2687-98-R; 3150-98-U United Steelworkers of America, Applicant v. Baron Metal Industries Inc., Responding Party.

BEFORE: Christopher J. Albertyn, Vice-Chair.

APPEARANCES: Mark Wright, Brando Paris and Doug Lefaive for the applicant; Joseph Liberman, Erin R. Kuzz and Scott Bates for the responding party; George Cowley, counsel for the Metropolitan Toronto Police Service, accompanying Detective Constable Glen Furlong who was served a summons to witness.

DECISION OF THE BOARD; May 4, 2001

1. Board File No. 2687-98-R is a certification application. Board File No. 3150-98-U is an unfair labour practice complaint filed pursuant to the provisions of section 96 of the Labour Relations Act, 1995, R.S.O. 1995, c.1, as amended (“the Act”).

2. A representation vote was held in the certification application on November 16, 1998. After resolution between the parties of the challenges to the voters’ list, 42 ballots were cast in favour of the applicant union (“the union”) and 42 were against. The union contends that the ballot was not a true reflection of the wishes of the employees because of events which occurred in the lead up to the vote. Those events form the subject matter of the union’s unfair labour practice complaint. The union contends that there was such a level of intimidation of employees that the result of the representation vote is unreliable and should be set aside.

3. There were 19 hearing days in this matter. Eleven witnesses testified. In broad terms (the details will be set out below) the case involves the conduct of two Tamil men of Sri Lankan origin who were engaged into the responding party’s (“the employer”/“Baron Metals”/“the company”) service after the union’s certification application was filed. They sought to intimidate certain Tamil employees from supporting the union. Questions arise as to the employer’s involvement in the misconduct of the two new hires, and as to the labour relations consequences of their actions. There were collateral issues, such as whether the criminal records of the two men should have been admitted into evidence, and whether I should take those records into account in determining this matter.

4. I use the word, “intimidation”, on many occasions in this decision. I use it in the sense applied by the Board, viz. that concerning threats of physical violence or some other unlawful means to persuade another person or persons to change their viewpoint or to do something against their will, or not do something which they have a legal right to do: Keith MacLoed Sutherland, [1993] OLRB Rep. July 1219 at 1226-7, ¶¶10-12.

5. I propose to deal with these matters in the following sequence: firstly, I set out the relevant provisions of the Act; secondly, I will address whether the criminal records of the two men, Mr. Logeswaran Nimalrajah (known as “Kuti”, and so referred to herein) and Mr. Kodeswaran Mahadevan (known as “Kodi”, and so referred to herein), should be admitted into evidence; thirdly, after providing a brief background, I will set out a narrative of what occurred; fourthly, I will explore the probabilities of involvement, if any, by Baron Metals management in the conduct of Kuti and Kodi; I will then draw conclusions of fact which will form the basis for my determination of the matter.

Relevant provisions of the Act

6. The union claims that the employer has violated sections 5, 70, 72 and 76 of the Act and the union seeks relief under sections 11 and 96. The relevant portions of these sections read:

7. Every person is free to join a trade union of the person's own choice and to participate in its lawful activities.

8. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

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

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

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

77. (1) Upon the application of a trade union, the Board may order another representation vote in the following circumstances:

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

79. The result of the contravention is that a prior representation vote did not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

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

(2) Upon the application of an interested person, the Board may order another representation vote in the following circumstances:

2. The result of the contravention is that a prior representation vote did not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

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

(4) Subsections 10(1) and (2) do not apply with respect to a prior representation vote if a new representation vote is ordered under this section.

(5) Without restricting its powers under section 96, the Board may do anything to ensure that a new representation vote ordered under this section reflects the true wishes of the employees in the bargaining unit.

96. (1) The Board may authorize a labour relations officer to inquire into any complaint alleging a contravention of this Act.

(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of; or

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally.

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

(8) The Board shall not, under this section, certify a trade union as the bargaining agent of employees in a bargaining unit.

The criminal records of Kuti and Kodi

7. On more than one occasion during the course of the hearing employer counsel sought to have the criminal records of Kuti and Kodi excluded from the evidence. At the hearing on January 25, 2000, I allowed the records to be admitted pending a final determination of their relevance. I made clear that, if the records were to be admitted, they would not be used for the purpose of showing, supporting or establishing that Kuti and Kodi had a propensity to commit criminal acts or that they might be more disposed to do so. The criminal records would be admitted only if they were germane to the knowledge and perception of the employees and/or the employer.

8. There was evidence by a police officer, Detective Constable Glen Furlong, who specializes in crime among the Tamil population of Greater Toronto, that Kuti and Kodi were known members of a Sri Lankan gang, whose conduct has been the subject of much criminal investigation. This fact is relevant if the employees affected by the application had knowledge of this when Kuti and Kodi acted as they did at their place of work.

9. Following the incidents of intimidation described below, a meeting was held between the employer’s Director of Security Investigations, Mr. Bryce Miller, and Baron Metals’ Sri Lankan employees. [The phrase “Sri Lankan employees” was used by the parties and the witnesses to describe these employees of the company who are of Sri Lankan origin. They reside in (and are likely citizens of) Canada. Hence, they are Canadian employees of Sri Lankan origin. However, for ease of reference, I will do as the parties and the witnesses did and refer to them as “the Sri Lankan employees”.] That meeting is more fully described below. Mr. Miller kept notes. One of the Sri Lankan employees is recorded as saying that Kuti and Kodi were known street gang members. The point is emphasised later in Mr. Miller’s notes: “Kuti and Kodi are known in the Sri Lankan community as gang members”. In evidence at the hearing, Mr. Pathmanathan Nagarajah, an employee of Baron Metals, also confirmed that he was aware, at the time he was intimidated, that Kuti and Kodi were members of a Sri Lankan gang.

10. This evidence suggests that Kuti and Kodi had a notoriety in the Sri Lankan community and among the Sri Lankan employees of Baron Metals at the time the acts of intimidation were committed. As will become clear in the narrative below, the employees who were threatened by Kuti and Kodi were actually frightened by the experience. The criminal records and the evidence of Detective Constable Furlong corroborate the impression held by the Sri Lankan employees at the time (or at least by some of them) that Kuti and Kodi were members of a violent criminal gang. The criminal records of Kuti and Kodi do not themselves indicate that they are members of a criminal gang; that fact was established by the evidence of Detective Constable Furlong. He explained the nature of the criminal conduct of the gangs, and how most of the gang violence is directed at rival gang members. He told of how the gang members seldom, if ever, testify against their rivals – there is a bond of silence in the face of a prosecution – with the result that although the gang members are often charged with offences, they are seldom convicted.

11. It is clear from other evidence presented that employees were aware that Kuti and Kodi were involved in a gang. Somewhat surprisingly, given his general lack of interest in the machinations between the employees, Mr. Viktor Bregar, the door department supervisor, stated in evidence that he was aware at the time that Kuti and Kodi were associated with a gang.

12. The criminal records of Kuti and Kodi serve to corroborate the evidence of Mr. Sathasivam, one of the union’s witnesses. He testified that Kuti told him he was a member of a gang and a criminal and conveyed that he was not afraid to carry out a criminal act. The criminal records add credence to Mr. Sathasivam’s account that Kuti made that statement to him. They are therefore relevant to establishing the truth of Mr. Sathasivam’s evidence. Nonetheless, the evidence of the criminal convictions of Kuti and Kodi assumed less importance when it became clear that the account of Mr. Sathasivam’s conversation with Kuti was not to be contradicted. So, although relevant, evidence of the criminal convictions does not affect any of the findings of fact.

Brief Background

13. The union first applied to be certified as the bargaining agent for the bargaining unit of employees affected by these applications on September 19, 1997 (in Board File 2293-97-R). The union was unsuccessful in the representation vote. It was barred from bringing a fresh certification application for a period of one year. On November 2, 1998 the union brought a fresh certification application (in Board File 2607-98-R). The employer raised a section 8.1 objection to the application, disputing the union’s estimate of the number of employees in its proposed bargaining unit. On November 5, 1998 the union was given leave by the Board to withdraw the application. The union filed the current certification application on the next day, November 6, 1998. Notice of the union’s certification applications in November 1998 were posted at the workplace on November 2 and November 6 respectively.

14. At times material to the applications, Baron Metals employed approximately 90 employees. It is in the business of producing steel doors and frames. It is a member of the Royal Group of companies.

15. Besides Kuti and Kodi, the individuals who played a role in the events described herein are the following. The employees who were intimidated by Kuti and Kodi are: Mr. Thadchanamoorthy Perampalam (known as “Tanam”), Mr. Nagarajah (“Nathan”), Mr. Lingeswaran Perampalam (“Lingum”, the brother of Mr. T. Perampalam) and Mr. Vigneswaran Sathasivam (“Manny”). They are Tamil speaking, of Sri Lankan origin. For management there are: Mr. Bregar, as mentioned, the supervisor of the door department; Mr. Bryce Miller, described above; Mr. Steve Smith, the Human Resources Manager of Baron Metals; and Mr. Don Hearns, the Director of Human Resources of Royal Group Technologies Ltd., the holding company of Baron Metals.

16. Kuti and Kodi, although centrally involved in this case, were not called by either party. As a consequence, the evidence of the union’s witnesses regarding conversations they had with Kuti and Kodi is uncontradicted. None of that evidence was challenged and the other challenges to the credibility of the union’s witnesses were not such as to vitiate their evidence as a whole or to cast serious doubt on their accounts of what transpired between them and Kuti and Kodi. To the extent I have doubts regarding their evidence, that is dealt with below.

17. Mr. Nick Siragusa, the President of Baron Metals, did not testify. He is a background figure in some of what transpired. Counsel for the employer suggested his testimony was not necessary as he could add nothing to what other witnesses had said.

What happened between November 6 and November 16, 1998?

18. Once the union’s certification application was filed and notice of it was posted at Baron Metals, the expectation was that the vote would occur on November 13, 5 days after the filing of the application. Accordingly, the events which occurred between November 9 and 11 occurred in the context of an expectation that the vote would be on the 13th. The Board’s decision ordering the vote occurred on November 12, after which it became clear that the vote would be on Monday, November 16.

19. On Thursday, November 5, 1998, the day before the union filed this certification application, Baron Metals engaged Kuti and Kodi into its service. They worked on Friday, November 6, 1998, on the evening shift, starting at 4:00 p.m., apparently without incident. No details were presented in evidence regarding their work on November 6. On Monday, November 9, Mr. Smith called Mr. Bregar to his office. Mr. Bregar was introduced to Kuti and Kodi. Mr. Smith said they were new helpers. Mr. Bregar then showed them the washroom, the change-room, the first aid station. Mr. Bregar then introduced Kodi to the lead hand of the assembly line and to Mr. T. Perampalam, who worked there. Kodi was to work there. He was assigned to helping with the spot welding operator. Kuti was assigned to the parts department. Mr. Bregar introduced him to the senior operator and to Mr. Sathasivam, who worked there.

20. Kuti and Kodi were to work the day shift, 7:30 a.m. to 4:30 p.m., Monday to Thursday, 7:30 a.m. to 4:00 p.m. on Friday.

21. Mr. T. Perampalam, Mr. Nagarajah, Mr. L. Perampalam and Mr. Sathasivam are all long-term employees. Mr. T. Perampalam and Mr. Sathasivam were inside organizers for the union in its 1998 campaign for certification. They solicited support for the union and, in their own time and off company premises, they encouraged their fellow employees to sign union cards. Kuti and Kodi were new hires. They were not known personally to Mr. T. Perampalam, Mr. Nagarajah, Mr. L. Perampalam and Mr. Sathasivam before November 6, 1998. They were not approached to sign union cards. (The union cards had already been submitted to the Board as proof of membership evidence by the time Kuti and Kodi were hired). The communication between Kuti and Kodi and the other Sri Lankan employees was initiated by Kuti and Kodi.

The intimidation of Mr. Sathasivam

22. Mr. Sathasivam works in the parts department, on a tapping machine. He has long service with the company, like the other union witnesses. He started there in 1988.

23. As stated, on Monday, November 9, at about 9:00 a.m., Mr. Bregar, Mr. Sathasivam’s foreman, introduced Kuti to him as a countryman, and asked him to train Kuti, to show him how to put dust covers on the door hinges. Mr. Bregar disputes that he asked Mr. Sathasivam to do the training, but he admits introducing Kuti. Mr. Sathasivam is the senior operator in the parts department, not the lead hand. Mr. Bregar says that he asked the lead hand to train Kuti.

24. Mr. Sathasivam says that Kuti spoke to him several times during the day, when Kuti was present in the parts department. According to Mr. Sathasivam, Kuti spent much of his time on his cell phone in the washroom, and seemed little interested in his work. Mr. Sathasivam claims to have conducted some surveillance of Kuti’s activities and cell phone calls. He says he was in charge of Kuti and needed to be satisfied he was doing his work. Mr. Bregar disputes that Mr. Sathasivam was authorized to supervise employees. Whether or not that was so, it seems clear that Mr. Sathasivam kept an eye on Kuti during the course of the working day, and eavesdropped on his cell phone calls, without actually hearing the content.

