1271-98-U United Food and Commercial Workers International Union, Local 175, Applicant v. EMU Plastics Limited, Responding Party.

BEFORE: D. L. Gee, Vice-Chair.

APPERANCES: Kelvin Kucey, Mark Flannigan and Marek Backowski for the applicant, Dali Bar for the responding party.

DECISION OF THE BOARD; February 25, 2000

1This matter is an application pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) in which United Food and Commercial Workers International Union, Local 175 (the “union”) alleges that Emu Plastics Limited (the “employer” or “Emu”) has violated sections 70, 72, 76, 77 and 86 of the Act.

2The employer was represented throughout the proceedings by Dali Bar. Mr. Bar is the Chairman of the employer and its principal shareholder. At the commencement of the hearing, Mr. Bar was informed that although there is no requirement that parties who appear before the Board retain the services of legal counsel, persons appearing on their own must bear any risks involved with doing so. I also indicated that the Board is an adjudicative tribunal whose role is to hear and decide cases and therefore cannot advise unrepresented parties as to how they should proceed.

3The instant application was filed on July 6, 1998. The allegations contained in the initial application included an allegation that, on the day following a vote held in connection with the applicant’s application for certification, one of the union organizers, Zelijko Jekic, was terminated contrary to section 72 of the Act. Amendments to the application were filed on July 20 and September 28, 1998. The September 28, 1998 amendments included an allegation that a second individual, Carl Ellis, was terminated by the employer contrary to section 72 of the Act. The hearing commenced on October 15, 1998. The hearing continued on February 17, 18, 19, 29 and 30 and March 25, 1999. On March 26, 1999, the union filed additional allegations. Amongst the allegations contained in the March 26, 1999 amendments was an allegation that two additional individuals, Jasmine Baldeo and Marek Backowski, had been terminated contrary to section 72 of the Act. The employer consented to the union’s request to amend the application to include the additional allegations. The hearing continued on June 16, and July 7, 1999. The union filed additional allegations on October 12, 1999. The amendments filed on October 12, 1999 specifically alleged that a further individual, Bill Bullen, had been terminated contrary to section 72. Once again, the employer agreed to the addition of the allegations. The hearing continued on October 25, 27 and 28 and December 6 and 8, 1999. During the hearing that followed the October 12, 1999 amendments to the application, it became apparent that, although not specifically pleaded in the amendments, the union was asserting that a sixth individual, Mr. Remharakh had been terminated contrary to section 72 of the Act.

3. As the foregoing chronology indicates, the allegations at issue are quite serious. The union was asserting that the employer was terminating employees based in part on the fact that they were union supporters. The first such individual was terminated in October 1998. The longer the hearing went on, the longer the list of individuals who had been fired, not to mention additional allegations, became. Each time additional allegations were added to the application, it raised the specter of having to recall witnesses who had already testified. It began to appear that the hearing would never conclude.

4As a result, notwithstanding the fact that the employer did not take issue with the applicant’s amendments to its application, when it became apparent that the union was leading evidence concerning Mr. Remharakh’s termination (which was not pleaded) and that the dispute with respect to Mr. Bullen’s termination would in and of itself consume numerous days of hearing, I strongly indicated my inclination not to hear the evidence. I advised the union that, if it wished to pursue the allegations concerning the dismissals of Mr. Bullen and Mr. Remharakh, it would be preferable for the union to file a fresh application. The allegations concerning Mr. Bullen and Mr. Remharakh arose over a year after the filing of the initial application and the termination of Mr. Jekic. Mr. Jekic, and presumably the bargaining unit members, were anxiously awaiting the outcome of the Board’s determination in respect of his treatment at the hands of the employer. The longer the hearing took, the longer the list of allegations became, and the more remote the chance of a timely determination. As a result of my comments, the applicant withdrew its allegations concerning Mr. Bullen and Mr. Remharakh.

5Based on the evidence placed before me, which included 12 witnesses and 46 exhibits, I have reached the following findings of fact.

6Emu is a manufacturer of plastic parts mainly for the automotive industry. The company commenced construction of a plant located in Texas prior to the union’s organizing campaign. In early June, 1998, the union was contacted by employees of Emu who expressed an interest in obtaining union representation. On or about June 13, 1998, a union organizing campaign began in the work place with employees soliciting applications for membership from their co-workers. Amongst the Emu employees who were active in the union organizing campaign were Jasmine Baldeo, Zelijko Jekic and Tirbilnie Remharakh. The union applied for certification on June 19, 1998. A representation vote was held on June 26,1998. The union was successful and was certified by the Board.

7The union served the employer with the application for certification on Friday, June 19, 1998. The application was received by Charmaine Chin King, the President and a primary shareholder of Emu. Ms. Chin King gave the Notice to Employees of Application for Certification (the “Notice”) to her daughter, Lisa Berment, who works at Emu in the office as a scheduler, and asked her to post it in the plant over the time clock.

8On the day the application was served on Emu, Ms. Berment had a conversation with Ms. Baldeo. The exact nature of the conversation between Ms. Berment and Ms. Baldeo is disputed as between the parties. Ms. Baldeo asserts that Ms. Berment approached her out on the plant floor and asked Ms. Baldeo “how would you like to work for a unionized company?” Ms. Baldeo asserts that when she asked Ms. Berment what she was talking about, Ms. Berment responded that someone had organized a union to come into the workplace and asked Ms. Baldeo if she knew who it was. Ms. Berment further stated that “Charmaine is going to shut the fucking plant down and they are going to move the plant to Texas.” Ms. Baldeo was adamant in giving her testimony that she spoke with Ms. Berment at approximately 2:00 p.m. and that, when she left the plant at the end of her shift, the Notice was still not posted. Ms. Berment testified that she proceeded into the plant to post the Notice at about 2:00 p.m. While she was posting the Notice, she was approached by Ms. Baldeo. Ms. Baldeo asked her if there was a union coming in. Ms. Berment responded, “I don’t know but this posting says there is so I guess there is”. Ms. Berment states that she then returned to the office area where she returned to her work and did not discuss the matter with her mother any further.

9Findings of credibility alone do not cause me to prefer the evidence of either Ms. Berment or Ms. Baldeo. Ms. Berment’s mother is the President of the company and Ms. Baldeo was one of the primary union organizers. Each witness demonstrated a propensity to give answers most favourable to the party on whose behalf they appeared. I do, however, find Ms. Baldeo’s version of the conversation to be more probable. Mr. Bar testified that the application for certification was not delivered to Emu until sometime close to 4:00. If such was the case, Ms. Berment could not have been posting the notice at 2:00 p.m. as she testified was the case. Rather, it must have been later, and quite possibly after Ms. Baldeo had left for the day which would support Ms. Baldeo’s evidence that, when she left the plant the notice had not yet been posted. Both Ms. Baldeo and Ms. Berment agree that the conversation occurred at 2:00 p.m. If the notice was not received until approximately 4:00 p.m. as Mr. Bar testified was the case, then it is not possible for the conversation between Ms. Baldeo and Ms. Berment to have occurred while Ms. Berment was posting the notice or for the posting itself to have been referred to in the conversation as Ms. Berment testified. Rather, there would have been no reference to a posting during the course of the conversation which accords with the evidence of Ms. Baldeo. Accordingly, I accept the evidence of Ms. Baldeo to the effect that Ms. Berment approached her on the plant floor at approximately 2:00 p.m. and spoke to her about the union. If Ms. Berment and Ms. Baldeo had a conversation in which the subject of the union came up (as is agreed occurred) it only makes sense that the issue would have been raised by Ms. Berment. It is simply not probable that an employee would, out of the blue, raise the subject of a union with the President’s daughter. Thus, I accept that Ms. Berment raised the subject of the union with Ms. Baldeo and made the comments attributed to her by Ms. Baldeo.

10The notice was posted. On the following Monday, Mr. Bar held meetings with members of management at which they were instructed on how to respond to questions asked of them by employees concerning the union. A letter was given to each of the employees in their pay envelopes concerning the union. Mr. Bar held a meeting of the employees on each of the three shifts. The message in the letters and meetings was that it was the employees’ right to decide whether or not they wished to be represented by a union, however, they should ask themselves some questions such as how much union dues will cost and whether they will be required to pay an initiation fee. The union relies on the meetings and the letters, not on the basis that their content amounts to an unfair labour practice, but rather to challenge the veracity of Mr. Bar’s evidence that the company warmly embraced the union and was actually pleased because it was the UFCW that had applied to be certified and not the CAW.

