees rather than going through the bargaining agent; and had created an environment in which no credit for benefits could be given to the union. The Board found that the employer had "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" (see para. 110).

98. In Bytown the Board found that there had been a breach of section 63(16) of the Act, and went on to consider whether, in the exercise of its discretion, notwithstanding the employer's initiation of the application, the true wishes of the employees may yet be ascertained in a termination ballot. The Board found that it should dismiss the termination application, and stated that:

99. 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.

100. Launching of the termination application, especially signing of the petition by employees, was the focus of Tena quip Limited, [1997] OLRB Rep. July/August 742. While the Board relied upon Elirpa and Bytown (cited above), it also developed further the Board's approach in cases where the union has claimed a section 63(16) breach by an employer. Thus, at para. 19 of the decision in Tenaquip, the Board noted that an applicant in a termination application is no longer typically required to persuade the Board that employee perceptions of management involvement in the application have not undermined the voluntariness of the petition. Further, the Board will now be more concerned with actual, not perceived, employer involvement in termination applications. While the Board reiterated that the union bears the onus of proving that there has been improper employer action, it also noted the following:

22.... By its very nature, (the hopefully rare instances of) covert employer initiation of a termination application is unlikely to be an easy matter for a union to affirmatively and directly establish. And, while the onus is clearly upon the union, the Board does recognize that circumstantial evidence may be sufficient to lead to an inference of improper employer involvement. An employer who chooses to call no evidence in the face of such circumstantial evidence obviously does so at its peril.

97. In discussing the impropriety of employer involvement in termination applications, the Board noted:

98. This Board has historically been acutely sensitive to the delicate and responsive nature of the employment relationship. As the Board observed over four decades ago in the oft-cited case of Pigott Motors, 63 CLLC 16,264:

In view of the responsive nature of his relationship with his employer and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influence, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act.

27. The Board went on in that case to cite the concern and the fact that, in the Board's experience, employers in a "not inconsiderable number of cases" had improperly inhibited or interfered with the free exercise of employee rights as the basis for the Board's former practice of requiring applicants to establish the voluntariness of petitions.

28. Does the fact that the Board will no longer, as a matter of course, conduct an inquiry into the voluntariness of a petition, mean that all of the Board's historical concerns about the impropriety of employer involvement in termination applications have now completely dissipated? Clearly not. Such conduct may still amount to a violation of section 70 of the Act and improper employer involvement in a termination application may lead to the dismissal of the application under section 63(16).

29. In that case the Board found that the employer had breached section 63(16) of the Act. Factors the Board considered in reaching this decision were that the petitions were solicited during working hours and employees were summoned to leave their workplaces to attend at a boardroom for the purpose of having individual meetings with the applicants. While there was no direct evidence of employer involvement in the process, the Board drew a negative inference from the fact that the employer called no evidence even though two employees, seemingly without employer permission, had been able to use the employer's boardroom. Further, employees had been called off their jobs to come to the boardroom to sign petitions. The Board concluded that at a minimum the employer was aware of what was going on. While not prepared to conclude that employer knowledge was sufficient to ground a finding of employer initiation, the Board stated that it is necessary to consider not only the nature but also the likely effects of the employer's conduct, and the use and effect to which the employer's resources were put in furthering the application. The Board found:

30. The petitioners made use of company resources in such a fashion as would lead a dispassionate observer or a reasonable employee to conclude that the employer directly supported the application. In the absence of any evidence to the contrary, I too, am driven to such a conclusion. The petitioners' conduct was open and notorious. The employer permitted such conduct and must equally have known that a reasonable employee would have concluded that the petitioners' efforts had the explicit support of the employer. The employer's permission in these circumstances must, more likely than not, have been grounded in its conscious and deliberate wish that employees believe that the decertification application was supported by the employer.

31. The Board was of the view that based on the circumstantial evidence before it, there must have been active cooperation between the petitioners and the employer. The employer had permitted the petitioners' activities, had contributed resources, and through its cooperation with the petitioners, and toleration of their activities on company time, had communicated to employees that it supported the application. The Board found that the effect of these employer contributions at an early and formative stage in the application was both significant and influential in the initiation of the termination application.