25. Kuti asked Mr. Sathasivam whether “things were okay in the factory”, whether he had any problems, what the wages were and other such questions associated with conditions of employment. Mr. Sathasivam says that he told Kuti there were no problems at work, and he reminded Kuti that conversations were normally restricted to the lunch break. Mr. Sathasivam says that he went to Mr. Bregar after the lunch break to complain that Kuti was not interested in his work and seemed to spend most of his time on his cell phone. He says that Mr. Bregar responded by saying that he (Mr. Sathasivam) should not worry about this, and just carry on with his job. Mr. Bregar has no recollection of this conversation. Kuti left work on Monday, November 9, at 12:45 p.m.

26. Kuti arrived late at work on Tuesday, November 10, between 8:30 and 9:00 a.m. He worked only until about 2:30 p.m. Kuti was again talkative, asking Mr. Sathasivam about work, the number of Sri Lankan employees, the wages, and inquiring of any problems. He asked whether there was a union in the factory. Mr. Sathasivam says he responded by saying there were no problems and the Sri Lankan employees were happy with everything. Kuti then continued, saying that it appeared the Tamils are responsible for promoting the establishment of a union in the company. He added that he knew who the four Tamils were. Mr. Sathasivam did not respond. Kuti said Mr. Sathasivam knew who the four were. Kuti added that he would like to speak to the four individuals because they would need to see things his way or they might have to be forced to do so. Kuti then threatened that if the union got established in the company, he would not hesitate to do anything, even kill people, on behalf of the company.

27. On the next day, Wednesday, November 11, Kuti was again late for work. Mr. Sathasivam approached him. He reminded Kuti that he had said that four Sri Lankan employees were involved in union matters and he asked Kuti for their names. Kuti said he would get the names. He told Mr. Sathasivam to wait a moment. He then left the parts department and walked to the door which leads to the main office area, which is approximately 80 metres from the parts department. He entered the door leading to the main office. Mr. Sathasivam watched him do so. Five to ten minutes later Mr. Sathasivam saw Kuti return from the office door to the main factory area, and from there to the stores department. He had with him a piece of white paper with blue lines with the hand-written names, addresses and telephone numbers of himself, Mr. T. Perampalam, Mr. L. Perampalam and Mr. Nagarajah. His own information (and that of the others) was accurate. Mr. Sathasivam says the paper had the company’s letterhead on top, with Baron Metals’ address. I doubt this, for reasons explained below. What is interesting about Mr. Sathasivam’s phone number is that it appears under his first name in the Toronto telephone directory, “Vigneswaran”, under his wife’s name, Selvarani, not his own. His own name does not appear in the telephone directory. Hence Mr. Sathasivam’s address and telephone number could not have been extracted from the phone book.

28. Mr. Sathasivam was shocked to see the information. He told Kuti that his own name appeared on the sheet, yet he was not involved with anything to do with the union. (This was, of course, not true). Kuti responded by saying there might have been an error and he would go and check. He then left the parts department with his sheet of paper and returned to the office. Not long afterwards Kuti came back to Mr. Sathasivam and told him that his name was there by mistake and that he (Kuti) had the power to remove it from the list.

29. The conversation between Kuti and Mr. Sathasivam continued. Kuti said that if the four named on the sheet refrained from voting in the upcoming union certification ballot, he would get money for them from the company. Kuti continued that he had been sent to speak to the four individuals by “the big boss” and he wanted the four to sign the sheet of paper to confirm they would not turn up for the vote. Kuti then unbuttoned his shirt and showed Mr. Sathasivam gunshot wounds to his chest. Mr. Sathasivam told him not to do so, saying he did not want to see that. Kuti explained that he was a member of a gang, he was a criminal and if Mr. Sathasivam went to vote on the day of the ballot he would shoot and kill him. He told Mr. Sathasivam to tell the other Sri Lankan employees. Mr. Sathasivam responded that he would not do so. Kuti then said that Mr. Sathasivam must do as he asked because, if the union were to win the vote, what he mentioned would happen. Kuti then went directly to speak to Mr. T. Perampalam.

30. It seems there was a shift in Kuti’s threats. Initially the requirement was that Mr. Sathasivam not vote; later it was that the union lose the vote. The former threat was not repeated to the others who were intimidated. The demand of them was that the union lose the vote.

31. Mr. Sathasivam says he was extremely frightened by the encounter with Kuti.

The intimidation of Mr. T. Perampalam

32. Mr. Bregar asked Mr. T. Perampalam to show Kodi how to off-load the doors which pass through the door assembly line, and to attach hinges to them. Mr. T. Perampalam did so and he and Kodi worked together without incident on Monday morning, November 9. The lunch break is between 12:30 p.m. and 1:00 p.m. Kodi did not return after lunch. He punched out of work at 12:45 p.m.

33. Mr. T. Perampalam next saw Kodi at about 8:30 a.m. the next morning, Tuesday, November 10. Kodi arrived at the factory about an hour after the usual starting time. Kodi worked on the assembly line until 2:30 p.m., the time of the 15 minute afternoon break. He did not return thereafter.

34. Kodi returned to the factory on Wednesday, November 11 between 8:30 and 9:00 a.m. He spoke to Mr. T. Perampalam, asking him how long he had been working at Baron Metals. Mr. T. Perampalam replied he had been there for the past 9 to 10 years. Kodi asked him if he had any problems. Mr. T. Perampalam replied that he had no problems he could think of.

35. There was no further conversation until after the lunch break, at about 1:00 p.m. Kodi was accompanied by Kuti, whom Mr. T. Perampalam had not met previously. Mr. T. Perampalam was off-loading doors. They asked Mr. T. Perampalam of the volume of work on the assembly line. Mr. T. Perampalam suggested in evidence that Mr. Bregar slowed down the machine to allow Kuti and Kodi’s conversation with him to occur. I find this evidence to be untrue. I am satisfied, for reasons which follow, that Mr. Bregar did not deliberately slow down the machine.

36. Kuti tapped Mr. T. Perampalam on the shoulder and said, “come, we’ll go out and talk”, indicating an intention to have the discussion outside, away from the noise of the assembly line. Mr. T. Perampalam replied, “I’ve been here for 10 years, why should I go out and talk with you?” He was referring to the fact that he was a long standing employee and he did not see how two new employees could require him to come outside, during working hours, and talk. Kuti said that he had to come with them. Mr. T. Perampalam asked if they had the necessary permission to take him outside during working hours. Kuti said that they had the necessary permission and Mr. T. Perampalam should go out with them.

37. Mr. T. Perampalam says that he spoke to Mr. Bregar and told him that Kuti and Kodi wanted him to go outside with them. According to Mr. T. Perampalam’s evidence at the hearing, Mr. Bregar asked rhetorically, if they are asking you to go outside, why don’t you go with them? Mr. T. Perampalam did not leave his place of work. Kuti then said that if he did not wish to leave the premises, they could go elsewhere in the plant and talk. Mr. T. Perampalam then accompanied Kuti and Kodi to the storeroom, which was quieter. When they reached there, and no-one else was around, Kuti said that the administration (referring to management) wanted to find out how the union had come into the plant. Mr. T. Perampalam said that he did not know anything about that. Kuti said that he had a list which contained four Sri Lankan names with their addresses and phone numbers. Kuti explained that the list had been given to him and Kodi by the administration. He said it seemed (to management) that those on the list were the four individuals who were interested to bring the union into the workplace. Mr. T. Perampalam asked to see the list. Kuti showed it to him. His name appeared first on the list, followed by Mr. Nagarajah, Mr. L. Perampalam and Mr. Sathasivam. Besides each name was the address of the person and his phone number. The information was accurate. Mr. T. Perampalam says that the list was written by hand in ink on blue lined paper with Baron Metals’ logo at the top.

38. The employer’s witnesses testified that Baron Metals has no printed blue lined paper with its logo. No mention was made of the logo at the meeting between the Sri Lankan employees and Mr. Miller on Thursday, November 12, only of the lined paper. Mr. Miller says that when he asked the employees at his meeting what the paper looked like, Mr. Sathasivam pointed to the writing pad he was using and said it was like that. Also, in Mr. T. Perampalam’s written statement to the police of November 12, there is no mention of the company’s logo. It seems most unlikely that the lined paper had a company logo on it. I take this to be a subsequent embellishment in Mr. T. Perampalam’s and Mr. Sathasivam’s evidence.

39. Upon showing the list to Mr. T. Perampalam, Kuti said, with reference to the upcoming representation vote, that Mr. T. Perampalam should vote for the company. He added, “if the company wins, no problem. If the company loses, you will not live thereafter. You will not be alive. Tell the others also”, referring to the other Sri Lankan employees. Kuti continued, “You don’t know me. I will do as I’ve said”. In Mr. T. Perampalam’s almost contemporaneous written statement to the police, he said Kuti also stated that if the union were to win the vote, the company would close down the plant within a month. Kuti then said, “If the union wins you will be killed outside”. He added, “we won’t do anything now, but if the union wins we will do it”.

40. Mr. T. Perampalam responded by saying that he did not have any problem at work, he had been working for some time for the company and they paid him well and gave him vacation benefits. Kuti then said that he (Mr. T. Perampalam) did not need to be at work for the week before the voting occurred, adding, “I will get you double pay for the days you stay away from the workplace”. Mr. T. Perampalam replied that his work was important to him and he would never stay away from work. Kuti then said that was okay, as long as Mr. T. Perampalam told the other employees to vote in favour of the company. Kuti then told Mr. T. Perampalam to go to Mr. Nagarajah to tell him to come and speak to them (Kuti and Kodi). Mr. T. Perampalam went to Mr. Nagarajah and told him what Kuti had said. Mr. Nagarajah said he was not going to speak to them. Mr. T. Perampalam then returned and advised them of Mr. Nagarajah’s response.

41. Mr. T. Perampalam says he was frightened by what occurred, worried that he might be the subject of an attack by Kuti or Kodi.

42. Mr. T. Perampalam went to Mr. Bregar and told him that Kuti and Kodi had taken him away from his workplace and they had threatened him. He accused Mr. Bregar of being aware of this and doing nothing to help him. Mr. Bregar responded that he knew nothing of that and he advised Mr. T. Perampalam to see Mr. Smith.

43. While preparing to go to see Mr. Smith, Mr. Siragusa came near to Mr. T. Perampalam. Mr. T. Perampalam told Mr. Siragusa that Kuti and Kodi took him and spoke to him. He asked Mr. Siragusa, “don’t you chaps have any confidence in us?” Mr. Siragusa replied that he did not know what Mr. T. Perampalam was talking about and that if he had a problem he should speak to Mr. Smith. Mr. T. Perampalam went to Mr. Smith and told him what had happened. Mr. Smith said he would investigate.

44. Mr. T. Perampalam told other Sri Lankan employees of what had happened. They were outraged and a group of them met at the door assembly machine, speaking of the matter.

45. Mr. Smith went to look for Kuti and Kodi. Despite a thorough search he could not find them.

46. Mr. Smith came to the group of Sri Lankan employees and arranged to meet with them in the storeroom.

The intimidation of Mr. Nagarajah

47. Mr. Bregar introduced Kodi to Mr. Nagarajah when he started work on Monday, November 9, 1998, at about 9:00 a.m. There was no discussion or contact between Mr. Nagarajah and Kodi until Wednesday, November 11.

48. The intimidation of Mr. Nagarajah occurred almost immediately after that of Mr. T. Perampalam. When Mr. Nagarajah refused Kuti and Kodi’s request, conveyed through Mr. T. Perampalam, that he go and talk to them, they came to him. As with Mr. T. Perampalam, Kuti and Kodi asked Mr. Nagarajah to accompany them outside. Mr. Nagarajah said that he could not leave his work station during working hours. They replied that they had spoken to the manager and there was no problem with Mr. Nagarajah leaving work then. He had permission to accompany them outside. He refused. He said he would talk to them at 4:30 p.m., when his work was over. They persisted, but Mr. Nagarajah would not leave his workplace. Kuti then said to Mr. Nagarajah that there were to be elections “for this union thing”, and “if by any chance the union wins, we will shoot you”. Kodi had a cell phone with him. Mr. Nagarajah asked if he could have his cell phone number so that he could phone him and discuss the matter after work. Kodi gave Mr. Nagarajah the cell phone number, which Mr. Nagarajah later gave to the police. Mr. Nagarajah reported the threats to Mr. Bregar.

49. Mr. Bregar says that immediately upon his learning of the threats that had been made to the employees under his supervision he went to look for Kuti and Kodi. He went to the employees’ change-room and he checked to see if Kuti and Kodi had punched out at the punch card machine. They had not. (They never did punch out on Wednesday, November 11. It seems that after intimidating the employees as described, they merely left the workplace).

The intimidation of Mr. L. Perampalam

50. Mr. L. Perampalam is a welder. His job is cutting doors. Like the others approached by Kuti and Kodi, he has over 10 years service with Baron Metals. Like his brother, Mr. T. Perampalam, Mr. L. Perampalam works in the doors department under the supervision of Mr. Bregar. Kodi was introduced to Mr. L. Perampalam by Mr. Bregar on Monday, November 9.