11During the week of the vote, it is alleged that the employer engaged in surveillance of the employees and took steps to restrict their movement and ability to communicate. Ms. Baldeo testified about a meeting she had with the Production Manager, Bill Bullen, and her direct supervisor, Azad Safar, at approximately 11:40 on Monday, June 22, 1998. Mr. Safar did not testify in these proceedings and Mr. Bullen did not deny Ms. Baldeo’s version of what was said during the meeting. Anthony Greer, the Operations Manager, was not present during the discussion but testified that he was aware of a decision having been made to prohibit Ms. Baldeo from going into the paint department. Accordingly, I find the discussion to have occurred as testified to by Ms. Baldeo.

12Ms. Baldeo testified that she was told that she was not to speak with other operators and that she was to take her break at the same time every day. Mr. Bullen told Ms. Baldeo that he would make an example out of her and, when Ms. Baldeo asked what he meant, he responded that she should wait and see. She was informed that she was to use the washroom during her breaks and not to go at any other time. Ms. Baldeo was told that she was to get her fan out of the paint shop before her shift started and that she was not to go near the paint shop at any other time of day. If she was seen in any area of the plant other than that to which she was assigned, she would be written up. When Ms. Baldeo went to leave, she was called back and Mr. Bullen instructed Mr. Safar to write her up. Mr. Azhad wrote something up and Ms. Baldeo was asked to sign it. She refused.

13The employer offered no explanation for why Ms. Baldeo’s movements were being restricted at this time. Given that the discussion took place on Ms. Baldeo’s first working day after the employer received notice of the application for certification, it is a reasonable inference that the employer was seeking to restrict Ms. Baldeo from communicating with other employees in the workplace.

14Ms. Baldeo further testified that, during the week of the vote, she was subject to surveillance. She testified that she was frequently watched by Mr. Bullen or Ms. Berment. She stated that, every time she went to the fountain for a drink or the washroom one or both of them was there watching her. On Friday, June 26, 1998, the day of the vote, Ms. Baldeo testified that she was followed to the washroom by a woman who works in the front office. The woman, who would normally use a different washroom located near the offices, followed Ms. Baldeo into the washroom. Ms. Baldeo, inside a cubicle, saw the woman look all around to see who was in there and then leave. Mr. Bullen and Ms. Berment both testified that they were not subjecting Ms. Baldeo or anyone to surveillance. Given Mr. Bullen’s meeting with Ms. Baldeo on the Monday of the week in question at which Ms. Baldeo was given instructions concerning washroom breaks, and restrictions on her movements in the plant, Ms. Baldeo’s testimony sounds entirely probable. If Mr. Bullen had just instructed her on when to go to the washroom and when not to and where she could go in the plant and threatened her with disciplinary action if she disobeyed, it is probable that he would keep an eye on her to see if she heeded his instructions or whether disciplinary action was to be imposed. Accordingly, I accept Ms. Baldeo’s evidence to the effect that, during the week of the vote, June 19 through to June 26, her movements were monitored more closely than had previously been the case.

15The Board heard a considerable amount of evidence concerning an individual by the name of Helen Calugas. The union alleged in the application that Ms. Calugas was promoted out of the bargaining unit contemporaneously with the application for certification. The evidence, however, does not support such a finding and the union did not pursue the allegation. The evidence establishes that Ms. Calugas has worked in the quality control department for some time. As of the date of the application, Ms. Calugas was a quality inspector, a position which, given the exclusion of the quality control department from the bargaining unit, was a non-managerial non-bargaining unit position. Ms. Calugas remains relevant to the issues before the Board, however, because she opposes the union and is close to a number of members of management.

16At some point during the days prior to the vote, Mr. Jekic, who was employed to maintain the machines and, as indicated above, was one of the union organizers, approached Ms. Calugas and asked her how she was going to vote. Ms. Calugas responded that, as the quality control department was excluded from the bargaining unit, she did not think she could vote. There is some dispute as to what was then said as between Mr. Jekic and Ms. Calugas but what is clear is that he expressed support for the union and she expressed opposition. Ms. Calugas became upset and started to cry. She ran into the front office where management personnel have offices and went to see Mr. Greer. She continued to cry in Mr. Greer’s office and told him that she was upset because she and Mr. Jekic had had a disagreement about the union. While Ms. Calugas testified that she did not tell Mr. Greer that Mr. Jekic supported the union, even if I were to accept Ms. Calugas’ testimony, which in itself is highly improbable, it simply defies belief that Mr. Greer would not, given the subject matter of the disagreement and the fact that Ms. Calugas was willing to reveal the dispute to a member of upper management, have reached such a conclusion.

17Given Ms. Calugas’ behaviour in relation to her disagreement with Mr. Jekic, it is my determination that Ms. Calugas would have communicated information she obtained concerning the union organizing campaign, including which employees supported the union, to management.

18Ms. Calugas testified that there was an occasion on which she saw Ms. Baldeo approach another employee by the Nhung Mai and have her sign a paper. Ms. Calugas approached Ms. Baldeo and asked her about it. Ms. Baldeo was evasive, answering “it was nothing ..... nothing....”. While Ms. Calugas testified that, at the time of the incident she was not aware of the union, I am satisfied, in part because Ms. Calugas herself attached sufficient importance and relevance to the incident to relay it during the course of her evidence, that she subsequently formed the opinion that Ms. Baldeo was asking Ms. Mai to sign a union card. I am further satisfied that Ms. Calugas would have informed a member of Emu management about the incident.

19One day during the week of the vote, Mr. Jekic was working late when Greg Chin King came to speak with him. Mr. King is related to the President of Emu, Charmaine Chin King. Mr. King stated that he wished to borrow a drill. He then invited Mr. Jekic out for a beer. The two men went out for a drink and the conversation eventually turned to the union. Mr. King stated that if the union got in the company would be closed and moved to Texas. Mr. Jekic then returned to the plant to finish his work where he noticed that Mr. King had not taken the drill he wanted to borrow. Mr. Jekic has not spoken to Mr. King since.

20Having regard to the foregoing, I am satisfied that, at a minimum, the management of Emu plastics Limited were aware that Ms. Baldeo and Mr. Jekic were union supporters.

21Mr. Jekic was employed at Emu as a maintenance technician. His immediate supervisor was Terry Turcotte who reported to Mr. Bullen who in turn reported to Mr. Greer. Mr. Jekic’s job was to fix the machines, replace broken parts and do preventative maintenance on the machines and equipment. For repairs or parts replacements, Mr. Jekic would be given a work order directing him to do the work in question. For his regular preventative maintenance work, a work order would be generated but it would be a document that was simply automatically generated each week. Mr. Jekic performed preventative maintenance on machine #13 every Friday near the end of the day shift which ends at 4:00.

22The representation vote was held on Friday, June 26, 1998. Mr. Jekic was working 7:30 to 4:00 on the day of the vote. The vote was held in the cafeteria and was ongoing from approximately 3:00 to 4:00. At approximately 3:40 on June 26, an incident occurred involving Mr. Jekic that the company relies upon to support his dismissal the following Monday.

23According to Mr. Jekic, he approached the operator of machine #13, Fatma Naaman, to ask her to move her table out of the way so that he could perform maintenance on the machine. As he was doing so Royce Jones, the Quality Assurance Manager, came by and said to Ms. Naaman, “if that guy is troubling you just say so and I will take care of him.” Mr. Jekic was surprised. He had had no prior dealings with Mr. Jones. Mr. Jekic said “what is the problem? I am just doing my job.” Mr. Jones then called over Mr. Bullen, who approached Mr. Jekic from the opposite side. Mr. Bullen approached quite quickly and Mr. Jekic was left with the impression something was going on that he did not understand. Mr. Bullen asked Mr. Jekic what the fuck he was doing and demanded to know if Mr. Jekic had a work order to perform work on the machine in question. Mr. Jekic responded that he did not need a work order, he was there to perform routine weekly preventative maintenance which is done on this machine every Friday at this very time. Mr. Bullen called him a liar and ordered him to get off the floor.