32. A review of the evidence in the case before us suggests that there was a course of employer action which began in the summer of 1996 and culminated on the day the termination vote was held in March 1997. That course of action was designed to bring home to the Bancroft IGA employees that the employer was not pleased with the union. After the employees of the Bancroft IGA rejected the employer's final offer in May 1996, the employer unilaterally changed wage rates, pension contributions and the payment of union dues. In our view this was the first indication that summer to employees that the employer was contemptuous of their bargaining agent, the trade union. It would appear that many of the employees understood the tenor of the employer's behaviour, and those who had a personal friendship with Mr. Howarth Sr. picked up the gauntlet. Thus, as soon as a narrowly successful strike vote was taken in June 1996, Mr. Koppin and a number of other employees petitioned the union to hold another vote. This action in and of itself would be unremarkable. However, Mr. Koppin made sure he told Mr. Howarth Sr. about everyone who was opposing the strike vote by supplying Mr. Howarth Sr. with a list of the employees who had signed the petition. In doing so, Mr. Koppin freely used the employer facsimile machine and FAX cover sheets.

33. Although the trade union filed unfair labour practice complaints about the employer's actions, Mr. Howarth Sr. simply did not attend at either the Labour Relations Officer meeting or at the hearings before the Board, further showing his contempt for the union's efforts to protect the rights of the employees. Despite the Board's decision issued in September 1996 finding that the employer had breached the Act, the Bancroft IGA refused to comply with the Board's order. A legal strike commenced in October 1996.

34. It would appear that the employer issued a bulletin as soon as the strike began indicating that it needed the support of its various customers "so management is not forced to close the doors". On October 21, 1996, Mr. Howarth Sr. ran an advertisement in the local Bancroft newspaper identifying by name each employee of the store who had chosen to strike, and denigrating the union and its officials. As noted in the evidence outlined earlier, no bargaining was taking place. By December some employees who had crossed the picket line and were working in the store had become concerned that the store would close if the strike continued. Someone asked Mr. Schramn how they could get rid of the union, and the employees discussed this issue among themselves. However, nothing further came of those discussions.

35. It was only after the Board had issued a second decision ordering the parties to meet and bargain in good faith (December 23, 1996) that the employer appears to have understood that it was perilously close to being found in contempt and agreed to set some dates to bargain. However, when bargaining began on January 2 and 3, 1997, little was accomplished. Although the union had asked the Conciliation Officer to attend in the hope that he could facilitate and mediate the fractious relationship between the union and employer, Mr. Howarth Sr. took umbrage at the Officer's presence. Despite the union's efforts to concede in a number of areas, and to inform the employer of its four major areas of concern, the Bancroft IGA refused to move on any front. The union's view was that the employer was surface bargaining, and when viewed in relation to the rest of the employer's actions up to that point, that may have been a reasonable conclusion.

36. It is Mr. Boomhouer's uncontroverted evidence that on January 10, 1997, Mr. Howarth Sr.'s son told his hairdresser that his dad, the employer, had a trick up his sleeve, and that he was going to get rid of the union with the help of an Ottawa lawyer. Shortly thereafter the evidence is that Mr. Koppin called counsel for the employer and got a name of a lawyer in Ottawa to help with a decertification application. Mr. Sevigny then came from Ottawa to Bancroft and met with Messrs. Koppin and Vandermeer and Ms. Than. Mr. Koppin claims that Ms. Than and Mr. Vandermeer were chosen to attend this meeting as they were the ones he felt he could trust. It is unclear what he needed to trust them with as the applicants claim that the vast majority of the employees who had crossed the picket line were all in favour of decertifying the union. According to both of the applicants in this application, and Mr. Koppin, none of them has signed a retainer with Mr. Sevigny, the Ottawa lawyer acting for the employees in this proceeding. Mr. Koppin and Ms. Than do not even know what Mr. Sevigny's hourly rate is. None of them has seen a bill, or even an interim statement from Mr. Sevigny in the course of this long proceeding. The applicants have made no attempt to collect any pledges or money from any of their work colleagues to pay for this litigation. After the termination vote was held Mr. Vandermeer did not even recognize Mr. Sevigny's name until the union scrutineer reminded him that Mr. Sevigny was supposed to be the termination applicants' counsel.