51. Mr. L. Perampalam had no contact with Kuti and Kodi until the afternoon of Wednesday, November 11. They approached him not long after they had spoken to his brother, who had come to him and told him what they had said to him. He was therefore forewarned of their intentions. They said they did not want to repeat what they had said to his brother, he knew what they had said to him and they wanted him (Mr. L. Perampalam) to go home and think about what they had said, and do what was necessary. Mr. L. Perampalam understood from this communication that he was being urged not to vote for the union in the upcoming representation vote.

52. Mr. L. Perampalam was extremely scared by Kuti and Kodi. He went to Mr. Bregar and complained to him. Mr. Bregar said that he knew nothing about it and said that he could go and talk to Mr. Smith. Mr. L. Perampalam went to Mr. Smith’s office, but he was not there. He returned to Mr. Bregar to tell him that, and Mr. Bregar told him to return to work. Not long afterwards Mr. Siragusa passed by and Mr. L. Perampalam went to him, and complained that he had worked for the company for more than 10 years and there had been no problem, and now there were two people who had come in to frighten him. Mr. Siragusa shrugged his shoulders and said he knew nothing about that, and suggested that Mr. L. Perampalam speak to Mr. Smith.

53. Mr. L. Perampalam went back to Mr. Smith. He said he had nothing to do with the union (he was not one of the inside organizers) and yet, he complained, he was still being threatened. Mr. Smith said that he did not hire the two people, and that they must have been hired by the office (that was not accurate, in fact). Mr. Smith told Mr. L. Perampalam to return to work and he would look into the matter.

54. Soon after talking to Mr. Nagarajah and Mr. L. Perampalam, which was shortly before the afternoon break at 2:30 p.m., Kuti and Kodi left the workplace. As stated above, they never returned.

55. Mr. Smith came to Mr. L. Perampalam at his workplace and asked him if he had seen Kuti and Kodi. Mr. L. Perampalam could not help him. As mentioned, Mr. Smith then scoured the premises of the factory looking for Kuti and Kodi, without success. He summoned a meeting of all of the Sri Lankan employees soon afterwards.

56. Mr. Smith then went to Mr. Siragusa and told him what had happened. Mr. Smith said that it was not possible to find Kuti and Kodi and to get their side of the story, they had obviously walked off the job without permission and he recommended they be terminated. Mr. Siragusa agreed. Mr. Smith then went and prepared their termination letters. He advised payroll that they had been terminated. Their final salary cheques were prepared with their Records of Employment and mailed to them. The cheques were subsequently deposited.

57. All four Sri Lankan employees who were approached by Kuti and Kodi voted in the representation vote on November 16. How they voted was not revealed.

General observations concerning Kuti and Kodi

58. All of the employees who testified spoke of the apparent freedom of movement of Kuti and Kodi. They seemed to come and go as they liked. Besides their work on November 6 before they made contact with Mr. Sathasivam, Mr. T. Perampalam, Mr. L. Perampalam and Mr. Nagarajah, they worked for the company on only 3 days. During that period they arrived at work late, they left when they wanted and they did not complete a single full day of work. Kuti and Kodi’s time cards show that on Monday, November 9, they worked from 8:20 a.m. to 12:45 p.m.; a total of 4.15 hours, on the 7:30 a.m. to 4:30 p.m. shift. On Tuesday, November 10, they worked from 7:40 a.m. to 3:30 p.m., 7.15 hours. On Wednesday, November 11, they started at 7:43 a.m. and they finished at some time in the afternoon. The employer estimates that they left at about 3:00 p.m. That time was written into their time cards by Mr. Bregar. Each day they both clocked in and left at the same time. This corroborates the union’s witnesses’ evidence of the concerted nature of their conduct. Mr. Bregar recalls having given them both permission to leave early on November 9 and 10, for personal reasons. He admits he regarded it as rather odd that both should have left early together on each day, and he was not happy with it, but he consented because the one claimed the other had to do the driving.

59. While at work, according to the employees who testified, they moved around apparently without restriction or limitation. It seems clear that employees do not require actual permission to leave their work stations, and they may move around without prior approval, yet Kuti and Kodi seem to have done so significantly more than other employees. In Kuti’s case it seems he spent relatively little time actually working, and much of his time on his cell phone, away from his place of work.

60. Detective Constable Furlong testified that Kuti and Kodi were known members of the Vellvediturai (or VVT) gang. The other principal Tamil gang in the Toronto area is the AK Kannan gang. There are sub-groups within these gangs. Both gangs have been involved in various serious criminal acts, including murder, attempted murder, serious assaults, extortion, kidnappings, frauds, and drugs and weapons offences. Most of their violence is with rival Tamil gangs. The weapon of choice is the sawed off shotgun and the common method of attack is a drive-by shooting, from a stolen vehicle, at the gathering place of the rival gang. In Detective Constable Furlong’s written report he records the chronological order of gang activity in the period 1997 to mid-1999. Kuti (who offered to show Mr. Sathasivam his wounds) was the victim of an attempted murder on March 3, 1998. The report records his name, with the following comment: “VVT victim – believed AK Kannan shooters”. Kuti was shot in the back by a shotgun. In Detective Constable Furlong’s experience the various gang members do not testify against each other, so convictions are not common for the crimes they commit. Kuti refused to co-operate in the investigation of his attempted murder.

61. Detective Constable Furlong testified that Kodi was charged with three counts of attempted murder and illegal firearm possession. The victims were members of the AK Kannan gang. Kodi had also assaulted two police officers from the Peel Region. Detective Constable Furlong said that members of the gangs try to get employment together for the same employer. He mentioned Premdor, among others, as a company where members of the gang had sought and were employed.

62. There was no evidence presented to suggest any knowledge by members of the management of Baron Metals of Kuti and Kodi’s associations.

63. Mr. Rex Mouland, the Group Controller of Premdor Inc., testified for the company. Premdor has no connection with Baron Metals or with the Royal Group. He explained that Kuti was employed by Premdor at the time of the events described herein. He had been employed from April 20, 1998. By November 1998 he was a permanent employee. On Monday, November 9, Kuti was working the 4:30 p.m. to 1:30 a.m. shift at Premdor. He punched in at 3:59 p.m. that afternoon. This suggests that he left his work early at Baron Metals in order to be at his regular job at Premdor in time to work his regular shift. He punched out at 1:32 a.m. on Tuesday, November 10.

64. Kuti worked his shift on Tuesday, November 10, punching in 4:27 p.m. (after leaving Baron Metals early) and working until 1:31 a.m. Similarly, on Wednesday, November 11, he punched in at 4:24 p.m. and worked his shift until 1:31 a.m. Kuti was absent from work on Thursday, November 12. That was not explained.

65. The evidence of Kuti’s employment at Premdor strongly suggests that Kuti got his job at Baron Metals for a specific purpose, for a limited duration. He appears to have had no intention of ending his job at Premdor, nor did he. He made sure each day that he was on time for his regular work at Premdor. It is almost as if, once he had done what he planned to do at Baron Metals, he left and continued as before with his regular job at Premdor. I conclude that Kuti’s job at Baron Metals was not meant to be a long-term proposition for him. He could not have sustained his position at Baron Metals in the long term and yet maintained his job at Premdor. The shifts were in conflict during the few days he worked at Baron Metals and he made sure that he did nothing to prejudice his job at Premdor.

The meeting between Mr. Smith and the Sri Lankan employees on Wednesday, November 11, 1998

66. In response to the reports he was receiving from the Sri Lankan employees who had been intimidated by Kuti and Kodi, Mr. Smith summoned a meeting of all of the Sri Lankan employees. They were distraught. They asked Mr. Smith who had hired Kuti and Kodi. He confirmed that he had. They told him of the list. The employees asked how Kuti and Kodi had obtained details of the names, addresses and telephone numbers of four of the Sri Lankan employees. Mr. Smith denied giving the information to them. They complained that they had worked for the company for such a long time, yet two new people were allowed to come in and terrorise them. They asked how this could happen. Mr. Smith replied that the employees did not need to worry because the company had fired them. (Kuti and Kodi had in fact abandoned their jobs. Their being fired was a formal reaction by the company to the reality of their having walked off the job, never to return). The employees then said that, if Mr. Smith had not given the information to Kuti and Kodi, he should summon the police so they could investigate the matter and find out how the information had come into their possession. Mr. Smith responded that he would not call the police, but if the employees wished, they could themselves take up the matter with the police. Mr. Smith said that there would be no further problem from Kuti and Kodi because they had been fired.

67. Mr. Smith told Mr. Siragusa what had transpired at the meeting.

68. After the meeting Mr. T. Perampalam, Mr. Nagarajah, Mr. Sathasivam and Mr. L. Perampalam went to the police to report the intimidation. They were advised they were at the wrong police station. They were given the address of the police station which would deal with their report. They decided to go there the next day.

69. At about 4:15 p.m. on the afternoon of Wednesday, November 11, Mr. Smith contacted Mr. Miller and told him what had happened. Mr. Miller determined that the persons who had been threatened were long-serving employees and those who had threatened them were probationary employees. Mr. Smith told Mr. Miller that Kuti and Kodi had been dismissed. Given the nature of their misconduct – referred to in Mr. Miller’s contemporaneous report as threatening, intimidating or coercing fellow employees – Mr. Miller said he would issue notices under the Trespass to Property Act in respect of Kuti and Kodi, which he did at 4:50 p.m. that day.

70. Mr. Miller and Mr. Smith went to look for the employees who had been intimidated, but by that time they had already left. Mr. Miller arranged with Mr. Smith to meet with the Sri Lankan employees the following morning.

The visit to the police on Thursday, November 12, 1998

71. Mr. T. Perampalam and Mr. Nagarajah had permission from management to go to the police station to report what had happened. They went to the police on the morning of November 12 and missed work on that day. They were given sheets of paper and told to write statements of what occurred. They consulted the union, who arranged for an interpreter to translate their statements from Tamil to English. Those statements were written on November 26 and taken to the police. The statements made are largely consistent with what appears above. Although a police investigation notionally continues, no arrests have been made and Kuti and Kodi have not been prosecuted for threatening violence.

72. Mr. T. Perampalam and Mr. Nagarajah did not therefore attend the meeting which took place on the company’s premises between Mr. Miller and the Sri Lankan employees on the morning of November 12.

The meeting between Mr. Miller and the Sri Lankan employees on Thursday, November 12, 1998

73. All of the Sri Lankan employees at work were called to the meeting. Of those who had actually been intimidated, Mr. Sathasivam and Mr. L. Perampalam were at the meeting. There are some inaccuracies in Mr. Miller’s record of attendance. He has Mr. Nagarajah present when he was not, and he has Mr. L. Perampalam recorded as absent, when he was present. There is no explanation for these errors. Present initially from management were Mr. Smith, Mr. Siragusa, Mr. Alan Dias, the company’s accountant, and Mr. Miller. Mr. Miller asked what had happened. Mr. Sathasivam told of his experience. While doing so he broke down in tears. Mr. Sathasivam mentioned how Kuti had obtained the list from the office. Mr. Sathasivam says that he asked Mr. Siragusa who had given the list to Kuti. At that point Mr. Miller said that he wanted Mr. Smith, Mr. Siragusa and Mr. Dias to leave because he wished to speak to the employees alone, and he wanted them to be able to express their views freely.

74. In direct evidence, Mr. Miller gave a different account of the moment he asked the members of management to leave the meeting from the account he conceded under cross-examination. His contemporaneous note of the meeting is consistent with his evidence-in-chief. It states that he asked the employees what had happened. He gained the impression they were reticent to speak in front of their managers and he then asked the managers to leave so that the employees could speak freely. Under cross-examination, Mr. Miller conceded that he might have asked the members of management to leave when the issue of the list of names was raised. He explained that he felt better to have the members of management out of the room if allegations were to be made against them. The union’s counsel suggested that Mr. Miller intervened to protect those members of management he asked to leave from any inquiry as to the origin of the list. I accept this as a possibility, although I am not willing to conclude it was Mr. Miller’s motivation. More likely, Mr. Miller’s motivation was as appears in his contemporaneous note, viz. that he thought the employees seemed hesitant to speak with members of their management in the room and he asked them to leave for the employees to speak freely of what had happened.