24Mr. Jekic took Mr. Bullen’s comment that he “get off the floor” as quite serious. He decided to go to the office area and try to get help from Mr. Bar or Ms. King. All three individuals moved into the office area. Mr. Jekic went up and down the hall trying to find someone to help him. Frank Secchi, the Controller, came out of his office and told Mr. Jekic that no one was there. Ms. King was in the cafeteria acting as scrutinizer at the vote. Mr. Secchi put his arm around Mr. Jekic and walked him out of the office area, out the back door of the plant, around the outside of the plant and back inside the back of the plant where they proceeded to the office of Terry Turcotte, Mr. Jekic’s immediate supervisor. They waited there until Mr. Turcotte came in at which time Mr. Secchi left and Mr. Jekic remained and talked to Mr. Turcotte for 30 to 45 minutes. Ms. King came to the door at around 4:50 and said that the voting was finished but, when she saw Mr. Jekic there she said nothing further and left. Mr. Jekic then proceeded to the front of the plant to the changeroom to change out of his work clothes. When he came out of the change room he saw Mr. Bar. Mr. Jekic went over to him and asked to speak with him but Mr. Bar responded in an aggressive tone “I do not have time now”. Mr. Jekic continued on his way, passing by the tool room and saying good-bye to Mr. Remharakh.

25Mr. Bullen testified that at 3:40 p.m. on June 26 he was called over to machine #13 by Mr. Jones who was engaged in a loud verbal discussion with Mr. Jekic. Mr. Jones asked Mr. Bullen if Mr. Jekic was to be working on the machine. Mr. Bullen in turn asked Mr. Jekic if he was supposed to be working on the machine because Mr. Bullen did not know. Mr. Jekic responded that he was to be working on the machine and Mr. Bullen asked to see his work order. At this point Mr. Jekic blew up saying that Mr. Bullen and Mr. Jones were not his boss, that they had no right to harass him and that, if they wanted to see his work order, he would take them out back and show them his work order. At one point, Mr. Jekic “tapped” Mr. Bullen on the chest with his finger. Mr. Bullen described Mr. Jekic as totally out of control. Mr. Jekic then stated that he would take them in and have Ms. King straighten them up. Mr. Jekic burst into the office area, pacing up and down the hall and yelling and screaming. When told Ms. King was in the cafeteria, he started toward the cafeteria and Messrs. Bullen and Jones had to stand between Mr. Jekic and the cafeteria to prevent him from going in and disrupting the vote. Mr. Secchi came along, tried to calm him down and took him outside to cool off. Immediately after the incident, Mr. Bullen went up to his office and wrote down what happened. His note of the incident was introduced as an exhibit and sets out the incident as described above.

26Mr. Bullen testified that at the time Mr. Jekic was at the machine, he did not have any of the necessary equipment with him in order to perform weekly maintenance. At the time of the incident he and Mr. Greer were responsible for hiring and firing and disciplining employees. It appears that Mr. Bullen would recommend a course of action to Mr. Greer who, after considering it and perhaps investigating, would make a final decision.

27When Mr. Bullen arrived at work the following Monday, Mr. Bullen was told by Mr. Bar that Mr. Bar had decided to fire Mr. Jekic, not for the incident Mr. Bullen was involved in, but for a second incident involving Mr. Jones alone. Mr. Bar told Mr. Bullen that he had witnessed the second incident. Mr. Bullen testified that he was unaware, until close to the commencement of the hearing, that Mr. Bar alleged that he had seen Mr. Jekic attempt to take a swing at Mr. Jones.

28Mr. Jones’ evidence about the incident which occurred after he called Mr. Bullen over is much the same as that given by Mr. Bullen. He described Mr. Jekic as having exploded, irrational and screaming. Mr. Jones made no mention of Mr. Jekic having tapped Mr. Bullen but did state that Mr. Jekic shook his finger very close to Mr. Bullen’s face. Notes made by Mr. Jones’ shortly after the incident are consistent with the evidence he gave.

29Mr. Jones, however, also testified that there was a second incident. He testified that after Mr. Jekic went for a walk with Mr. Secchi, he returned at which time Mr. Jekic told Mr. Jones that he was a fucking snake and “gave me a solid poke into my chest with his finger”. Mr. Jones further testified that, following the “poke”, Mr. Jekic took a swing at him with an open hand. Mr. Jones stated “I backed up, if I had not he would have hit me. I was shaking. Azad Safar [a supervisor] came along and put his arm around Jaco [Mr. Jekic] and pulled him away.”

30Mr. Jones prepared notes of the incidents. Mr. Jones stated that he started the notes following the first incident and finished them after the second incident. Mr. Jones’ notes were entered as an exhibit. Mr. Jones’ notes with respect to the first incident are more or less consistent with his testimony. His notes concerning the second incident are not consistent with the testimony his gave. His notes concerning the second incident state as follows:

Approximately [sic] 15 minutes later I was talking to Arthur in the main walkway near machine #21. Jarcko [Mr. Jekic] came up to me again & said I was a fucking little snake & I’ve only been here 3 weeks & I don’t know what I’m talking about with a finger in my face. Azad (shift super) then asked Jarcko to come talk with him.

The words “with a finger in my face” are written in between two lines of handwriting such that it is obvious that they were added in after the fact. The notes concerning the second incident are squeezed onto the last three inches of Mr. Jones’ two pages of notes concerning the first incident. No mention is made of Mr. Jekic having poked Mr. Jones or having attempted to strike him. Neither of the two individuals referred to in Mr. Jones’ notes as having been present, Arthur LeBlanc or Azad Safar, testified in these proceedings.

31Following receipt of the instant application in which it is alleged that Mr. Jekic was terminated for reasons relating to the union, Mr. Bar met with Mr. Jones and had him prepare a statement responding to the allegations. The statement prepared by Mr. Jones at that time was entered as an exhibit. In this document, Mr. Jones makes absolutely no reference to a second incident at all. The only reference to physical violence on Mr. Jekic’s behalf directed at Mr. Jones is contained in the closing paragraph of the document which states as follows:

Even though it appears that it was Mr. Bullin [sic] who was the subject of Mr. Jekic rage and anger, I was also included in the physical threats and inferences. The physical waving his finger inches from my face and finger stabbing my body was very intimidating. Mr. Jekic’s size and violent verbal manner had me feeling that my physical safety was in jeopardy.

Clearly this statement is in relation to the first incident and not the second as Mr. Bullen was not present during the second incident. Further, the statement refers to “threats and inferences” and makes no mention of Mr. Jekic having attempted to strike Mr. Jones with an open hand as Mr. Jones testified.

32Mr. Jones testified that his statements make no mention of Mr. Jekic having attempted to strike him because he was “scared shitless ..... very nervous ..... emotionally upset and .... things became clearer later”. He later said that Mr. Jekic never “lunged” at him. Rather, Mr. Jekic took a step forward and, as he did, Mr. Safar stepped up and pulled Mr. Jekic away. Mr. Safar was turning Mr. Jekic around and Mr. Jekic was attempting to turn back to Mr. Jones. As to why Mr. Jekic stepping towards him, or details of Mr. Safar pulling him away, did not appear in his written statements, Mr. Jones testified “I just wanted to get the heck out of there”. When reminded that he did not leave the plant until 5:00 p.m., Mr. Jones responded, “I said I wanted to not that I did”.

33I do not accept Mr. Jones’ explanations as to why his written notes, one taken contemporaneously with the event and the other prepared after receiving the union’s allegations, do not contain references to Mr. Jekic attempting to strike him and having to be restrained by Mr. Safar. The explanation that he just wanted to leave is nonsensical in light of the fact that he did not leave the plant. The explanation that he was too upset may explain why a reference was missing from his handwritten statement prepared immediately following the events but does not explain why a reference is missing from the second statement which was prepared a month and a half after the incident.

34Mr. Jones testified that he was unaware that Mr. Bar had witnessed the second incident. The sole basis for his understanding that Mr. Bar witnessed the incident is that Mr. Bar told him so. Mr. Jones testified that “I did not know he [Mr. Bar] had watched the whole thing because if he had I would have thought he would have stepped up to save my bacon.” Mr. Bar and Mr. Jones had a 15 minute conversation concerning Mr. Jekic’s behaviour that day but, according to Mr. Jones, Mr. Bar never mentioned that he had witnessed the incident until the following Monday morning.

35Mr. Bar testified that Mr. Jekic was fired based purely on the second incident which is alleged to have taken place between Mr. Jekic and Mr. Jones. Mr. Bar states that he witnessed the second incident and based his decision to terminate Mr. Jekic based on what he saw.