37. It is particularly odd that although the applicants had apparently spent their own money in March 1997 to attend at a hearing in Toronto, and had incurred such costs that by August 1997 Ms. Than, who earns less than $10 per hour, had still not paid off her credit card balance resulting from that trip, the applicants had still not collected any money from their colleagues who they claim are supporting this application. Both Ms. Than and Mr. Vandermeer were able to produce all receipts for that visit to Toronto. Mr. Vandermeer had no explanation for why he had kept a gas receipt from that March 1997 trip to Toronto but he was able to produce it almost 6 months after the fact. It is implausible that if the applicants are acting on behalf of their fellow employees, and those persons had all agreed that they would jointly cover the costs of the decertification application, that they would not have taken up a collection and paid for their co-workers out-of-pocket expenses incurred to attend at the hearings regarding the termination application. Which leaves the Board with the question of who is paying for and supporting this application?

38. Neither Mr. Howarth Sr. nor Mr. Jerry Michael Howarth, his son, were called to testify so that we do not have the benefit of their evidence. All that we have before us is Mr. Boomhouer's evidence that he heard Jerry Michael Howarth say his dad had something up his sleeve and that they now had a lawyer in Ottawa to assist them in getting rid of the union. There is Ottawa counsel assisting the applicants in this termination application. Finally, there is no retainer with any employee applicant in this case, no applicant has paid any fees to that lawyer, the applicants have not corresponded with that lawyer, and they have not collected any money from their co-workers who are allegedly going to help pay for this litigation. The applicants are however studiously saving all of their receipts from their trips to Toronto. In light of these facts, and in the absence of any evidence to the contrary, we draw the inference that the employer, in the person of Mr. Howarth Sr., the ostensible owner of the Bancroft IGA during the material time, and/or the Bancroft IGA are financially supporting this termination application.

39. As was noted earlier, the union asks how the applicants could have had knowledge of the date of the appointment of the conciliation officer, except through the employer? The union points out that the termination application was made pursuant to section 67(2)(a) and was timely by four days. The applicants were not examined about their knowledge of this salient date, so that there is simply no evidence before the Board from which we can draw any conclusions or reasonable inferences.

40. On January 13, 1997 the employer ran another advertisement in the Bancroft newspaper demeaning the union's negotiation efforts and denigrating Mr. Fuller, the union's chief spokesperson. One week later, on January 21, 1997, after an open and notorious process of collecting information from both employees and management in the store, Ms. Thain also ran an advertisement in the Bancroft newspaper. However, before submitting the advertisement for printing she had Mr. Schramn approve the content. Although her advertisement was ostensibly from the employees who had crossed the picket line, the bill was sent to and paid for by the Bancroft IGA. Mr. Schramn indicated that the store paid for that advertisement out of coffee monies which had been collected in the store during the strike, and therefore he suggested that this was the employees' money. However, that is clearly not the case. The employer supplied coffee because it believed it was difficult for the workers to have to brave the picket line to go out for coffee during the strike, and the employees paid the employer for that coffee. It could hardly be described as the employees' money having been paid to the employer for the employer's coffee and supplies. It is unclear why Ms. Than would have spearheaded a movement to run the advertisement, find out it would cost between $250 and $300 to do so, and then have the employer pay for it. It is equally unclear why an employer would agree to pay this amount of money so that a bakery clerk could run an advertisement. Since Ms. Than never collected any money from her co-workers to pay for the advertisement, and Mr. Schramn subsequently told her the store was paying, the majority of the Board sees this incident as another example of the employer's assistance in the efforts of the applicants to create a climate of support for the termination application.