75. The meeting was concerned chiefly with the employees explaining that Kuti and Kodi were gang members and that those threatened by them were frightened that they would be attacked in their homes. Mr. Miller was somewhat defensive in the meeting. The employees were trying to explain that the intimidation was because of the union organizing that was taking place (that had been expressly stated by Kuti and Kodi as the reason), and Mr. Miller responded by saying that he was not there to discuss union activity. When mention was made again of the union, Mr. Miller forestalled discussion, pointing out that he did not intend discussing the union. He said that was a matter for the employees themselves to decide. Mr. Miller’s guardedness was manifest too in dealing with the list which Kuti and Kodi had shown to Mr. Sathasivam and Mr. T. Perampalam. The employees said that management had given the list to Kuti and Kodi. Rather than pursuing the employees’ perception of where the list had originated, and investigating that, Mr. Miller repeatedly sought to suggest that the list might have been obtained from other employees. Somewhat surprisingly, given that Mr. Miller’s role in the Royal Group is to conduct security investigations, particularly of criminal or improper conduct, he made no follow up to determine where the list had originated. Mr. Miller explained that he did not regard himself as conducting an investigation. He thought Mr. Smith was doing that. In his evidence, Mr. Smith said that he thought any investigation would be done by Mr. Miller. (This was despite the evidence of Mr. Hearns who told Mr. Smith to do a complete and thorough investigation into what had occurred). As a consequence, no investigation took place. Mr. Miller saw his role as advising the employees of their legal rights to take up the matter with the police. I conclude that Mr. Miller’s involvement was not to conduct a real investigation into what happened, to get to the bottom of the matter. He sought to understand what the employees said had happened, and to determine whether the company was in any manner at risk.

76. The employees said to Mr. Miller that they wanted the police called, so that the intimidation could be investigated. Both Mr. Sathasivam and Mr. L. Perampalam say that Mr. Miller said that he knew a police officer who could help and he would get in touch with him. Mr. Miller denies this. He says that he told the employees that he would not himself summon the police because only the people who were actually threatened could make the complaint, and that he and the company would co-operate with any police investigation. I find Mr. Miller’s explanation to be more likely. Some of the communication between Mr. Miller and the Sri Lankan employees occurred through an interpreter. One of the Sri Lankan employees acted as interpreter, translating English to Tamil and vice-versa. Some nuances might have been lost in translation. More importantly, though, both Mr. Sathasivam and Mr. L. Perampalam were rather adamant that Mr. Miller did not take any notes of what was said in the meeting, yet from the document produced by Mr. Miller of his record of the meeting, it appears that Mr. Miller did in fact keep notes. This casts some doubt on Mr. Sathasivam’s and Mr. L. Perampalam’s recollections and suggests that they might have been mistaken as regards what Mr. Miller actually said. So, I cannot conclude that Mr. Miller suggested calling his own police contact. What is clear, though, is that Mr. Miller was not prepared to call the police to the factory to investigate the matter, as the Sri Lankan employees wanted. They were dissatisfied by his reluctance and they said they would go to the police themselves. Mr. Miller’s view was that he himself had not been intimidated so he could not lodge a complaint with the police; that had to be done by the employees who were actually threatened.

77. Mr. Miller closed the meeting by explaining that the company would co-operate with any police investigation. He told the employees that the company had issued trespass notices and he asked the employees to notify management if Kuti and Kodi were seen again at the factory premises so they could be arrested for trespassing.

78. After the meeting with Mr. Miller, Mr. L. Perampalam and Mr. Sathasivam went to the police station and made a report of their intimidation.

The probabilities of involvement, if any, by Baron Metals management in the conduct of Kuti and Kodi

79. Baron Metals management became aware of the union’s renewed organizing drive during October 1998. Management was interested to know what the union was saying in its flyers to the employees. Management also wished to know whether there were just a few, or lots of, people involved in the organizing campaign. Mr. Smith advised management to inform the supervisors not to say anything regarding the union, until Baron Metals had taken legal advice. Mr. Smith understood that derogatory comments from management during an organizing campaign could be construed as an unfair labour practice.

80. The Royal Group had conducted some training among the management of its various subsidiaries as to what was a reasonable response by management to a union organizing drive. Accordingly members of management were aware of the limits to management’s free speech and conduct during an organizing drive. A refresher session was held after the union filed its certification application early in November 1998, at which the do’s and don’ts of management’s response were reiterated.

81. Early on in this case, at the employer’s instance, I ruled that the union could not inquire into the attitude of the Royal Group towards trade unions generally and the union specifically. Consistent with that ruling, when the occasion arose, I prevented the union’s counsel from cross-examining the company’s witnesses on those matters. Nonetheless, Mr. Smith explained that he wanted to get a sense of whether the union’s organizing was the effort of a few disgruntled employees or whether it reflected a more widespread dissatisfaction. (It is notable, though not necessarily decisive, that this interest is reflected in the questions which were put by Kuti and Kodi to the Sri Lankan employees they spoke to). Mr. Smith says that he sought to establish what was inspiring the organizing campaign by trying to identify issues which the employees might be unhappy about. He inquired of the foremen if they could recall any employee expressing dissatisfaction. He tried to identify which employees might have some sense of grievance against the company. Mr. Smith did not himself deal with the union’s certification applications. They were handled by Mr. Siragusa, with the company’s counsel.

82. There was some equivocation in Mr. Smith’s evidence as regards the union’s organizing campaign. Initially he said he knew of it through a union pamphlet being distributed, and through rumours. When prompted he mentioned that employees had come to him to tell him they had been approached to sign on with the union, although he could not recall any particular individual’s name. He initially said that he had no contact with the Royal Group head office, and with his indirect superior, Mr. Hearns, although later he admitted he spoke to Mr. Miller to determine if union organizers were allowed on company premises, and he accepts, in all likelihood, he would have spoken to Mr. Hearns. Mr. Smith’s evidence was somewhat guarded and unsatisfactory in this regard.

83. Mr. T. Perampalam says Kuti was taken away by Mr. Bregar to Mr. Smith’s office shortly before Kuti and Kodi together approached him and threatened him in the early afternoon of Wednesday, November 11. Mr. T. Perampalam says also that Mr. Bregar was with Kuti and Kodi before they came to speak to him. Mr. T. Perampalam also suggests that Mr. Bregar fed the steel sheets into the door assembly line more slowly than usual, to enable Kuti and Kodi to speak to him. He claims that Mr. Bregar listened to Kuti’s and Kodi’s conversation with him. This would suggest direct involvement by Mr. Smith and Mr. Bregar in the machinations of the two interlopers.

84. I do not draw this conclusion. I am not convinced that all of Mr. T. Perampalam’s evidence was truthful. Although Mr. Bregar was less forthcoming than Mr. Smith, he projected a credible air of non-engagement in the affairs of the employees. He showed a considerable disinterest in what was going on around him, besides the production of steel doors. For example, his recollection of Kuti and Kodi was that one was tall and one short; and, as he described the situation, he put the tall one on the assembly line because that is a heavier job; and the short one he put in the parts department because that, in comparison, is a lighter job. At the hearing Mr. Bregar admitted that he was aware that the employees had been threatened by Kuti and Kodi, but he was not aware of the nature of the threats and their link to the union’s organizing campaign and its certification application. He learnt this for the first time at the hearing. This showed his remoteness from the issues which dominate this case – the validity of the representation vote, the rights of the union to organize without improper interference, etc. It added to my general impression that Mr. Bregar was no conspirator with Kuti and Kodi in their misconduct.

85. There are inconsistencies in Mr. T. Perampalam’s account of Mr. Smith’s and Mr. Bregar’s alleged involvement. Certain of his allegations are absent from the union’s pleading, which was filed relatively soon after the incidents. In Mr. T. Perampalam’s statement to the police (the most contemporaneous account of the incident, written on November 26, 1998, fifteen days after Kuti and Kodi spoke to him) there is no mention of any meeting between Kuti and Kodi and Mr. Smith. There is mention that Mr. Bregar came to where Mr. T. Perampalam was off-loading the steel doors, where Kuti and Kodi were speaking to him. In the statement Mr. T. Perampalam says that Mr. Bregar did not respond, and walked away, when Mr. T. Perampalam told him that Kuti and Kodi were asking him, during working hours, to go outside. This account differs from Mr. T. Perampalam’s evidence, described above. Had Mr. Bregar been in attendance when Kuti and Kodi were speaking to Mr. T. Perampalam and had he listened to the conversation, he would not have understood what Kuti was saying because he spoke in Tamil, which Mr. Bregar does not understand. The door assembly line is a huge machine, two storeys high, some 130 feet long, and it would not have been possible for Mr. Bregar, standing at his usual spot on the right side of the machine at the top end, to have seen Kuti and Kodi speaking to Mr. T. Perampalam, let alone, given the noise of production, hear them. It is possible that Mr. Bregar left the front of the door assembly machine and came down to where Mr. T. Perampalam was, but it is, I think, unlikely that Mr. Bregar was aware of Kuti and Kodi’s purpose or in any way engaged with them.

86. Mr. T. Perampalam suggested that Mr. Bregar slowed the door assembly machine so that Kuti and Kodi could have a better opportunity to speak to him. That is not likely. The door assembly line works at a fixed speed. The number of doors produced depends upon the speed at which the metal skids are fed. The machine can take 100 skids per hour. If a skid is wrongly placed or defective, some time will be lost straightening or removing it from the line, but otherwise the skids will move along while the line is in motion. If there are no skids being fed, or if a new gauge is being fitted for a different size of door, Mr. Bregar will turn off the line. He will also turn off the machine if Mr. T. Perampalam indicates to him, by banging loudly on the skids, that he needs extra time to take off the accumulated, pressed doors from the end of the line. This means that the line is either operating at its usual speed, or it is still, when a new gauge is being fitted or when Mr. T. Perampalam needs to clear the line of the doors. I find therefore that Mr. T. Perampalam’s suggestion that Mr. Bregar slowed the machine deliberately, or fed the skids more slowly, to accommodate Kuti and Kodi’s discussion with him, is not believable.

87. Mr. Smith was relatively new to Baron Metals at the time of these events. He worked as Human Resources Manager on a half-time basis (sharing his time with another Royal Group company) until about September 1998, when he took on the job full-time at Baron Metals. He reported to Mr. Siragusa, and indirectly to Mr. Hearns.

88. Mr. Smith was the central figure in the recruitment of new employees for the company during October and November 1998. The recruitment issue was extensively explored in the hearing. The fall is the company’s busy period. In October and November Mr. Smith was engaged in what he described as “panic hiring”. Some of the new employees came from agencies who supply employees to the company, some were referred by other Baron Metals companies, and some came off the street. When the agencies could not supply sufficient employees, for a brief period Mr. Smith introduced a temporary contract to test new employees whose background was unknown. During the company’s heavy recruitment drive Mr. Smith informed Mr. Hearns of Baron Metals’ staff shortage and, on October 29, 1998, Mr. Siragusa sent a memo to Mr. Hearns recording a discussion between them in which Mr. Siragusa had said that Baron Metals was “in desperate need of additional manpower”. Mr. Hearns conveyed to the other companies in the Royal Group that Baron Metals was hiring. Employees coming off the street may first have gone to the Royal Group head office (which is across the road from Baron Metals) or to other subsidiary companies and been sent on to Baron Metals.

89. During the period from October 5 to November 5, twenty-nine employees were hired. Mr. Smith interviewed those hired. Of them, 10 are still with the company. Kuti and Kodi were among the six employees hired on November 5. Mr. Smith does not know how they came to be hired. He referred to them as “walk-ins”, suggesting (in his evidence in chief) that they came to the factory, filled out an application form on November 5 and he then interviewed and hired them on the same day, effective from the following day, November 6. He says that no one from Baron Metals told him to hire them. He made no background check. They were hired on three months probation. The company does not do criminal record checks – Mr. Smith believed that to do so is unlawful.

90. There is an unusual feature in Kuti’s and Kodi’s application forms. They were completed by Mr. Smith, save for the signature, which is in a different colour ink from a different pen. This means that Mr. Smith sat with Kuti and Kodi and took their details from them, completing their application forms for them. This is different from the other applications which were presented in evidence. Four other employees were hired by Mr. Smith on November 5 (to start on November 6), yet all of their application forms were completed by the individual applicant concerned, and not by Mr. Smith. The forms contradict Mr. Smith’s direct evidence, which was that Kuti and Kodi had completed the application forms themselves. When the originals were shown to Mr. Smith he accepted that the forms must have been completed by him in their presence. He could not give an explanation for why he would have filled out the application forms for them. He said that he sometimes filled out the forms for employees whose English or writing skills were poor. Yet, Kuti was certainly sufficiently literate to complete his own application form. He had himself completed his employment application form at Premdor. He had submitted a résumé when he sought permanent employment there in January 1998. Kodi is recorded as having completed Grade 12 at school. There are virtually no details on Kuti’s application form, just his name and address. There is no reference to previous employment (which contrasts with his application to Premdor which contains a list of previous employers). In contrast, the other four employees, who completed their own employment application forms on November 5, did so without any particular sophistication or literacy skill, yet the forms contain appreciably more personal information. Their forms suggest individuals who do not have notable writing proficiency. In other words, the other applicants showed no greater facility with writing than did Kuti.