36Mr. Bar testified that he had heard the commotion in the office area when Messrs. Jekic, Jones and Bullen came in following the first incident. He finished a phone call he was on at the time and then proceeded out into the plant to see what was happening. He noticed a number of people standing around in front of the cafeteria where the vote was being conducted so he told them to move on. He then remained standing in front of the cafeteria “monitoring the area”. At approximately 3:50 he witnessed Mr. Jekic approach Mr. Jones and start yelling at him. Mr. Jones did not respond and Mr. Jekic continued to yell at him. Other employees came by and tried to get Mr. Jekic to move on. Then, Mr. Jekic swung at Mr. Jones attempting to “punch” him. He then stuck Mr. Jones with his finger. He then went to take another swing at Mr. Jones but did not make contact because of the presence of another employee. Mr. Bar testified that he then told the parties to leave the area. He yelled at them. Mr. Jekic demanded to speak with Mr. Bar but Mr. Bar told him that he could not speak with him as he was involved in the vote.

37Although Mr. Bar testified that on the Monday morning he reviewed reports made by Messrs. Bullen, Secchi and Jones, he stated that it was his decision alone to terminate Mr. Jekic and that such decision was based entirely on what he himself had witnessed on the shop floor. Thus, the employer relies exclusively on the second incident that is alleged to have occurred between Mr. Jekic and Mr. Jones with Mr. Bar watching as the basis for Mr. Jekic’s termination.

38Mr. Bar testified that he took notes of the incident immediately after it occurred on Friday, June 26. Mr. Bar’s notes were entered into evidence. Mr. Bar’s notes describe the incident thusly:

During this time [that he was standing outside of the cafeteria] I noticed the employee engage in a heated discussion with Royce Jones. Mr. Jones tried twice to avoid the discussion. Upon Mr. Jones [sic] second attempt to avoid further discussions with Zelijko, the employee lunged at Mr. Jones attempting to physically strike him. Fortunately other employees grabbed Zelijko and were able to prevent further action.

Zelijko who was being dragged out refused to leave and insisted on speaking to me when he saw me overseeing the situation. He approached me and demanded to speak to me. I advised him that this was not the time or the place and that I could not deal with the situation at the time but would be speaking to him on Monday. ...

... His attempt to strike Mr. Jones was only thwarted by other employees who were fortuitous [sic] present and able to hold him back.

39On the following Monday, Mr. Jekic was informed by Mr. Bar that he was fired based purely on what Mr. Bar had seen on the shop floor the previous Friday.

40There are numerous discrepancies between Mr. Bar’s oral evidence and his notes and between Mr. Bar’s evidence and that of Royce Jones. Mr. Bar gave oral testimony that Mr. Jekic twice tried to hit Mr. Jones, yet his written notes refer to only one attempt. Mr. Bar’s notes indicate that Mr. Jekic had to be physically dragged away by other employees. Mr. Bar made no mention of Mr. Jekic being dragged out in his oral testimony. Mr. Jones clearly testified that he was unaware that Mr. Bar had witnessed the incident. And yet, according to Mr. Bar, he stepped in immediately after an employee prevented Mr. Jekic from hitting Mr. Jones and yelled at the people to clear the area. If such had occurred Mr. Jones certainly would have been aware that Mr. Bar had witnessed the incident. Mr. Bar refers to two attempted swings and one poke to Mr. Jones’ chest. Mr. Jones referred to only one swing. Mr. Bar referred to the swing as an attempted punch, suggesting a closed fist, whereas Mr. Jones testified that Mr. Jekic swung at him with an open hand.

41As indicated above, the discrepancies between Mr. Jones evidence and that of Mr. Bar and the discrepancies between the witnesses’ oral evidence and their written notes are numerous. The discrepancies are such so as to render the evidence completely unreliable.

42What is known is that, prior to June 26, 1998, as a result of Ms. Calugas having run crying to Mr. Greer and informing him of her disagreement with Mr. Jekic about the union, that management was aware that Mr. Jekic was a union supporter. It is also known that with respect to Ms. Baldeo, another known union supporter, management was taking steps to prevent her from moving about the workplace and communicating with her co-workers. Based on such facts, it is reasonable to infer that management was also interested in preventing Mr. Jekic from communicating with his co-workers and that, when Mr. Jones saw him engaging in discussion with Ms. Naaman, that he stepped in to put an end to it. Given the tensions that most probably existed in the workplace at the time as a result of the vote being held, it is entirely possible that Mr. Jekic and Mr. Jones got into a very heated and aggressive argument. I accept that, when Mr. Bullen came over, Mr. Jekic may have become engaged in a further heated, aggressive discussion which involved finger waving and the stabbing of his finger in the air.

43The employer does not, however, rely on the incident involving Mr. Bullen as justifying Mr. Jekic’s dismissal. The employer relies on the alleged second incident, during which Mr. Jekic spoke with a finger in Mr. Jones’ face, tried to strike him once, or tried to strike him twice, depending upon which version of the employer’s evidence one was to accept. Mr. Jekic denies that there was a second incident.

44Given the multiple discrepancies in the evidence, and that fact that witnesses who could have supported the employer's evidence were not called, I am unable to accept the evidence of either Mr. Jones or Mr. Bar. The discrepancies are considerable. Most of them have been highlighted above. The most glaring discrepancies, are as follows. First, the notes Mr. Jones prepared immediately following the second incident make no mention of any attempt on Mr. Jekic’s part to assault Mr. Jones. The closest thing to a threat of physical assault by Mr. Jekic is a notation, added after the notes were prepared, to the effect that Mr. Jekic spoke “with a finger in [Mr. Jones’] face”. In fact, all of the notes concerning the second incident, which are squeezed onto the bottom of the second page of notes concerning the first incident, appear to have been added after the fact. Mr. Jones’ typewritten notes, prepared after receipt of the application and with knowledge of the allegations, make no mention at all of a second incident. Mr. Jones gave oral testimony to the effect that there was a second incident and that Mr. Jekic poked him in the chest and attempted to strike him with an open hand. Mr. Bar testified that Mr. Jekic took a swing at Mr. Jones, stuck him with his finger and then tried to punch him. Mr. Jones testified that Mr. Jekic did not make contact when he swung at Mr. Jones because Mr. Azad intervened. Mr. Jones described Mr. Azad as having put his arm around Mr. Jekic and walking him away. Mr. Bar described the scene as a number of other employees trying to get Mr. Jekic to move on and finally an assault on Mr. Jones being prevented by an employee “dragging” Mr. Jekic away. Mr. Jones testified that he was unaware that Mr. Bar had witnessed the incident and testified that had Mr. Bar witnessed it he would have expected Mr. Bar to step in and “save his bacon”. Mr. Bar testified that he did witness the second incident and in fact he had stepped forward and yelled at the employees to clear the area. None of the employees, including Mr. Azad, testified in these proceedings.

45I find a number of other things about the employer’s handling of Mr. Jekic to be unusual. First, the employer’s own evidence was that Mr. Jekic routinely performed maintenance on machine #13 on Fridays near the end of the shift which ended at 4:00 p.m. Thus, it was completely in keeping with routine that Mr. Jekic would have been working around machine #13 at the very time in question and potentially speaking to the operator of the machine. Why in such circumstances, Mr. Jones and Mr. Bullen made an issue of Mr. Jekic being there, is perplexing. In light of the evidence which establishes that Mr. Jekic was a known union supporter and the evidence that the employer took action to minimize the contact Ms. Baldeo, another known union supporter, had with her co-workers in the days leading up to the vote, it appears that Mr. Jones was indeed endeavouring to prevent Mr. Jekic from communicating with Ms. Naaman. Further, the evidence is that discipline matters were always handled by Messrs. Bullen and Greer. Yet in the case of Mr. Jekic, Mr. Bar made the decision to terminate Mr. Jekic and carried out the termination himself. While Mr. Bar’s involvement in the decision to terminate Mr. Jekic was explained by his allegedly having witnessed the incident in question, why he was the one to carry out the termination, was never explained.

46Thus, I find the employer’s evidence concerning the alleged second incident to be completely unreliable.

47Accordingly, it is my determination that Mr. Jekic was not terminated as a result of a second incident on June 26 as alleged by the employer, but rather was terminated for reasons relating to the union organizing campaign and Mr. Jekic’s support therefore.

48As indicated above, Ms. Baldeo was one of the employees who worked on the union organizing campaign. She spoke to her co-workers about the union in an effort to persuade them to support the union and asked them to sign union membership cards. In addition to the facts set out above which, on their own, satisfy me that the management of Emu knew of Ms. Baldeo’s activities and that she was a union supporter,

the evidence further establishes that, following the union’s certification, Mr. Bullen and Ms. Calugas both stated to Ms. Baldeo that they were aware that she had helped to organize the union.