41. The manner in which the applicants collected signatures on the petition in support of the termination application suggests covert support by management for the application. The signatures were collected during working hours and while the store was in operation. Ms. Thain in particular appears to have sat in the Bakery of the store and called employees in from the floor to sign the petition. While she claims she was on breaks or lunches, as Mr. Schramn indicated in his evidence, staff are not supposed to take their breaks and lunches on the store floor. Further, even if she was on a break or lunch, all of the employees she called in were not similarly on breaks or lunches - otherwise they too could not have been present on the store floor. From the evidence given by the applicants it appeared clear that there was no stealth involved and that management would have been in a position to know what was going on. Indeed, Ms. Than honestly admitted that everyone knew what was happening. It is apparent to the majority of the Board that the employer took no steps to ensure that the termination applicants conducted their campaign in non-work time, thus giving its seal of approval to the campaign.

42. Mr. Koppin, who alleges that he was advised not to be an applicant because he may be perceived of as aligned with management, nonetheless maintained a pivotal role in the application. Mr. Koppin is the only department manager who has an office and is the person left in charge of the store when the rest of the management team is not in. The employees in the store were made aware that Mr. Koppin was involved. He got access to an employee list, collected the signed petitions, and then sent them on to Mr. Sevigny in Ottawa. While the applicants did not know when they had got more than 40% of the employees to sign the petitions, as required by the Act, Mr. Koppin apparently knew. Thus it would seem that Mr. Koppin, who had been quick to inform Mr. Howarth Sr. in the summer of 1996 about who had signed his petition at that time, was again and to the knowledge of the employees, put in charge of collecting all of the termination petitions. The inference to be drawn from these circum­stances is that the reasonable employee could have suspected that the knowledge of who was signing the petition would get back to the owners of the store.

43. The events of the date of the vote have been outlined in detail above. A synthesis of the evidence is that management of the store appears to have scheduled employees in such a way that many employees who would not normally have worked on that day, or around the time of the vote, were scheduled to work. Further, employees were taken during work hours to the polling place by Messrs. Maloney (a friend of Mr. Howarth Sr.) and Koppin. Mr. Koppin even used Mr. Schramn's vehicle during working hours to go and get an employee to ensure that employee, who was not scheduled to work, voted. The evidence suggests that the employer provided significant support for the termination application on the day of the vote.

44. In the aftermath of the vote the conduct of the applicants and Messrs. Schramn and Sturgeon is also indicative of the relationship between the termination applicants and management of the store. Mr. Schramn advised the Board that it is the practice in the retail food industry not to have employees in the store after it closes so as to ensure that theft is kept to a minimum. However, after the polls had closed either Mr. Schramn or Mr. Sturgeon, or both, let the applicants into the store. It is Mr. Schramn's evidence that he later went home and left them in the store on their own. It is inexplicable to the majority of the Board why these employees had to come back to the store to debrief, and why they were let in by management. The explanation that they were comfortable in the store and therefore returned there defies belief. Why did they not go to one of their three (including Mr. Koppin) respective homes for this purpose? Indeed, why were they not told by management to go somewhere else?

45. In our view, the answer to these questions lies in Mr. Vandermeer's conduct after the applicants and Mr. Koppin had gone over the employee lists to establish the voter turn-out. Mr. Vandermeer went to Mr. Schramn and told him that voter turn-out had been good as far as the applicants were concerned, that there had probably been a majority vote for the application, and he then told Mr. Schramn which two employees who had been working in the store had not attended to vote. The majority of the Board finds that this action is consistent with our view that the management of the store had been instrumental in the initiation and support of this termination application. In our view that is why Mr. Vandermeer felt he should report to the General Manager of the store how the vote had gone, and who had been the recalcitrant employees who had not attended even though they had been at work that day. After that report had been given Mr. Schramn went home for dinner, and when he came back to the store, the applicants and Mr. Koppin had left.