91. There is a further surprising feature as regards the recruitment of Kuti and Kodi. Mr. Smith kept detailed “Interview” notes in respect of the other four individuals he interviewed and hired on November 5. The Interview sheet is on a standard form and has the questions, “Tell me about your last job”, “What did you like most about it?”, “What did you not like about it?”, “Why did you leave?”, “If I were to phone your last employer, what do you think they would say about you?”, “What are you looking for in a job?”, “What is the wage range you are looking for?”, “In your opinion, why do some companies experience a higher turnover rate than other companies?”, “Give me an example of a difficult situation you have experienced at work, and tell me how you handled it?” Mr. Smith’s notes of his interview of the four other employees recruited on November 5 were presented in evidence, but he said he did not believe he had interview notes in respect of Kuti and Kodi. None were produced. Mr. Smith’s explanation as to why there were interview notes for the four employees hired at the same time as Kuti and Kodi, yet there were none for them, was that the four employees were the exception, not Kuti and Kodi. He said he did not usually make interview notes, doing so for the four was an experiment. His suggestion was that the lack of interview notes in respect of Kuti and Kodi was more the norm than what occurred in respect of the other four individuals on November 5.

92. After interviewing Kuti and Kodi and signing them into employment, Mr. Smith took them to the Production Manager, Mr. Gord Spears. That is his standard practice. Mr. Spears would have assigned them to work on November 6, and thereafter. On Monday morning, November 9, Mr. Smith brought them to Mr. Bregar, as described. Mr. Smith’s later contact with Kuti and Kodi was only to determine their correct social insurance numbers. The numbers they had given him were not correct. None were recorded in the application forms. He met with them singly in the foreman’s office to determine the correct information.

93. From the information provided in the application and employment forms, it seems clear that Mr. Smith assigns the department in which the particular employee will work. Of the six hired on November 5, only Kuti and Kodi were assigned to the doors department; the other four were assigned to the frame department. Mr. Smith could give no explanation for this selection other than that he does not determine the department to which the employees are assigned; that he says is told to him by Mr. Spears or Mr. Bregar. When questioned further Mr. Smith explained that he would have requests from various departments and he would do the assignment. He could think of no reason why Kuti and Kodi should have been assigned to the doors department and the other four to frames, except as regards one of those employees who preferred to work night shifts.

94. I conclude that there was something peculiar and suspicious about Kuti’s and Kodi’s employment. Mr. Smith did not follow the procedures he used for other employees hired that day. He treated them differently. His explanation of the four employees for whom he made interview notes as being exceptional is not convincing. It does not explain why on that day those four were chosen for interview notes, but not Kuti and Kodi. If one has regard to the order of employment of the six people on that day, two were employed before Kuti and Kodi and two afterwards. Why they were not asked the questions in the interview notes, and the others were, is not explained. Why Mr. Smith would have interviewed the first two on his interview sheet, not interviewed the next two, and then interviewed the last two, was not explained. This certainly creates the suspicion that Mr. Smith was aware that they were recruited for a purpose different from that of the other new hires. Mr. Smith says he could not exactly remember how Kuti and Kodi came to him. He assumed they came off the street. My assessment is that Mr. Smith was either not being forthright when he testified or Kuti and Kodi were referred to him by someone unnamed with instructions to hire them and he then hired them. They were, I determine, fast-tracked into employment, and Mr. Smith did their application forms summarily for them. I do not conclude that Mr. Smith was necessarily a party to any conspiracy, but I do not discount that possibility.

95. There was, I suspect, some embellishment in Mr. T. Perampalam’s evidence as regards Mr. Bregar’s involvement. That was, I suspect, an effort by him to explain to himself how two apparent thugs could have come into the workplace and, apparently unhindered and with impunity, seriously threatened him, almost under the noses of management in respect of an issue which vitally concerned the employer. I do not see the dubious portions of his account as being a deliberate distortion of the facts, but rather an ex post facto rationalisation for what happened to him. One should bear in mind too that Mr. T. Perampalam was testifying more than a year after the events and in the context of the union’s claim of management’s direct involvement in Kuti and Kodi’s malevolence. I accept that Mr. T. Perampalam was intimidated in the manner he described in his testimony; however, there is insufficient evidence to conclude that Mr. Smith collaborated directly with Kuti and Kodi and, although I do not discount the possibility, the same can be said for Mr. Bregar.

96. The action taken by the company – to dismiss Kuti and Kodi after they had abandoned their jobs, to hold meetings with the Sri Lankan employees (first with Mr. Smith, then with Mr. Miller) and to issue trespass notices in respect of Kuti and Kodi – did not satisfy the employees. They were disappointed that the company did not call the police and it was clear to them that there was no serious commitment on the part of the company to find out what lay behind Kuti and Kodi’s behaviour.

97. There were some weaknesses in Mr. Sathasivam’s evidence. He thought Mr. Miller had not kept notes of the Thursday morning meeting, when it appears that he did. He was slightly tendentious in suggesting that an employee who had worked in the parts department, Mr. Selvaratnam Kailayapillai, was terminated for no reason other than to make way for Kuti, despite his being a good worker. Mr. Sathasivam might have gained the impression that Mr. Kailayapillai made way for Kuti because the employee’s temporary contract ended on November 6, and Kuti appeared on the next working day, November 9. However, the company’s evidence established that Mr. Bregar had decided not to keep Mr. Kailayapillai because his work was not up to standard. There was a note from Mr. Bregar on the file of the employee concerning his poor performance, with the additional comment in the October 6, 1998 note that “I suggest we let him go”. It seems that recommendation was acted on when Mr. Kailayapillai’s temporary (3-month) contract came to an end on November 6. Kuti was hired for a different purpose than Mr. Kailayapillai.

98. Mr. Smith suggested that Mr. Sathasivam was involved in the interview of Mr. Kailayapillai and that he was present at Mr. Kailayapillai’s exit interview. None of that was put to Mr. Sathasivam when he testified, and I take no account of it.

99. Mr. Sathasivam denied that October and November 1998 were busy months for the company when the evidence showed that the company was engaged in a flurry of recruitment, or “panic hiring”, as Mr. Smith described it. This and other inaccuracies, although minor on their own, cumulatively suggested that Mr. Sathasivam was capable of some embellishment and where he was directly contradicted, I am inclined to believe the contrary account.

100. Mr. Sathasivam claimed that Kuti told him on more than one occasion that he worked in another factory of the Royal Group of companies. This was to explain why he arrived late at work. As explained, Kuti did have another job, but not at a Royal Group factory. I suspect that Kuti mentioned he worked elsewhere and Mr. Sathasivam embellished his recounting of that information with a view to connecting Kuti with the company. That would have the effect of adding to the impression of management’s involvement in Kuti’s nefarious behaviour.

101. There were other improbabilities in Mr. Sathasivam’s evidence, which dilute its credibility. He said that he was first told by Kuti on Tuesday, November 10, that there were four Sri Lankans who were organizing for the union, and he was allegedly then offered money from Baron Metals management if he did not participate in the upcoming union vote. When asked if he told the other Sri Lankan employees of these things, particularly his fellow inside union organizer, Mr. T. Perampalam, he said, no. That is simply not believable. Something that extraordinary would almost certainly have been conveyed by him to his close colleagues at work. Either the conversation between Kuti and Mr. Sathasivam occurred later than he testified, on Wednesday, November 11, or he told Mr. T. Perampalam and others of it. This adds to my conclusion, as stated, that where I have doubt as to what occurred and there is a version contrary to that of Mr. Sathasivam, the rival version is likely to be the more probable.

102. The union’s case suggested various possible protagonists within management who could have recruited and directed Kuti and Kodi. They were Mr. Smith, Mr. Bregar or Baron Metals’ President, Mr. Siragusa, some or other combination of them, or someone who remains unidentified. Mr. Bregar was a somewhat reluctant witness, rather taciturn and cryptic. Mr. Bregar seemed entirely concerned with production issues. He seems barely to have noticed Kuti and Kodi’s presence and he was more bemused than concerned by the consternation their threats generated among the Sri Lankan employees. There is a troubling feature in Mr. Bregar’s evidence, though. He admitted that, at the time of the events described, he was aware that Kuti and Kodi were associated with a gang. That snippet of information does not sit well with his general demeanour as one unconcerned with the machinations between the employees, and concerned only with production.

103. Mr. Smith was altogether more alert to the issues, more conscious of their implications and seriousness. Despite the inconsistencies and the difficulties I have with Mr. Smith’s evidence, which I have described, he made reasonable concessions during his evidence when that was the sensible response. He struck me as knowing his job, doing it to the best of his ability, and being shocked by the conduct of Kuti and Kodi when it was revealed to him. Although, as Human Resources Manager and the person who signed Kuti and Kodi into Baron Metals’ employment, he would ostensibly be the most obvious person to have been involved with them – in fact, to have engineered their brief campaign of terror – I cannot conclude with any degree of certainty that he played that role. This is not to say that no-one in management did; just that Mr. Smith appears not to have been the protagonist, or to have had any direct involvement in Kuti and Kodi’s reprehensible conduct. If there was a villain among the management, the person must be sought elsewhere. Having said that, there is an aspect of the evidence which does implicate Mr. Smith. That concerns the peculiar circumstances of Kuti and Kodi’s hiring, which I have addressed above.

104. Mr. Siragusa and Mr. Dias work in the main office. Mr. Smith’s office is separately located. Neither Mr. Siragusa, nor Mr. Dias were called as witnesses. The evidence of Mr. Sathasivam is uncontradicted that Kuti went to the office to obtain the list of the four Sri Lankan employees who were later intimidated. Of that list, at least two were the key inside union organizers. Only Mr. L. Perampalam was not involved with the union’s organizing campaign – clearly an error was made in his inclusion on the list if the purpose of the list was, as it appears to have been, to identify the leading union protagonists. Kuti and Kodi could conceivably have obtained the list from someone other than a member of Baron Metals’ management, but it seems most unlikely. Kuti and Kodi started work for the first time on Friday, November 6. Their first day shift was on Monday, November 9. They worked for only two and a half days by the time they produced the list. There is no evidence that they knew any of the Sri Lankan employees (indeed any of the employees) prior thereto. A reasonable inference to draw from the evidence is that someone in the company’s main office gave the list to Kuti. I address this more fully below.

105. The union’s counsel sought to suggest that Mr. Siragusa appeared to be the unnamed villain in management who supplied the list to Kuti. Counsel referred to the following in support of his submission: Kuti had said that he had been sent by “the big boss” when mentioning his mission and Mr. Siragusa is the President of Baron Metals; Mr. Siragusa showed “appalling behaviour” in union counsel’s submission by ignoring the plight of his long standing employees when they told him they had just been threatened and regarded themselves as being in mortal danger and he responded, according to the evidence, that it had nothing to do with him and they should speak to Mr. Smith; and his office is located in the main office so he could have given the list to Kuti. In the company’s response to the certification application Mr. Siragusa is recorded as the contact person and as the company’s scrutineer at the representation vote. Counsel for the union suggested that an adverse inference should be drawn from the company’s failure to call Mr. Siragusa and to allow him to be subjected to cross-examination. Counsel referred to the following decisions in support of the suggestion: Murray v. Saskatoon 1951 CanLII 202 (SK CA), [1952] 2 D.L.R. 499 (Sask. C.A.); Claiborne Industries Ltd. v. National Bank of Canada (1989), 1989 CanLII 183 (ON CA), 69 O.R. (2d) 65 (Ont. C.A.), at 77; McMaster v. York [1997] O.J. No. 3938 (Ont. C.J.), at ¶¶22-27; McGregor Hosiery Mills of Ontario Ltd. [1976] OLRB Rep. Oct. 583, at 595, ¶31; Dover Corporation (Canada) Limited, [1976] OLRB Rep. Dec. 807, at 811, ¶13; B & S Furniture Manufacturing Limited, [1980] OLRB Rep. May 645, at 648-9, ¶11; Burlington Air Express (Canada) Ltd., [1987] OLRB Rep. Aug. 1056, at 1061, ¶¶14-16; Repla Limited, [1990] OLRB Rep. Dec. 1319, at 1326, ¶28; Greenberg Stores Limited, [1995] OLRB Rep. Nov. 1367, at 1370, ¶¶16-18. In particular, counsel argued that Mr. Siragusa could at least have explained how, in the company of which he is the President, he did not require an investigation to be undertaken to determine how it was that Kuti and Kodi got an accurate list of the names, addresses and telephone numbers of some of the company’s employees without their consent and for an improper purpose, ostensibly from someone in management. Counsel suggests that the unexplained failure by the employer to call Mr. Siragusa leaves the natural inference that his evidence would, if given, have been helpful to the union’s case.

106. I do not draw an adverse inference from the company’s failure to call Mr. Siragusa. Perhaps his evidence may have illuminated some dark aspect of the case. It would have been interesting to know why he took no steps, as apparently he did not, to find out how Kuti and Kodi came to be employed and how they had got the notorious list. But it was not necessary for him to give that testimony. His direct involvement, where no other witness could testify, concerned only the brief encounters between himself and Mr. T. Perampalam and Mr. L. Perampalam after they had been spoken to by Kuti and Kodi. They say that, upon being told of the intimidation, Mr. Siragusa shrugged and said to each of them that he had nothing to do with it and they should see Mr. Smith. That evidence was not disputed. It was not, in my view, sufficiently central to the issues in the case to require that Mr. Siragusa testify. Therefore the only area in which Mr. Siragusa’s evidence was required concerned a peripheral aspect of the case and it was not essential that he deal with it in evidence. Mr. Siragusa could have testified of other matters: the circumstances of the employment of Kuti and Kodi; the decision to terminate their employment; the meeting with Mr. Miller and the Sri Lankan employees; but there was other evidence from Mr. Smith and Mr. Miller respectively on those events. (See Agassiz Teachers’ Association No. 13 of the Manitoba Teachers Society and Agassiz School Division No. 13, (decision of January 22, 1997) (Wood)).