49Ms. Baldeo commenced employment with Emu in August 1981 as a machine operator. She was diagnosed with carpel tunnel syndrome in April 1995 following which she was off work for three months. When she returned to work she was placed on modified job duties. Ms. Baldeo’s employment with Emu was terminated on January 12, 1999.

50Prior to the union being certified, when Ms. Baldeo was unable to report to work due to illness, she would simply call in to advise the company that she would not be in that day. Following the union’s certification, Ms. Baldeo was informed that she was to provide a reason for her absence. Prior to the union’s certification, Ms. Baldeo was only required to bring in a medical certificate for absences of three days or more. Following the union’s certification, Ms. Baldeo was informed that medical certificates would be required for an absence of even one day. Mr. Bar testified that Ms. Baldeo was informed that she would be henceforth required to provide a medical note after only one day’s absence because she had called in and failed to give a reason for her absence. Regardless of the explanation for the requirement being imposed, it was something that had not been imposed on Ms. Baldeo prior to the union’s certification. Prior to the union’s certification, Ms. Baldeo’s concerns about being asked to perform work she felt she could not do were addressed without problem. Following the union’s certification, Ms. Baldeo encountered resistance from management when she complained about tasks she was asked to perform. On one occasion, after she had raised concerns about being asked to do a job management subsequently agreed she could not do, she was called into Mr. Greer’s office where she found Mr. Bar waiting for her. Mr. Bar informed her that she should not expect the company to provide her with modified duties for the next 10 years. At the time in question, Mr. Greer was in charge of Ms. Baldeo’s workers compensation claim. Mr. Bar had never previously involved himself in an issue concerning Ms. Baldeo. At some point following this meeting, Mr. Bar took over responsibility for Ms. Baldeo’s workers compensation claim.

51Ms. Baldeo was on the union negotiating committee. Negotiations were ongoing as of January 13, 1999. One of the issues that came up for discussion was the provision of modified job duties for bargaining unit members. Mr. Greer testified that, during his employment with another employer, he had had 16 years of experience working with the UAW. Based on such experience, it was Mr. Greer’s understanding that, now that there was a union in the workplace, light duties must consist of bargaining unit work. Mr. Greer asked Mike Brennan about the issue of light duties and Mr. Brennan confirmed to Mr. Greer that light duties must consist of bargaining unit work. Mr. Greer further testified that, while he was responsible for Ms. Baldeo, he found her light duties to perform and that such light duties continue to exist. Ms. Baldeo disputes that Mr. Brennan stated that her light duties must consist of bargaining unit work. Ms. Baldeo testified that Mr. Brennan told her that if she was assigned non-bargaining unit work as light duties, that it was up to her as to whether she would accept but she would no longer be in the bargaining unit. I find it unnecessary to make a determination as to which of Mr. Greer or Ms. Baldeo’s recollections is correct. Regardless of which version is accurate, what Emu did next is simply inexplicable.

52Following the discussion concerning light duties, at a point in time when the collective agreement negotiations had not been concluded, and absent any negotiation of a collective agreement term or agreement concerning how the employer could or should deal with employees presently on light duties, Ms. Baldeo was notified that she was terminated. The employer justifies Ms. Baldeo’s termination on the basis that the union forced it to fire her. The employer states that because the union took the position at collective bargaining that light work would have to be bargaining unit work, that it was forced by the union to fire Ms. Baldeo. Not only did the employer fire Ms. Baldeo, it communicated her termination to her by having Mr. Bar hand her termination letter over the negotiating table.

53I find the employer’s behaviour to have been a flagrant attempt to punish Ms. Baldeo and communicate to others in the bargaining unit the message that their work conditions would be worse, not better, with trade union representation. It was not the union that raised the issue of light duties, it was Mr. Greer. The issue was not raised as a collective bargaining proposal, it was a casual inquiry. Accepting without finding that the union did suggest that light duties must be bargaining unit work, at the time Ms. Baldeo was fired, a collective agreement had not been concluded. A collective agreement was not concluded until three months later (and in fact the employer asserts that there still is no valid collective agreement in place). At the time Ms. Baldeo was fired, there was no requirement on the employer’s part to implement the union’s alleged position. The timing and stated reason for Ms. Baldeo’s termination can only be explained as an attempt on the employer’s part to communicate to the employees the message that there would be negative consequences to trade union representation. Further, the employer’s conduct of handing Ms. Baldeo her termination letter at the negotiating table can only be construed as an attempt to ensure that the message was not lost on Ms. Baldeo. She had chosen union representation and she was now being fired as a direct consequence of her choice.

54Mr. Bar suggested that Ms. Baldeo was also terminated because there were no longer sufficient light duties for her to perform. In light of Mr. Greer’s evidence and that of Ms. Baldeo to the contrary I do not accept Mr. Bar’s evidence. It is my determination that Ms. Baldeo was terminated for reasons related to the union.

55Carl Ellis commenced employment at Emu on February 11, 1992. Mr. Ellis was a union supporter. He was nominated to be a steward but declined the nomination. He attended union meetings. Mr. Ellis was terminated on September 22, 1999 following a heated altercation with a fellow employee by the name of Basile Datillo which occurred on September 21, 1999.

56The employer asserts that Mr. Ellis was terminated based on a poor work record and the fact that the altercation which occurred on September 21, 1999 was a physical one. The union asserts that Mr. Ellis was targeted by the employer. It is asserted that Mr. Ellis was never disciplined before the union organizing campaign and that, prior to the union being certified, altercations similar to the one in which he was involved occurred and did not result in the participants being terminated. The union submits that, having regard to the fact that the employer was in the process of building a case against Mr. Ellis and fired him for conduct which did not previously attract termination, it must be inferred that Mr. Ellis’ termination was motivated by anti-union animus.

57The company relies on a disciplinary notice dated June 9, 1998 to dispute the suggestion that it was targeting Mr. Ellis because of the union. If union organizing activity did not begin until June 13, and Mr. Ellis was disciplined on June 9, the employer asserts that it could not have been disciplining him as a result of the union.

58Mr. Ellis testified that he has never seen the June 9, 1998 disciplinary notice. Unlike every other disciplinary notice with respect to Mr. Ellis (all of which post-date the union’s certification) the June 9 disciplinary notice is not signed by Mr. Ellis and does not indicate that Mr. Ellis was provided with a copy of the notice. The next disciplinary notice concerning Mr. Ellis is dated July 16, 1998. Both the June 9 and July 16 notices indicate that Mr. Ellis is being warned as a result of not following proper start up procedures. The form specifically enquires “has employee been warned previously”. Notwithstanding the purported existence of the June 9 warning for the same deficiency (i.e. not following proper start up procedures), the question is answered in the negative on the July 16 disciplinary notice. Further, the July 16 notice indicates that it is a first oral warning. If the June 9 warning had actually been given, the July 16 warning would not have been a first oral warning, it would have been a second oral warning.

59Mr. Ellis was given a written warning on August 11, 1998. On August 13, 1998 he is given a further written warning which resulted in his serving a three day suspension. Notwithstanding the employer’s assertion that Mr. Ellis was given a verbal warning on June 9 and July 16, the August 13 notice contains a reference to only one oral warning and indicates that such warning was given on June 9, 1998. The form contains a chart where the employee’s supervisor is to insert the date of a first, second and third warning. It appears that the usual course would be for an employee to receive only one verbal warning following which the disciplinary process would move up to a written warning and then a suspension. The August 13 notice (invoking the suspension) attempts to maintain the fiction that the usual process was followed, with the first verbal warning having been given on June 9 and the written warning having been given on August 11. The form makes absolutely no mention of the July 16 verbal warning and nowhere is it is explained why, if a verbal warning was given on June 9 a further verbal warning was given on July 16. When cross-examined about the anomaly, Mr. Bar indicated that Mr. LeBlanc, the supervisor who imposed all of the discipline, would be called as a witness and would have to explain. Mr. LeBlanc was not called as a witness.

60Having regard to the state of the documentary evidence, the evidence of Mr. Ellis and the fact that the supervisor who allegedly disciplined Mr. Ellis on June 9, 1998 did not testify, I am not satisfied that Mr. Ellis was in fact given an oral warning on June 9. I am satisfied that the first time Mr. Ellis was disciplined since beginning his employment with Emu in February 1992 was after the union’s certification on July 16, 1998.