46. The final area of concern to the majority of the Board is the relationship between Messrs. Vandermeer, Howarth Sr. and Schramn which we have concluded also supports a finding that the employer initiated and supported this termination application. Although Mr. Vandermeer was not a part of management, even at the departmental level, Messrs. Howarth Sr. and Schramn appear to have told him a lot about what was going on between the employer and union at the bargaining table prior to the termination application being launched. At the behest of Mr. Howarth Sr. Mr. Vandermeer conducted a survey among the employees about the pension issue and subsequently, as a result of knowledge he had from Mr. Howarth Sr., Mr. Vandermeer contributed negotiation information to the advertisement Ms. Than penned. At the time of the filing of the termination application, and immediately after it was filed, Mr. Vandermeer was given notorious and liberal access to the General Manager's office. This is clearly a privilege not accorded to any other employees in the store. Mr. Vandermeer could come into Mr. Schranin's office and use his telephone to call the lawyer in Ottawa; he could accept calls from the Ottawa lawyer during work hours in the store; and when necessary, Mr. Vandermeer even asked Mr. Schramn to leave the office so the Mr. Vandermeer could call the lawyer in Ottawa. Even Mr. Koppin, who is a department manager, testified he did not have this level of access to the General Manager's office.

47. The majority of the Board's review of the evidence indicates that the employer's representa­tives and Mr. Vandermeer had a relationship which was known to the other employees by virtue of Mr. Vandermeer's polling of employees for Mr. Howarth Sr., by Mr. Vandermeer's ability to contribute information about the bargaining to the employee advertisement, and from the incident of Messrs. Schramn and Vandermeer going out to the picket line to talk to strikers. Mr. Vandermeer's uncommonly liberal access to the General Manager's office was yet another feature of his special relationship to the employer. In appears to us that a strong inference can be drawn from the fact that Mr. Vandermeer became one of the trusted two Mr. Koppin invited to have become the applicants, the lack of a retainer between the applicants and counsel representing them in this proceeding, the open and notorious relationship with management, and the reporting to Mr. Schramn of the turn-out for voting on the date the termination vote was held. In our view there appears to have been a relationship between the employer and Mr. Vandermeer pursuant to which he, along with Mr. Koppin and Ms. Thain, and with the support of the employer, initiated this termination application. We find that the applicants, and particularly Mr. Vandermeer, were acting on behalf of the employer in this regard.

48. In the jurisprudence outlined earlier the Board has considered the concept of "initiation" as including gradations of employer conduct in relation to a termination application, and in particular, whether the employer's conduct amounted to a significant or influential involvement giving rise to the application. We had indicated at the outset of this decision that the Bancroft IGA was a strike-bound store. As the Board has noted in Tena quip (cited above), it may not be an easy matter for a union to affirmatively and directly establish improper employer conduct. However, the Board has been prepared to accept circumstantial evidence which leads to an inference of improper employer involvement. On the balance of probabilities the majority of the Board is satisfied that the union has met the onus of proving that there has been improper employer involvement in this application and that there is a violation of section 63(16) of the Act. On all of the evidence outlined above, we find that the conduct of the management of the Bancroft IGA amounted to significant and influential involvement. We have drawn a negative inference from the failure of either the employer or the applicants to call Messrs. Howarth Sr. and Jerry - Michael Howarth to testify. In the absence of any evidence from Mr. Jerry Michael Howarth, and because we are satisfied that Mr. Boomhouer's evidence is credible, we have before us testimony that Mr. Howarth Sr. may have been planning to get rid of the union and had hired a lawyer from Ottawa. The facts are that the employer's counsel is from Toronto, the applicants' counsel is from Ottawa, but there is no evidence that the applicants have retained that counsel.