107. I cannot conclude that Mr. Siragusa was not the person in management who triggered Kuti and Kodi’s actions; yet also I cannot, with any degree of certainty, conclude that he was the person. The evidence implies only that someone in management was involved. The identity of that person remains a mystery.

108. At the end of the day it does not particularly matter who specifically in management was involved. What matters, and what I think is obvious from the evidence, is that Kuti and Kodi were recruited by the company’s management to discourage the Sri Lankan employees from voting for the union.

Conclusions of fact

109. The union’s particulars of claim in its unfair labour practice complaint do not wholly gel with the evidence given by the union’s witnesses. There are discrepancies, although they are not significant. They are explained in large measure by the logistical difficulties the union had in preparing the complaint in a relatively short period of time, working through interpreters with witnesses whose knowledge of English lacked fluency. I have explained, when describing disputed facts, what conclusion I have reached as to the likely probabilities of what happened. The inconsistencies and contradictions between the evidence and the pleadings were not such as to vitiate the evidence. They merely cast some doubt, which I have taken into account in arriving at my conclusions of fact.

110. The company’s busy period is in the months before Christmas each year. 1998 was no exception. The October-November period was extremely busy. The company was engaged in “panic hiring”. New employees were being taken from employment agencies and off the street. The screening process was relatively superficial. Availability was the principal criterion for employment.

111. Much was made by the union of Kuti and Kodi’s license to move around the plant during working hours. I accept they did so, leaving their work stations as they pleased. Although there appears to have been no general requirement for employees to notify management in the event of their leaving their work stations temporarily, Kuti’s and Kodi’s mobility appears to have been excessive, without any interference by management.

112. Kuti’s and Kodi’s hours of work on the days they worked in the week of November 9 are peculiar. One should bear in mind that Monday, November 9th was their first day of work on the day shift for their new employer. They arrived 50 minutes late. They left nearly four hours early. They were 10 minutes late on the Tuesday, and left an hour early. They were 13 minutes late on the day they abandoned their jobs. Mr. Bregar says he was not happy with giving them permission to leave early, yet he did so. No action was taken against Kuti and Kodi for their lateness. That seems odd, given that on their first three days of work they were late each day. These facts add to the suspicion of some management collaboration in Kuti and Kodi’s activities.

113. The oddities in Kuti’s and Kodi’s employment suggest they were treated differently from other employees, that they entered employment through a different channel, that they were employed for a limited and unlawful purpose, which resulted in their frightening the union’s inside organizers. Kuti did not give up his main job at Premdor for his Baron Metals job, presumably because the Baron Metals job was not meant to be a real job. It seems that it was expected the job would be of short duration. How whoever it was who recruited Kuti and Kodi knew of them and their violent associations remains a mystery. Plainly, Kuti and Kodi’s conduct went completely counter to the lessons which were being taught to management by their counsel as to the appropriate managerial response to a union organizing campaign, but it seems that someone within management did not heed those lessons.

114. In my view, the oddities in the process of Kuti and Kodi’s employment; their freedom of movement in the workplace; their disregard, without consequences, of the hours of work required of them; and Kuti’s continued permanent employment at Premdor are sufficient to establish that they were recruited for an improper, anti-union purpose by the company.

115. The list of the four names is problematic. I am satisfied there was a list and it was shown to Mr. Sathasivam and Mr. T. Perampalam. I am doubtful, though, of some of Mr. Sathasivam’s evidence and I am not convinced the list was obtained in the manner he alleged. It is certainly likely that the list was obtained from management, although, given the above conclusion I have reached, it is not necessary for me to decide the matter.

116. I have tried to consider alternative scenarios to the conclusion that a member of Baron Metals’ management was in some way involved in Kuti and Kodi’s misconduct. None make any probable or realistic sense. There is no reason to conclude that Kuti and Kodi acted alone. If that were so, what was their motivation? They had no apparent personal interest in Baron Metals or the employees. Why would they involve themselves for no apparent reason? Could they have been acting for a group of employees who were hostile to the union or opposed to the Sri Lankans? No evidence suggested that. The three inside organizers who testified of their organizing activity said that they did not approach Kuti and Kodi concerning the union. They spoke to employees to sign union cards in the parking lot and at their homes, not on the company’s premises, and some time before the period when Kuti and Kodi were employed. They were circumspect in the manner they recruited support. Their organizing efforts were substantially over by the time Kuti and Kodi were employed. By then the union cards they had arranged to be signed had been submitted to the Board as part of the union’s proof of membership evidence in support of the certification application. Mr. T. Perampalam admitted that he would have spoken to employees in the week leading to the representation vote, and encouraged them to vote for the union, but he denied speaking to Kuti and Kodi of the vote, or any aspect of the union’s attempt to be certified. Hence it is unlikely that Kuti and Kodi would have known, without assistance, who the inside union organizers were when they effectively started their work on Monday, November 9.

117. In contrast, the evidence of the employer’s involvement is significant. Kuti’s and Kodi’s engagement was peculiar and suspicious. Their employment coincides with when the representation vote on the certification application was to occur. Their obtaining a list of employees involved with the union is suggestive of managerial involvement even though that is not conclusively established. The accuracy of that list (two of the four named were in fact actively recruiting support for the union) is suggestive of quickly gained knowledge of the employees and the union’s organizing campaign (knowledge which Kuti and Kodi would be unlikely themselves to have had from their limited experience working at Baron Metals). The actual threats made by Kuti and Kodi concerned the union’s organizing campaign and the forthcoming representation vote, in which the employer had a real interest. The blandishments and financial inducements made by Kuti and Kodi were ostensibly on behalf of the company. Baron Metals would pay money to those approached if they withdrew their support from the union and persuaded the other Sri Lankan employees to do likewise. The only reasonable conclusion to draw from the evidence is that Kuti and Kodi were acting in some manner on the authority of a member of Baron Metals’ management.

118. In argument, the employer sought to rely upon the absence of any evidence of a pattern of anti-union activity by the company or by the Royal Group. I can neither accept nor reject that submission because of the ruling I made, at the employer’s instance, that the union was not permitted to explore in a general way the company’s and the Royal Group’s attitude to trade unions and the union. The union had attempted to lead evidence of what it alleged to be a pattern of anti-union activity by the Royal Group, but I denied the union that opportunity on the basis of the employer’s objection that it was irrelevant to the facts of this case. I cannot therefore conclude that there was no pattern of anti-union activity by the company, nor can I conclude the opposite. The company’s general or official attitude to the union is simply not a factor which works for or against either party.

119. A reverse onus applies to the employer by virtue of the provisions of section 96(5) of the Act. That requires the employer to provide “a credible explanation which would satisfy the Board that the Act has not been breached” (Sobeys Inc. [1996] O.L.R.D. No.3565, ¶62). No credible explanation has been provided as to how Kuti and Kodi were able to hone in on the key union organizers in the company’s employment, nor as to why they would have done so. On the contrary, the probabilities favour the union’s version of what occurred, viz. Kuti and Kodi were brought into the factory in order to discourage the union’s inside organizers. The overall circumstantial and direct evidence is overwhelming that someone within management took it upon himself or herself to influence the vote outcome improperly, despite the advice from counsel which the company was receiving.

120. It is not possible to identify any particular person in Baron Metals management who might have been responsible for Kuti and Kodi’s presence and intervention. However, that does not alter the obvious conclusion that someone from Baron Metals’ management initiated the reprehensible conduct of Kuti and Kodi.

Did the representative vote disclose the true wishes of the employees?

121. In the event of a finding of some responsibility on the part of the company for Kuti and Kodi’s behaviour, the employer takes the position that the threats were of limited impact only, not sufficient to affect the representation vote which occurred on November 16, 1998. At most, in the employer’s submission, ten or so Sri Lankan employees were affected by Kuti and Kodi’s conduct, out of a bargaining unit of 90 employees.

122. Counsel for the employer further submits that, if one has regard to the number of union cards filed with the application for certification (a total of 39) and one compares that to the number who voted in favour of the union in the representation vote (42), there is a consistency suggesting that the intimidation had no impact upon the employees who were expressing their wishes. Had the intimidation had any effect, in employer counsel’s submission, the number who voted for the union would likely not have been higher than the number who signed union cards.

123. This argument must be evaluated in the context of the vote outcome, a tie of 42 for the union, 42 against. In that context, if even a single employee was intimidated from voting as he or she would have, but for the employer-sponsored intervention of Kuti and Kodi, the vote is an unreliable indicator of the workers’ views on the matter. The impact of their misbehaviour was felt by all of the Sri Lankan employees of the door department, approximately 12 in number. That, in my view, is a significant group, even though they constitute a minority within the bargaining unit (cf. Primo Food Limited, [1983] OLRB Rep. Apr. 593, in which only one employee was threatened and other employees were not informed of the threat). Consequently, I am satisfied that Kuti and Kodi’s intimidation affected the representation vote and that the result does not reflect the true wishes of the employees. Furthermore, I cannot conclude that the union would not have been successful had the intimidation not occurred.

124. The employer’s alternative submission in this regard is that the meetings between Mr. Smith and Mr. Miller and the Sri Lankan employees were sufficient to mollify their fears. Counsel submits that the employer’s response was swift and decisive. What was clear from the meetings was that the company had taken immediate steps to put an end to what was clearly a problem by summarily terminating Kuti’s and Kodi’s employment and management had given the employees an assurance that intimidation would not be tolerated in its establishment. That, in the employer’s submission, was sufficient to allay the employees’ concerns such that, when they voted on November 16, they were no longer influenced by any residual concerns or fears of coercion. The employer makes the point that all of those spoken to by Kuti and Kodi did not refrain from voting, but participated in the representation vote. We do not know, of course, how they voted.

125. The employer adds that the employees who participated in the representation vote, or many of them, would have participated in the union’s earlier representation vote, approximately a year earlier. That experience would, in the employer’s submission, have shown them how Board votes are conducted and it would have attuned them to what they might expect at the representation vote on November 16. They would have known that they would vote in secret and the sanctity of their ballots would be upheld by the Board. Moreover, says the employer, the union would have sought to comfort the employees once it learnt of the events on November 11, by telling them that they should not be intimidated and they should vote as if nothing had happened. There was no evidence of this, but I am willing to assume it to be so.

126. I accept that many of the employees who voted on November 16 would have participated in the Board-supervised vote of a year earlier and that they would have been broadly familiar with what to expect. I accept too that Mr. Sathasivam and Mr. T. Peramapalam probably exaggerated the extent of their fear. That is apparent from Mr. T. Peramapalam continuing to encourage employees to vote for the union in the days before the vote. If he really thought he would be killed if the union won the vote, he is unlikely to have done that. Of the four individuals who were intimidated, Mr. L. Perampalam struck me particularly as having been genuinely scared of what might happen.

127. I cannot, though, conclude that the impact of the intimidation was assuaged by management’s decisive action immediately upon learning of Kuti and Kodi’s improper interference. Serious acts of intimidation occurred on November 11. The representation vote was held on November 16, three working days after the intimidation. The experience was fresh in the workers’ minds at the time and the efforts by management to deal with the situation, did not, in my view, suffice to remove the cowering impact. What was also fresh in workers’ minds was the unwillingness of management to bring the police to the workplace to investigate the matter and what they saw as a perfunctory investigation of the role played by Kuti and Kodi. The meetings clearly did not assuage the sense of panic which pervaded among the Sri Lankan employees.

128. The intimidation of the Sri Lankan employees who were approached by Kuti and Kodi was not merely a case of one employee trying to influence another (cf. National News Company Limited, [1990] OLRB Rep. Aug. 870, at 873, ¶18; Atlas Specialty Steels, [1991] OLRB Rep. June 728, at 731-2, ¶¶12-20). It was of a much more serious nature, threatening violent death at the behest of management. That is not the type of cajolery which can be treated as the normal robust interaction between employees who have differing political and organizational views.

129. The employer makes the point that the representation vote was supervised by the Board. It was a secret ballot conducted to the high standards set by the Board. I accept this, but the secrecy of the ballot and the proper conduct of the ballot itself do not, in my view, quell the sense of fear which pervaded the workplace then. What had been told to the four Sri Lankan employees, and relayed to all of the Sri Lankan employees, was that if the union won the vote there were to be some dire consequences for particular individuals whose addresses were known to the potential assailants. I cannot assume that the impact of that threat, which was taken seriously, had wholly dissipated three working days after the threat was made, or that the threat did not have a meaningful effect on the way in which the employees in the bargaining unit voted.