61Following Mr. Ellis’ return from his three day suspension he was transferred from the afternoon to the day shift. The transfer was effected so that a different supervisor could monitor Mr. Ellis’ work. Mr. Greer testified that “because Arthur [Mr. LeBlanc] was new, and I did not trust him yet, I decided to have Ellis evaluated by someone else”. From August 18, when Mr. Ellis returned to work following his suspension, to September 22, his last day of work, Mr. Ellis did not receive any further disciplinary notices for his work.

62The facts as set out above lead me to conclude that Mr. Ellis was in fact being set up by his employer following the union’s certification. Mr. Ellis had absolutely no disciplinary notices in the six plus years he worked prior to the union being certified. Immediately following the union’s certification he is the subject of three notices in rapid succession. The fact that the employer manufactured a disciplinary notice which predates the union’s certification casts suspicion on all those that follow. Further, the fact that Mr. Ellis received no further disciplinary notices during the period of August 18 to September 22 when he was working for a different supervisor leads me to doubt that his work was as poor as the disciplinary notices allege. The failure of the supervisor who imposed the discipline to testify exacerbates my doubts.

63I turn then to the altercation which occurred on September 21, 1998 between Messrs. Ellis and Dattilo.

64There is some dispute in the evidence as to whether the altercation between Messrs. Ellis and Dattilo was exclusively a verbal altercation or whether, during the course of the altercation Mr. Dattilo pushed Mr. Ellis. Messrs. Bar, Bullen and Greer, none of whom witnessed the incident and all of whom got their version of what occurred from Mr. LeBlanc who was the sole witness to the altercation, each testified that it was their understanding that Mr. Dattilo pushed Mr. Ellis. Both Mr. Ellis and Mr. Dattilo testified. Mr. Ellis testified that he was not pushed. Mr. Dattilo was unsure as to whether he may have pushed Mr. Ellis or not. The only witness to the incident, Mr. LeBlanc, (who it will be remembered was the supervisor who wrote up the disciplinary notices concerning Mr. Ellis), which I have found to be an attempt on the employer’s part to set Mr. Ellis up), did not testify.

65The Termination Report given to Mr. Ellis states as follows:

TERMINATION REPORT

EMPLOYEE’S NAME: CARL ELLIS CLOCK NO: 318

SHIFT: AFTERNOONS

DATE OF TERMINATION: SEPTEMBER 22/98

NATURE OF VIOLATION: VERBAL ALTERCATION (14.3)

DUE TO A VERY HEATED VERBAL ALTERCATION WITH BASILE D’ATTILO AT #20 MACHINE ON SEPTEMBER 21/98 YOUR EMPLOYMENT AT EMU PLASTICS HAS BEEN TERMINATED. FOR SAFETY REASONS OF FELLOW EMPLOYEES THIS TYPE OF BEHAVIOUR CANNOT NOR WILL NOT BE TOLERATED. WITH THE COMMISSION OF THE ABOVE OFFENCE THREE SECTIONS OF 14..3 IN “EMU’S COMPANY AND CONDUCT POLICIES MANUAL WERE VIOLATED.

1. UNLAWFUL ACTS AS THEY PERTAIN TO THE CRIMINAL CODE.

2. UNNECESSARY SHOUTING OR DEMONSTRATIONS IN THE PLANT.

3. ENDANGERING OF OTHERS OR THEMSELVES

IT IS NOT COMPANY POLICY TO INVESTIGATE GUILT OF EITHER PARTY IN AN ALTERCATION, BOTH PARTIES IN THIS CASE WILL BE TERMINATED.

“Anthony Greer” Sept. 22/98 “Bill Bullen” Sept. 22/98

ANTHONY GREER DATE BILL BULLEN DATE

The Termination Report given to Mr. Dattilo is identical except for the inclusion of the following additional sentence:

THE POLICE IN THIS INCIDENT WERE CALLED THOUGH CHANGES [sic] OF THREATENING WERE NOT LAID (ONLY BECAUSE CARL DID NOT WANT TO PRESS CHARGES) THEY DID RECORD AND WARN YOU CONCERNING YOUR ACTIONS.

66Thus, the Termination Reports refer to the altercation as being a “Verbal Altercation”. The reference to potential charges being laid against Mr. Dattilo are charges of “threatening” and not “assault. The Termination Reports do not support the evidence of Messrs. Bar, Bullen and Greer that they understood a physical altercation to have occurred. Rather, the Termination Reports suggest that the employer was of the view that it was a verbal altercation and took disciplinary action on such basis.

67Having regard to the evidence of Mr. Ellis and Mr. Dattilo I am satisfied that an extremely aggressive verbal exchange took place between Messrs. Ellis and Dattilo on September 21, 1998 and that such was witnessed by Mr. LeBlanc. In the course of the exchange, Mr. Dattilo jumped down from the top of a machine and “freaked out” on Mr. Ellis. Mr. Dattilo went wild, threatening to “knock Carl out flat”. Mr. Dattilo testified that, had Mr. LeBlanc not been present, he probably would have flattened Mr. Ellis. Mr. Ellis for his part was verbally abusive and used foul language. He indicated he was not willing to fight Mr. Dattilo. Mr. Dattilo responded “just wait until after work I am going to break your jaw”. Concerned that Mr. Dattilo would make good on his threat at the end of the shift, Mr. Ellis phoned the police. The police attended at the workplace and, as the Termination Report states, indicated that Mr. Dattilo could be charged with threatening. There is no evidence that they indicated that he could be charged with assault. Mr. Ellis said he did not want charges laid and they left.

68Following the police attendance at the plant, Mr. LeBlanc phoned Mr. Bullen at home to tell him about what happened. Although Mr. Bullen states that Mr. LeBlanc indicated that there was a physical aspect to the altercation such is hearsay and given the wording of the Termination Reports I do not accept such evidence. The Termination Reports indicate that Messrs. Ellis and Dattilo were terminated for a verbal altercation and it is my determination that it was on the basis of a belief that there had been a verbal, and not a physical altercation, that the decision was made to terminate them.

69There is evidence of how the employer has handled altercations in the work place in the past. There was a prior incident involving Mr. Ellis (a number of years previous) and an employee by the name of David Dean. Mr. Dean deliberately maneuvered a machine he was driving so as to nearly crush Mr. Ellis. Mr. Ellis phoned the police on this occasion as well as he was concerned about his safety. No discipline was ever imposed on either Mr. Dean or Mr. Ellis.

70Mr. Ellis gave evidence of witnessing an employee by the name of “Basile” (not Mr. Dattilo), who was crying, telling Mr. Bullen about his having been slapped by another employee by the name of Helen who was also present. Mr. Bullen told them both to go back to work. When Basile persisted with his complaints, Mr. Bullen told him that if he did not go back to work he would write both of them up.

71A number of disciplinary notices arising out of altercations in the work place were put into evidence. One such notice is a verbal warning given to Vishnu Ramnarine, known in the workplace as Basile. It indicates that he is being given a verbal warning for yelling and swearing at Helen Cqlqgueas [sic]. Mr. Ellis was unable to confirm whether this disciplinary notice related to the incident he witnessed. Mr. Ellis was adamant, however, that Basile informed Mr. Bullen that he had been slapped by Helen.

72An employee by the name of Maurice Wharton was given a verbal warning on June 5, 1998 for losing his temper, raising his voice and using foul language towards another employee.

73In October, 1998, Pankaj Shukla and his supervisor, Mr. LeBlanc, were both terminated for engaging in an altercation. There were no witnesses to the altercation, however, it came to the attention of Mr. Bullen who requested that Mr. LeBlanc prepare a report of what occurred. Mr. Bullen then spoke with Mr. Shukla. Mr. LeBlanc and Mr. Shukla each gave a different story and insisted that they were telling the truth. Mr. Shukla was asserting that his foot had been injured in the confrontation. Mr. Bullen determined that they should both be terminated. He consulted with Mr. Greer who agreed. Mr. Greer testified that at the time he made his decision, he was aware that Mr. Shukla was claiming that he had been injured in the confrontation. A week later Mr. Greer got a phone call from either Mr. Shukla or Mr. LeBlanc. They wanted to meet with him. Mr. Greer agreed. The two men gave Mr. Greer a letter in which they said that they had a confrontation, that the matter had been resolved and that there would be no further conflict. They asked for their jobs back. Mr. Greer agreed and reinstated both men. Mr. LeBlanc was placed on probation. The incident involving Mr. Shukla and Mr. LeBlanc occurred after the incident involving Mr. Ellis.