49. We heard no alternate theory to that put forward by the union, that the employer had masterminded the termination application; that Mr. Koppin, who was closely associated with Mr. Howarth Sr., had initiated the process and got the name of the Ottawa counsel from the employer's counsel; he then picked two employees he believed could be trusted with the enterprise, one of whom had a close relationship with both Mr. Howarth Sr. and with the general manager, Mr. Schramn; the employer facilitated the collection of names for the petition launching the application; it then permitted Mr. Vandermeer to have open access to the general manager's office to make phone calls to, or receive phone calls from, the lawyer in Ottawa; the employer then scheduled a number of employees so that they would be working around the voting hours and employees were allowed to go and vote during working hours; the general manager's vehicle was used by Mr. Koppin to go some distance to pick up an employee who was not scheduled to work that day so that that employee could cast his ballot; after the vote the employer let the applicants into the locked store and allowed them to do their de-briefing there; and finally, Mr. Vandermeer reported to Mr. Schramn on the turn-out for the vote.

50. The evidence before us has already been outlined, and the inference we have drawn from that evidence is that the employer is behind the termination application and that there was active cooperation between the applicants and the employer. The majority of the Board finds that the effect of the employer contribution from an early stage, and indeed up until the holding of the vote, was significant and influential with the many employees in the bargaining unit who had crossed the picket line. As has been noted earlier, the Board has recognized that employees are particularly vulnerable to influence by the employer, and that that influence, whether overt or more subtle, may operate to impair the free exercise of employee rights under the Act. In the case before us, the employees who had crossed the picket line to work were in a particularly sensitive position as they were plagued with concerns about their job security. Further, Mr. Howarth Sr. created and fostered a climate of antagonism against the union and, by negotiating directly with the employees in the store, undermined the presence of the union at the Bancroft IGA. This would appear to be a classic case of employees wanting to appear to identify with the wishes and interests of their employer, and their employer using its position and resources in furtherance of a termination application.

51. The Board has a discretion as to whether it should dismiss the termination application having found it was initiated and supported by the Bancroft IGA. In exercising that discretion the Board considers whether or not, notwithstanding the employer's initiation of the termination application, the true wishes of the employees may be ascertained in a termination ballot. We agree with the Board's statements in Bytown (cited above) that a termination application founded in the employer's initiation should result in its dismissal unless there are compelling labour relations reasons for why a Board-supervised secret ballot vote should still be held.

52. In this case there were no such reasons suggested. The applicants are simply of the view that the ballot box which was sealed when the vote was taken on March 11, 1997 should be opened and counted. We have already found that there was improper employer involvement in the application, and the events leading up to that vote. We cannot therefore find that it would be good labour relations policy to, notwithstanding our finding and in the absence of any compelling labour relations reason, open the ballot box and count the ballots. That vote has been tainted by the employer involvement. In our view the proper remedy in this case is to dismiss the application and to order that the ballots cast in the March 11, 1997 vote be destroyed.

53. This application is hereby dismissed.

DECISION OF BOARD MEMBER J. A. RONSON; August 18, 1998

1. This is another case where, in its rush to castigate an Employer, the Board loses sight, entirely, of the intent and spirit of the Labour Relations Act. As in the Wal-Mart case (Wal-Mart Canada Inc.; Re USWA [1997] OLRB Rep. Jan/Feb. 141) the Board again refuses to listen to employees. Instead, in the same maternal fashion, we seek to tell the employees what they should want.

2. The evidence disclosed that Mr. Vandermeer, (one of the Applicants for the termination vote), was instrumental in bringing the Union into the store. The evidence also disclosed that a Union representative threatened to put the store out of business. As a result of this and other evidence and argument that I heard in this case, of one thing I am sure; - sooner or later the ballots from a de­certification vote at the IGA store in Bancroft will be counted.

3. Civic relations and labour relations at this "tiny little store in a tiny little town in Ontario", (to use the words of Mr. Kucey, the Union lawyer at the hearing), would be best served by counting that vote now. Nothing in the evidence dissuades me from accepting that at least 40% of the employees agree, and have expressed their democratic wishes pursuant to section 63 of the Act. By rejecting and ignoring their wishes we look foolish]y presumptive to the eyes of those who live in and without the small towns of Ontario.

4. I would order the ballot box unsealed and the ballots counted as soon as possible.