130. In reaching this conclusion I am cognisant of the Board’s comment in Concorde Metal Stampings, [1987] OLRB Rep. Jan. 34, at 40, ¶30:

While the Board always has the authority to set aside a representation vote and order a new one, that is not a neutral decision, nor one which should be lightly taken and in our view should not be taken unless the occurrences are so serious and pervasive as to render improbable a reliable expression of employee wishes despite the sanctity of the ballot box.

I consider the threats in this case to be so serious and sufficiently pervasive to affect the reliability of the employees’ expression of their wishes, despite the sanctity of the ballot box, the discharge of Kuti and Kodi and the brief lapse of time between their discharge and the vote (from Wednesday to the following Monday). The threats were not only grave, but, as the union’s counsel submitted, they were directly tied to the upcoming representation vote and the union’s possible success in its certification application. I conclude that the employees have been deprived of the ability freely to express their true wishes (Greb Industries Limited, [1979] OLRB Rep. Feb. 89, at ¶14; Capelas Homes Ltd. [1998] O.L.R.D. No. 3121, at ¶¶17-27). For reasons explained the employer must accordingly be held responsible for it.

131. In the circumstances I find that there has been a violation by the employer of sections 5, 70, 72(c) and 76 of the Act.

132. Does section 11 of the Act apply? Two conditions must be met for the Board to grant relief under section 11. Firstly, the employer must have violated the Act. I have found that to be the case. Persons acting on behalf of the employer have violated the Act. Secondly, the result of the contravention must be that a prior representation vote did not likely reflect the true wishes of the employees in the bargaining unit. For the reasons set out above, I have concluded that the representation vote on November 16, 1998 did not likely reflect the true wishes of the employees concerned. I am satisfied that both conditions have been met in this case. A fresh representation vote in the proper circumstances will help to clear the air.

The appropriate remedy

133. The employer made a strong argument that I should hear the parties afresh before determining the appropriate remedy, particularly if any damages were to be awarded against the company. Counsel for the employer suggested that the remedy should depend upon the conclusions of fact I have reached, and the parties should have an opportunity to address the question of remedy once my factual determination was made. The union opposed any bifurcation of the case. The matter proceeded on the basis that the merits and demerits of the relief sought by the union were argued.

134. The union has sought the following relief:

Schedule “A”

The Applicant requests the following relief pursuant to section 96 and section 11 of the Labour Relations Act (the “Act”):

1. A declaration that the Act has been violated as set out in Schedule “B”;

2. An Order that the Employer cease and desist immediately from violating the Act as set out;

3. An Order that a second representation vote be held to ascertain the true wishes of the Employees in the bargaining unit;

4. An Order that in advance of any second representation vote the following steps be taken:

• that the Employer provide the Union with the names, addresses and telephone numbers of all bargaining unit members;

• that the Union be provided with an office in the plant between the date of the decision and the date of the second vote for the purpose of conducting organizing and other Union activities;

• that all employees in the bargaining unit be required to attend a meeting with the Union every day for one hour during their shift, or such lesser time at the option of the Union, at which time no members of management shall be present;

• that Board notices setting out the Board’s declarations and orders herein reciting the rights and protections of employees under the Act and assuring employees that the Employer will not interfere or penalize employees in any way for exercising those rights, be posted extensively throughout the workplace from the time of this decision until the time of the vote in all languages spoken by members of the bargaining unit, including the Tamil language, such notices to be signed by the president of the Responding Party;

• that such notices as foresaid also be mailed to each employee at his or her home address in the language that he or she speaks 14 days in advance of the vote;

• that the Union be granted the right to distribute leaflets throughout the workplace on a daily basis 14 days in advance of the vote;

• that a representative of the Labour Relations Board, preferably a Vice-Chair, attend at the workplace to address all the employees in the bargaining unit to describe their rights and protections under the Act, the secrecy surrounding the vote, and the process of the vote;

• such other steps as the Board may deem necessary in order to insure that the second representation vote reflects true wishes of the employees in the bargaining unit.

5. An Order that the Responding Party not communicate in any way with any employees in the bargaining unit concerning unionization or the upcoming vote from the date of the decision until the date of the vote;

6. An Order that all employees in the bargaining unit be given time off work to vote;

7. An Order that the location for the vote be chosen by the Union and be in its sole discretion;

8. An Order that the returning officer at the vote identify himself or herself as a neutral government official to each and every voter and assure each voter that neither the Employer nor the Union will know how they voted;

9. An Order that the Union be permitted to have interpreters available to implement any aspect of these Orders;

10. An Order that the Responding Party compensate the Union for all costs incurred by it or by employees in the bargaining unit as a result of the Responding Party’s breach of the Act, including all organizing costs that have been incurred and may be reasonably be expected to be incurred in the course of this organizing campaign;

11. An Order that the Responding Party pay to the Union $1,000,000.00 in damages for injuries and harms suffered by employees in the bargaining unit, their families, and the Union, in the course of this organizing campaign;

12. An Order that employees be provided with just cause protection from the date of this award for any discipline or discharge imposed by the employer with an expedited arbitration process to ensure prompt enforcement of that just cause protection;

13. Such further and other relief that the Board may deem to [be] just and equitable under the circumstances.

14. Notwithstanding the amendment to section 11 of the Act brought about by Bill 31, which removed the Board’s power to grant automatic certification, the Board has applied the same standard to determine whether any relief under that section is appropriate: Capelas Homes Ltd., above, at ¶13. The Board has had, though, to fashion a remedy in each instance which achieves the purpose of finding a reasonable and fair method to determine the true wishes of the employees. The Board’s approach must be compensatory and restorative, not punitive: Tandy Electronics Limited v. United Steelworkers of America et al (1981), 1980 CanLII 1738 (ON HCJ), 30 O.R. (2d) 29. It must remedy the lost opportunity of the previous representation vote, which was distorted and nullified through some wrongful conduct on the part of the employer. Section 11 provides an extraordinary method to remedy a situation which has gone awry through some deliberate, wrongful behaviour. The section is meant to be used sparingly, but it should ensure that improper acts of interference in the free exercise of representational rights by employees under the Act are remedied and that those who have suffered the consequences of those acts are suitably compensated. Despite the removal of the Board’s former power to grant automatic certification, the Board retains extensive powers and great flexibility in fashioning an appropriate remedy. In previous cases since the Bill 31 amendment, when considering the appropriate relief under section 11, the Board has seen fit to order a fresh representation vote and other ancillary relief, usually on the basis of that sought by the applicant union. That occurred, though, when the relief was unopposed by the responding employer: Azores Concrete Ltd., [2000] OLRB Rep. Sept./Oct. 789; K.L. Drywall & Acoustics Inc., [1999] OLRB Rep. Mar./Apr. 208. This is the first case in which the Board has been called upon to address the issue when the responding party has made an appearance and opposed the application. It is also a case which involves extremely serious acts of misconduct under the Act.

15. The union has sought relief to remedy what it regards as the prejudice it has suffered by the conduct described herein. In my view, the relief it seeks goes beyond what is reasonably necessary to restore an equilibrium in which the union has a fair opportunity to garner the employees’ support and to offset the impact of what occurred. I recognize that it is necessary to provide a meaningful remedy to address a situation in which the employer has effectively permitted or tolerated unlawful death threats aimed at vulnerable employees. The employees in the bargaining unit need to be put in a position so as to be able to express their views without undue influence on whether they wish to be represented by the union for the purposes of collective bargaining. This is a case which warrants an extensive “make whole” order against the employer, such as was issued in Academy of Medicine, [1977] OLRB Rep. Dec. 783, at 795, ¶48 and Radio Shack, [1979] OLRB Rep. Dec. 1220, at 1269, ¶125. In my view, the circumstances in this case are egregious, akin to what occurred in those cases. What I set out below is sufficient, I think, to achieve the restoration of the status quo as it ought to have been on November 16, 1998.

16. The union seeks $1 million in damages for the employees who were intimidated, and for their families: Morgentaler v. Wiche [1989] O.J. No. 2582. This relief is founded on the tort of intimidation. Intimidation is expressly referred to in section 76 of the Act. When dealing with instances of intimidation the Board exercises its consideration by virtue of its powers under the Act, and not as a court might do in respect of the tort of intimidation. As employer counsel recommends, there is no need to look to tort law when considering the unfair labour practice of intimidation: Keith MacLoed Sutherland, above, at 1226-7, ¶¶10-12.

17. Certain of the relief sought by the union will not be granted, some will be modified and some will be granted as requested. The employer will not be restricted in the exercise of its lawful rights to free speech. Also, the just cause protection which the union seeks is not appropriate in this case. There was no allegation by the union of union-supporting employees being discriminated against in their work opportunities or unfairly disciplined on account of their union support. The employer’s usual managerial rights in respect of discipline and supervision remain intact, save for the relatively minor limitations set out below.

18. In my view the basis for determining the appropriate relief must be to put the union and the employees in the position they would have been had the employer’s misconduct not occurred. In fashioning a remedy, the employees in the bargaining unit should know of their entitlement to participate in a representation vote supervised by the Board without fear of coercion, intimidation or undue influence. That will involve a fresh representation vote and a reasonable opportunity for the union to convey to the employees in the bargaining unit their entitlement to be represented by the union. There should also be appropriate compensation for the harm done to the union and the employees. I deal with the relief under each of the following headings.

Reimbursement of the union’s organizing costs

140. The union was put to unnecessary expense in its campaign leading to the representation vote of November 16, 1998. It should be compensated by the company for its wasted expenses. The union’s damages are the organizing expenses the union incurred in the period between September 1997 (when the union lost the first representation vote) and November 16, 1998. I remit the determination of the quantum of those costs to the parties for resolution. Should the parties be unable to reach agreement on the amount, I will remain seized to determine it.

A fresh representation vote

141. The union is entitled, on the basis set out herein, to determine broadly when a fresh representation vote will occur. The vote must be within six months of the date of this decision. The union will provide the Board and the employer with written notice that it wishes the representation vote to be held. Upon receipt of the notice from the union, the request for a vote will be treated like a certification application. The parties can expect that, unless there are compelling reasons to arrive at a different date, the representation vote will occur five days after the Board receives the notice. All those at work, or employed with a reasonable prospect of returning to work, in the agreed bargaining unit on the date of this decision will be eligible to vote. (The union asked that those in the bargaining unit when the fresh vote is ordered be eligible to vote. Hence no issue was raised between the parties as to whether the voting constituency should be only those employees who were eligible to vote on November 16, 1998. In these circumstances the Board has not addressed the question, in this decision, of whether there might be circumstances when the voting constituency should be only the employees eligible to vote in the original (tainted) vote, or whether (as here) it should be the employees at work or employed with a reasonable prospect of returning to work on the date on which the fresh vote is triggered – in this case, on the date of this decision).

142. The bargaining unit (“the bargaining unit”) upon which the parties have agreed is the following:

all employees of Baron Metal Industries Inc. in the Regional Municipality of York, save and except forepersons, persons above the rank of foreperson, office, clerical and sales staff.

That unit is deemed to be appropriate for the purposes of collective bargaining.

143. The employer is directed to produce to the Board and the union a voters’ list within five (5) days of the date of this decision. As stated, that list shall contain the names and positions of those persons (in the form of Schedule “A” to a response to a certification application) at work or employed (though not at work, but with a reasonable expectation of their return) in the bargaining unit on the date of this decision.

144. It is not necessary to grant the relief sought by the union regarding the location of the vote and time off for employees casting their ballots. The times and location of the vote will be determined in the usual manner, by agreement of the parties in collaboration with the Board’s Vote Co-ordinator, and failing agreement, by decision of the Board.

Notice to the employees

145. A notice in the form set out in Appendix “A” to this decision shall be posted forthwith by the employer on all notice boards where the notice will likely come to the attention of the employees in the bargaining unit. The notices will remain posted on the employee notice boards until the holding of the representation vote referred to above.

146. The Notice shall forthwith be translated at the employer’s expense into Tamil and all other home languages of the employees in the bargaining unit and those translated notices will be posted within 14 days of the date of this decision, and remain so posted, with Appendix “A” on all notice boards where the notice will likely come to the attention of the company’s Sri Lankan and other employees in the bargaining unit whose home language is not English.

147. An English copy of the Notice and a copy in the home language of the employee concerned (if the employee’s home language is not English) shall be given to each employee by the employer with the employees’ pay stubs immediately following the employer’s receipt of the translations of the notice, which, as stated, shall be within 14 days of the date of this decision.

A union access to the employees in the bargaining unit

148. Besides threats of violence actually being carried out, the making of violent threats is the next most egregious interference in the exercise of the democratic right of employees under the Act to vote for or against a prospective bargaining agent. The employees in the bargaining unit should have palpable demonstrations that the employer is not permitted to trample upon their statutory rights. As part of that process the union shall be permitted to have meetings, on the company’s premises, at a location or locations where employees would normally be convened or convene for the purpose of meeting together. The purpose of such meetings will be to provide the union with opportunities to address the employees in the bargaining unit.

149. The union has sought an entitlement of one meeting per day for one hour, at its instance, on the employer’s premises during the employees’ shifts without loss of pay. This is excessive, beyond what should reasonably be granted. The Board will provide adequate meeting opportunities, without unreasonably disturbing production in the company.