74The employer asserts that it has a firm policy that confrontations on the shop floor are not allowed and that termination is the automatic response. The employer’s conduct, however, does not support such assertion. The only altercation to lead to discipline was the one between Messrs. Shukla and LeBlanc. As indicated above, this incident occurred after the incident involving Mr. Ellis and hence cannot be relevant to a determination as to what the employer’s practice was at the time it terminated Mr. Ellis. In any event, when making a decision as to what discipline to impose on Messrs. Shukla and LeBlanc, the employer had reason to believe that a physical altercation had occurred given Mr. Shukla’s assertion of having been injured. Even so, both individuals subsequently had their discharges converted to suspensions. Thus, the employer had no past practise of having terminated an employee on the basis of a verbal confrontation at the time it terminated Mr. Ellis. In fact, the evidence of the incident between Mr. Dean and Mr. Ellis, which sounds to be more egregious than that between Mr. Dattilo and Mr. Ellis, suggests that termination is not the automatic result even where a physical confrontation occurs.

75Accordingly, I do not accept that there was a physical altercation between Messrs. Dattilo and Ellis or, more importantly, that the employer believed there to have been one. The employer understood the altercation to be a very heated, aggressive verbal altercation. The evidence suggests that incidents of a comparable nature have occurred in the past and that termination has not been the automatic result. Such findings, combined with my findings set out above to the effect that the employer was targeting Mr. Ellis after the union’s certification, lead me to conclude that Mr. Ellis’ termination was motivated, at least in part, by the fact that he was a union supporter.

76A considerable amount of evidence was heard concerning an employee by the name of Marek Baczkowski. Mr. Baczkowski acted as the union’s advisor throughout these proceedings. As a result of an injury to his hand which occurred in August 1997, Mr. Baczkowski was absent from the workplace at the time of the union’s organizing campaign. During the organizing campaign he received phone call from Mr. Jekic who informed him of the organizing campaign. As a result of such call, Mr. Baczkowski attended at the workplace to sign a card. Two days later, he received a telephone call from Ms. Calugas during which she stated that she knew he was supporting the union. Mr. Baczkowski attended at the workplace to vote. He returned to work a month or so following the vote on light duties.

77Following Mr. Baczkowski’s return to work he had a number of confrontations with the employer about the job duties he was to be assigned, his hours of work, which supervisor he would report to, whether he was required to bring notes in order to leave work early to attend therapy, and whether he was to be paid for the time he spent attending therapy. On February 5, 1999, Mr. Baczkowski was instructed by Azad Safar to perform the work of a machine operator. He refused on the basis that he did not believe that the work of a machine operator was within his restrictions. Mr. Baczkowski indicated that he wanted to speak with his doctor and have the duties reviewed by the appropriate individual from workers compensation. Mr. Safar said “no, you go” or words to that effect. Mr. Baczkowski and Mr. Safar went to the lunch room where there was a telephone. The phone was busy so Messrs. Baczkowski and Safar sat down to wait for it to become free. While they were waiting, Mr. Bar came in and said something to Mr. Baczkowski to the effect “you are out right now”. Mr. Baczkowski was escorted to the door and has not been back in the workplace since. No one from Emu has called Mr. Baczkowski to enquire where he is.

78Based on the events of February 5, 1999, Mr. Baczkowski assumed that he had been fired. At the conclusion of the hearing Mr. Bar stated that it is the employer’s position that Mr. Baczkowski has not been fired. He remains on the company’s records as an employee. Mr. Bar pointed out that Mr. Baczkowski was listed on the list of employees attached to a Memorandum of Settlement with respect to a first collective agreement reached in April 1999. In response, the union indicated that they were content to accept the employer’s assertion that Mr. Baczkowski has not been terminated and asked that the Board “direct that Mr. Baczkowski be compensated for any benefits that he has been denied during the period of time that he has been off work”. The union did not ask for an order directing that Mr. Baczkowski be reinstated as it did with respect to Mr. Jekic, Ms. Baldeo and Mr. Ellis. The union did not identify the nature of the benefits that it asserts Mr. Baczkowski has been denied. Having regard to the fact that the union is not seeking a reinstatement direction I presume that the lost benefits it is seeking are not in the nature of lost income. Given the nature of the union’s request, I am unable to make any directions, assuming any to be appropriate, concerning Mr. Baczkowski. Accordingly there is no purpose to be served in making findings of fact concerning Mr. Baczkowski’s treatment at the hands of the employer. I note, however, the employer’s position taken in final argument that Mr. Baczkowski remains an employee of Emu.

79The union also asserts that the employer violated the statutory freeze provisions of the Act by changing the form of the annual Christmas bonus from cash to a food voucher, canceling the plant shutdown over the Christmas season requiring employees to work the August Civic holiday, hiring temporary workers to do bargaining unit work, not holding a summer B.B.Q., prohibiting the employees from taking water to their work stations and implementing shift changes.

80On the evidence before me, I am not persuaded that, prior to the union’s certification, employees were given the August Civic Holiday off with pay, that the company hosted an annual summer B.B.Q. or that employees were permitted to take water to their work stations. Further, the evidence does not establish that the temporary workers performed any bargaining unit work. Accordingly, I find no violation of the statutory freeze insofar as such allegations are concerned.

81I turn then to the issue of the Christmas shutdown. For years prior to the union’s certification, the plant shutdown from on or about December 18 through to on or about January 2. The employees would be approached at the end of October and asked to work Saturdays to make up for the days that they were going to miss during the Christmas shutdown. In 1998 there was a Christmas shutdown from December 24 through to January 2. The employer asserts that the shutdown could not commence until December 24 as an audit was performed on December 21, 22 and 23 which required the plant to be operational. The company was required to have an audit performed before year end and December 21, 22 and 23 were the inspector’s available dates.

82Recently, in Royal Ottawa Health Care Group, [1999] OLRB Rep. July/August 711 the Chair of the Board, after a thorough examination of the Board’s jurisprudence concerning the freeze provisions of the Act and the approaches adopted for determining whether a violation occurred, articulated an approach which this panel of the Board adopts. The approach articulated by the Chair in Royal Ottawa Health Care Group

is as follows:

88. In my view, and in light of experience, these traditional views have to be augmented by another perspective that is more in tune with the precise role that section 86(1) is to play in the regulatory framework, once bargaining has begun. The language of section 86 has to be read as the Board did in Ottawa Public Library, supra, with these statutory purposes clearly in mind: bolstering the bargaining process; reinforcing the status of the union as the employees' bargaining agent (hence the distinction between the section 86(1) and 86(2) freezes); and providing a firm (if temporary) starting point from which bargaining will take off.

89. From that perspective it is necessary to pay particular attention to how the proposed change in employment conditions relates to bargaining. Is it the kind of thing that would typically be the subject of collective bargaining? And would changes of this kind, if implemented unilaterally in these circumstances, unduly disrupt, vitiate, or distort that bargaining process (what the freeze is designed to avoid whether or not the changes would also be a breach of section 17)? Is it the kind of thing about which the employer would normally be required to bargain by virtue of section 17? Because if the answer to these questions is "yes", it is the kind of thing that probably falls within the ambit of section 86(1) and "should" be frozen (at least for a time) while that bargaining process proceeds ("should" because while the words themselves are open to alternative interpretations, policy and purpose point in favour of that one).

90. It is also useful to consider whether the employer action is broadly based and treats employees as a collectivity (as a "collective" agreement does); or, alternatively, whether it is something intrinsic to an individual employee's situation (reclassifying an individual as opposed to introducing a new classification system; granting a promotion as opposed to creating a new process for promotions; disciplining an employee for misconduct as opposed to publishing a new scheme of workplace rules enforceable by discipline, etc.). For even in a collective bargaining regime, there is considerable scope for unilateral action impacting on employees and unaccompanied by any individual interaction that could be construed as "bargaining" with the employee(s).

91. If the change in question is the kind of thing that affects employees as a collectivity, and it is the kind of thing that the employer would be obliged to bargain about (per section 17), and it is the kind of thing that, as a matter of labour relations practice, employers typically do bargain about, then it is likely to be the kind of thing that the employer cannot implement unilaterally during the currency of the statutory freeze. In other words, it is the kind of change to employee "terms and conditions of employment rights, privileges or duties" that requires the consent of the bargaining agent.

92 Conversely, (and subject to section 73) there is nothing inimical to collective bargaining if an employer carries on business as before in respect of individual hiring, firing, promotions, demotions, work assignment and so on - the daily stuff of individual employer-employee interactions, that in large measure, are unrelated to the collective bargaining process, and are typically presented to employees as a fait accompli.

93. It seems to me that the answer to questions such as these, may provide a better guideline to the Board's actual interpretation of section 86(1), than asking whether the employer is carrying on "business as usual", or whether the changes are ones that employees might reasonably expect to be implemented unilaterally; because, unlike these other formulations, these questions require the Board to consider how the words of section 86(1) apply or relate to the bargaining process - the actual subject of regulation. At the very least, the answer to these questions helps to illuminate the purposive approach which the Board applies in respect of section 86(1), and thus fills out the picture painted by the "reasonable expectations" considerations in Simpsons, and the "business as usual" analysis in Spar.

94. Does this approach tie the employers hands, unduly fetter entrepreneurial initiative, or prevent the employer from responding to market and non-market economic pressures - the concern expressed in spar? The answer in most cases is: not much and not for long - unless the party seeking change chooses to tolerate the restriction, in light of other economic and collective bargaining calculations. For established collective bargaining relationships, it means no more than carrying on under the terms of the prior collective agreement - what the union has already bargained (see Molsons Breweries, [1977] OLRB Rep. Aug. 526). For a new collective bargaining relationship, it means only that the parties are obliged to get on with the bargaining, and if really pressed to effect change, to seek the required consent or put themselves in the position where they can resort to economic sanctions and the freeze, simultaneously, disappears.

95. Now, no doubt, the freeze is a spur to bargaining. It is an adjunct to the statutory duty to bargain found in section 17, and reinforces the requirement to deal only through the union when changing the employment terms for workers in the bargaining unit. But the freeze is, at best, a temporary "veto" for the union (or employer); and even hospitals can, if they wish, move more quickly into an arbitration forum - where, today, the law requires an arbitrator to take into account "ability to pay". The fact that, in practice, the first contract freeze may last for quite a while, shows only that, most of the time, there is no pressing need to act unilaterally, and that parties do work out these issues at the bargaining table - as they are obliged to do under section 17.

96. Finally, when the Board is dealing with situations where there is no anti-union animus (that is, a form of pure economic regulation), it is well to remember the relationship between any alleged breach of section 86 and the Board's discretion to fashion a remedy - If Any (see the language in section 96(4) of the Act). As in all cases to which section 96 applies, a contravention also raises remedial issues: what should the Board do to rectify the situation, in light of the circumstances and the overall thrust of the regulatory scheme?

97. Section 86(1) is designed to preserve the status quo to facilitate bargaining. It was not intended to preserve features of the relationship that the union was not able to secure through the bargaining process. To put the matter another way: the freeze preserves the status quo pending the application of reasoned discussion or the exercise of bargaining power; but it is not a substitute for bargaining power or an escape hatch from the union's obligation to bargain. Nor is it a "penalty provision" or an instrument to exact an unfair tactical advantage. Accordingly, where the employer has not acted unilaterally, has recognized the union, has accepted its obligation to bargain about matters affecting the employees, has fairly raised a proposed change at the bargaining table so that the union can bargain about it, and where, in addition, the employer really is in a situation where business exigencies demand immediate action, the Board may well take all of that into account when fashioning a remedy for any breach of the Act.

98 This is not to say that employers are free to breach section 86(1) with impunity. Nor should this reference to remedial discretion be taken as an invitation to employers to disregard their statutory obligations. It is merely worth noting that in crafting a remedy for any breach of the Act that does occur, the Board may take into account all of the circumstances of the case before it, in light of the purpose that the statutory provision was designed to achieve.

83Applying the approach as set out in Royal Ottawa Health Care Group to the facts at issue, it is my determination that providing employees with an opportunity to bank time in order to enjoy an extended absence from work with pay over the Christmas season is the kind of thing that would typically be the subject of collective bargaining. In fact, the Memorandum of Settlement entered into by the parties in April 1999 contains an article that mandates the continuation of “existing customs and practices, rights and priviledges, benefits and working conditions … unless modified by mutual agreement of the Employer and the Union”. The subject matter of the change is the kind of thing that an employer would normally be required to bargain about by virtue of section 17 of the Act. Thus, the employer’s alteration of its practice with respect to allowing employees to bank time in order to enjoy an extended absence from work with pay over Christmas constitutes a violation of section 86.

84I turn then to consider whether remedial relief is appropriate. On the facts before me, the employer acted unilaterally. The issue of having to shorten the annual Christmas shutdown was never raised with the union. The employer made a decision and, notwithstanding the union’s certification as the employees’ representative, imposed such decision without consulting or informing the union. Had the employer consulted with the union it is possible that some other arrangements, such as a delayed two week shutdown, may have been agreed to. Regardless of what the outcome of such discussions may have been , the very act of engaging in such discussions would have respected as opposed to undermined the union’s status as the employees’ bargaining agent, a purpose which has increased importance in a situation such as the present one where the union is newly certified and in the process of negotiating a first collective agreement.

85The union did not dispute the employer’s assertion that an audit had to be performed prior to the end of the calendar year and that the inspector’s sole available dates were December 21, 22 and 23. Thus, it appears that the employer was in a position where business exigencies required it to, at a minimum, post-pone the Christmas shutdown. However, the employer knew of the audit dates in September and the shutdown was not for a further three months. There was ample time for the employer to approach the union and attempt to reach an agreement on how the 1999 Christmas shutdown would be scheduled in light of the audit dates.

86Accordingly, I find the employer’s violation of section 86 of the Act to be one that should attract remedial relief. The union requested declaratory relief which I find to be appropriate.

87With respect to the question of whether the employer’s decision to give a food voucher instead of cash for the 1998 Christmas bonus, applying the approach enunciated in Royal Ottawa Health Care Group it is my determination that the altercation constitutes a violation of section 86 and that remedial relief is appropriate in the circumstances. While the employer contributed a like amount of money to the employees’ annual Christmas bonus, the form the bonus took is something that would typically be the subject of collective bargaining. A cash bonus may well be of intrinsically greater value to some employees than a voucher. The change was broadly based and implemented without prior consultation with the trade union. Business exigencies did not necessitate the change. The union requested declaratory relief which I find to be appropriate.

88The sole remaining allegation relating to section 86 of the Act concerns the employer’s implementation of shift changes in the spring of 1999. The parties entered into a Memorandum of agreement on April 21, 1999 that was ratified by the members of the bargaining unit on April 27, 1999. Article 17.03 of the Memorandum of Agreement provides as follows:

(c) There shall be no shift preference as all shift personnel will be subject to shift rotation as required.

89The employer asserts that there is no collective agreement in effect between the parties as the document ratified by the employees differed from that signed off by the parties. The issue of whether there is a collective agreement in existence was put in issue by the employer in the course of an arbitration proceeding. In Emu Plastics Ltd., unreported November 1, 1999 (Marcotte), Arbitrator Marcotte ruled that there was a collective agreement in existence between the parties. In any event, it is the union’s position that, at the date the shift change was implemented there was a collective agreement in effect. The freeze ceases to exist upon the conclusion of a collective agreement and accordingly, there can be no freeze violation insofar as the shift change is concerned.

Determination:

90Having regard to the foregoing, I hereby make the following declarations, orders and directions:

a)I hereby declare EMU Plastics Limited to have violated sections 70, 72, 76 and 86 of the Act.

b) I hereby order EMU Plastics Limited to reinstate Jasmine Baldeo, Zelijko Jekic and Carl Ellis to the position that they held with EMU Plastics Limited immediately prior to their dismissal and to fully compensate each of them for the loss of all wages and benefits during the period of time that they were denied employment.

c)I hereby order EMU Plastics Limited to post the Notice to Employees attached to this decision in the workplace in locations selected by the Union and to leave such Notice posted for a period of 30 days. EMU Plastics Limited is further ordered to place a copy of the attached Notice to Employees in envelopes individually addressed to all of the employees in the bargaining unit and to hand deliver such envelopes to those individuals actively employed at the workplace and to mail such envelopes to the home address of any individuals, such as Mr. Backowski, who are absent from the workplace.

91I remain seized to deal with any issues concerning the quantum of compensation owing to Ms. Baldeo and Messrs. Jekic and Ellis as well as any other issues arising out of the implementation of my orders herein.

“D. L. Gee”

for the Board