150. Subject to what follows, the place and time of meetings will be determined by the parties (failing which the Board will determine the matter summarily). No member of the company’s management, or person outside of the bargaining unit, may be present at any union meeting without the express consent of the union representative conducting the meeting.

151. As the union requested, all employees in the bargaining unit shall be required to attend the union’s meetings, as stipulated herein. The reason for this is so that no distinction may be drawn between those who would otherwise choose to attend, and those who would not. The employees in the bargaining unit shall be paid by the employer at their usual rates of pay for attending the union meetings, as if they were at work.

152. The meetings to which the union will be entitled are the following:

153. The union shall be entitled forthwith to hold an initial meeting with each shift of employees in the bargaining unit for a period of 1 hour during working hours.

154. On one occasion in each calendar month following the initial meeting, for up to half an hour, until the holding of the fresh representation vote, the union will be entitled to further such meetings.

155. In addition to the meetings, the union shall be provided at the company’s expense with an office on the company’s premises (“the union office”) accessible to employees in the bargaining unit from one week after the date of this decision until the counting of the ballots in the representation vote to be held pursuant to this decision or for a period of 6 months from the date hereof, whichever is the shorter. That office shall be of reasonable size and furnished for use by the union. It will be the private space of the union. The union shall be entitled to have up to three representatives (of whom one may be an interpreter, if the union so chooses) with access to the union office and to attend any union meetings upon the union providing the company with the names of the persons designated by the union for this purpose. The union representatives so designated shall comply with all reasonable health and safety and security requirements of the company.

156. If the union chooses to designate an employee of the company as one of its designated representatives, that person shall be entitled, upon the union’s request, to unpaid leave of absence to act as the union’s in-plant representative during the time the union has use of the union office. The union’s in-plant representative shall be entitled to have access to the entire plant of the company and to the bargaining unit employees during working hours.

157. The company shall within five (5) days of the date of this decision provide the union with the names, addresses and home telephone numbers of all employees in the bargaining unit eligible to vote in the fresh representation vote. The company will indicate which of the employees has been hired since November 16, 1998.

158. A representative designated by the union shall be entitled to hold a one-on-one meeting in the union office with each employee hired by the company since November 16, 1998 for up to 15 minutes during that employee’s working hours, without loss of pay for the employee concerned.

159. Any employee in the bargaining unit shall be free to meet with the union’s representatives in the union office during the employee’s own time, or during working hours, without pay, if the employee obtains the permission of his or her supervisor, which permission shall not be unreasonably withheld.

160. From the date the Board receives the union’s request for the fresh representation vote, as provided herein, until the date of the vote, the union shall be entitled to distribute leaflets to employees throughout their workplace.

161. Should any employee in the bargaining unit be suspended or discharged in the period between the date of this decision and the fresh representation vote to be held, the union may require a meeting to discuss the matter with the company and the company shall convene such a meeting for that purpose.

Damages to the employees in the bargaining unit

160. The Board may grant general damages in appropriate circumstances: Jacmorr Manufacturing Limited, [1987] OLRB Rep. Sept.1806, at 1097, ¶¶31-24.

161. The union sought an order that the employer pay to the union the sum of $1,000,000 in damages “for injuries and harms suffered by employees in the bargaining unit, their families, and the union, in the course of the organizing campaign”. In considering this matter I am cognisant of the Board’s general principles regarding damages and monetary compensation, as set out in Radio Shack, above, at 1253-1255, ¶¶93-97:

162. It is trite to say that all rights acquire substance only insofar as they are backed by effective remedies. Labour law presents no exception to this proposition. An administrative tribunal with a substantial volume of litigation before it faces a great temptation to develop "boiler plate" remedies which are easy to apply and administer in all cases. This temptation must be resisted if effective remedies are to buttress important statutory rights. An impor­tant strength of administrative tribunals is their sensitivity to the real forces at play beneath the legal issues brought before them and there is no greater challenge to the application of this expertise than in the area of developing remedies. To be effective, remedies should be equitable, they should take account of the economics and psychology permeating the situa­tion at issue; and they should attempt to take into account the reasons for the statutory vio­lation. Remedies should also be sensitive to the interests of innocent bystanders. This means then that the Board should try and tailor remedies to each particular case. It is equally true, however, that the Ontario Labour Relations Board cannot police the entire labour relations arena. As important as it is for this Board to safeguard the substantive rights it administers, ultimately, compliance with the Act depends on the vast majority of unions and employers according at least minimal respect to the legislation, the Board and the Board's directives. With its limited resources and the time that must be taken to adjudicate fairly issues of con­troversy, the Board must rely on the co-operation of employers and trade unions in the day-to-day administration of the Act. For this reason, the Board cannot get too far ahead of the expectations of the parties it regulates. It must be concerned that its decisions are perceived, in the main, as reasonable and fair to attract as much self-compliance as possible. It has therefore been said that the ideal Board order must be both an instrument of education and of regulation. See generally St. Antoine, A Touchstone for Labor Board Remedies (1968), 14 Wayne L. Rev 1039; Ross, Analysis of Administrative Process Under Taft-Hartley, [1966] Lab. Rel. Yearbook 299. Giving effect to these general considerations, three basic princi­ples that underpin section 79 have emerged.

(1) A Remedy is Not A Penalty

94. If deterrence was all that the Board had to keep in mind, it would be a simple mat­ter to set up a system of penalties which would achieve this end. There is little doubt that penalties could be devised which would provide second thoughts to anyone intent on violating The Labour Relations Act. But the Legislature did not provide the Board with this role and probably with good reason. See Little Bos. (Weston) Limited [1975] OLRB Rep. Jan. 83, at 91. Section 85 of the Act is a section that sets out penalties for contraventions of the legislation and allocates the role of applying these penalties to the Provincial Court. Addi­tional penalties may exist elsewhere in appropriate situations. See Criminal Code, R.S.C. 1970, c. C-34, s. 5, 423(2)(a); Re Regina v Gralewicz et al (1979), 1979 CanLII 2963 (ON CA), 45 C.C.C. (2d) 188 (Ont.C.A.) By implication, and by the absence of punitive language elsewhere in the stat­ute, it is reasonable to conclude that the Board should not fashion its remedies under section 79 with the primary view of penalizing parties. This is not to deny that effective remedies will likely have a deterrent effect, but the primary purpose of a remedy should not be punish­ment. If it were otherwise, the Board's accommodative and settlement role under section 79 and more generally would be a most difficult one to maintain. Offenders would be wary of compromise lest their candor be subsequently met by stiff penalties issued by the very agency that encouraged an informal and early resolution of a complaint. Indeed, settlement and compromise might have to give way to a public clamor for a more tangible enforcement of the legislation not unlike the current concern over plea bargaining in the criminal law con­text. Labour law has historically been more interested in accommodation than "two-fisted" enforcement. But of course, the failure to comply with a Board order can result in the appli­cation of penalties by the Court in the exercise of the Court's contempt jurisdiction.

95. In the immediate case this principle has importance. For example, affirmative or­ders that an employer post notices indicating that he has violated the Act and directives that he publicly commit himself to future compliance with the legislation cannot have as their purpose public humiliation, embarrassment and, thereby, punishment. These remedies may be appropriate as might direct trade union access both to employees on an employer's time and to employee addresses, but only as directives aimed at the removal or rectification (to use the language of the statute) of the consequences of a violation. These types of remedies, and their nature is almost infinite, should have as their purpose the amelioration of the lingering psychic effects of unfair labour practices and the consequent injury to a union’s or­ganizational or bargaining strength. The jurisprudence developed by the National Labour Relations Board is repleat [sic] with other examples and demonstrates the great potential for de­veloping affirmative labour relations remedies under Section 79. See McDowell and Huhn, NLRB Remedies for Unfair Labour Practices, Wharton School of Finance, Univ. of Pa. (1976). However, the Board must consider the appropriateness of each remedy in a Cana­dian context and in the light of our own statutory framework. For example, quare the appli­cation of certification extension in Ontario: Mar-Jac Poultry (1962) 136 NLRB 785.

(2) Monetary Relief is Compensatory

96. This is a corollary to the no-punishment principle. While it may be discouraging to the Board where, for example, the reinstatement of an employee with back pay, is simply in­adequate to deter repeated offences, this is no justification for the application of additional monetary penalties in the guise of compensation. Thus, it is conceivable that the Board might change its policy and no longer require the mitigation of losses by employees who are subject to an unfair labour practice discharge. The change might be justified by the argu­ment that the employer is paying no more than he would have had to pay had the person been employed up to the date of his reinstatement. However, it would be clear to those who regularly appear before the Board that our primary purpose was more in the vein of making unfair labour practice compensation orders more painful. On the other hand, our back-pay and compensation awards should be as fully compensatory as possible and, on request, could bear interest. Our approach might be analogous to that provided for by The Judicature Act, R.S.O. 1970, c. 228, as amended S.O. 1977 c. 51, s. 38. See also Sedgewick and Metro­politan Toronto Zoological Society (1979), 22 O.R. (2d) 225.

97. An order directing compensation for loss of earnings is not the only manner of awarding monetary relief under section 79. The language of section 79 provides the Board with the broadest power to provide relief with paragraph (a), (b) and (c) of section 79(4) be­ing but illustrations of this broad power. This is made clear from the general direction of the section stating that the board "shall determine what, if anything, [a party] shall do or refrain from doing with respect thereto" and from the subsequent introductory phrase to the spec­ific powers "without limiting the generality of the foregoing …" An additional and impor­tant justification for concluding that the Board has power to award, in effect, general dam­ages arising from a breach of the Act was well expressed in The Journal Publishing Company of Ottawa Limited, supra at para. 61, thusly:

"The language of section 79(4)(c) is intended to clear up any doubts about the Board's power to reinstate employees, a remedy not available at com­mon law, and not to restrict the awarding of damages to this one situation. The power of an arbitrator to award damages in the absence of express statu­tory authority has had longstanding approval from the Supreme Court of Canada. See: Polymer Corp. (1962), 1962 CanLII 3 (SCC), 33 D.L.R. (2d) 124. It would be strange indeed if the Labour Board did not have at least equal remedial authority, where the language of the legislation so clearly provides for it."

162. As explained in Radio Shack, at 1260, ¶¶107-114, the Board will consider awarding damages in respect of a loss of an opportunity or chance, or the loss of a bargaining expectation, which had the prospect of improvement for the employees concerned.

163. In this case it is arguable that the employees in the bargaining unit on November 16, 1998 were deprived of the opportunity of participating freely and fairly in the certification process and of freely expressing their views in the representation vote on that date. Under section 2 of the Act the first purpose of the Act described is: “To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees” [emphasis added]. Employees have a right under the Act to freely decide whether they want to be represented by a trade union. That right was denied in this case, ultimately on account of the choice made by the company to employ Kuti and Kodi for an improper purpose. Arguably the employees who are still in the employment of the company, who were eligible to vote on November 16, 1998, have suffered a loss for which arguably they ought to be compensated. This issue was, however, insufficiently addressed by the parties in argument. Should the union wish to claim damages under this heading, it may, within 30 days of the date of this decision, request the matter be re-listed for hearing to address the issue. When making the request, the union should provide details of the nature of its claim for the affected employees, with reference to the authorities it will reply upon. The company should respond within 5 days, and provide details of the authorities it will reply upon. I remain seized to hear the matter.

164. Each of Mr. Sathasivam, Mr. T. Perampalam, Mr. L. Perampalam and Mr. Nagarajah suffered fright, fear and considerable anxiety as a result of the conduct of Kuti and Kodi, for which I have found the company to be ultimately responsible. This issue was, however, insufficiently addressed by the parties in argument. Should the union wish to claim damages under this heading, it may, within 30 days of the date of this decision, request the matter be re-listed for hearing to address the issue. When making the request, the union should provide details of the nature of its claim for the affected employees, with reference to the authorities it will reply upon. The company should respond within 5 days, and provide details of the authorities it will reply upon. I remain seized to hear the matter.

Disposition

165. I made the following declarations and orders and I issue the following directions:

166. The responding employer has violated the provisions of sections 5, 70, 72(c) and 76 of the Act.

167. The employer should ensure that all members of its management desist from interfering in the free selection, or not, of a union by the employees in the bargaining unit.

168. The result of the representation vote held on November 16, 1998 is set aside.

169. A fresh representation vote will occur on the terms set out above.

170. A notice in the form of the Notice attached hereto, marked Appendix “A”, shall be posted and provided (if necessary, with translation) to each employee in the bargaining unit, as set out above.

171. The employer shall pay to the union in damages its organizing campaign costs for the period September 1997 to November 16, 1998, on the terms set out above.

172. Baron Metals shall permit the union to meet with the employees in the bargaining unit for certain general union meetings of bargaining unit employees, for meetings with individual employees who have been hired by the company since November 16, 1998 and for other purposes, on the terms set out above.

173. Baron Metals shall provide the union an office in the company’s premises until the conclusion of the fresh representation vote, on the terms set out above.

174. In the event of any employee being suspended or dismissed from employment by Baron Metals between the date of this decision and the counting of the ballots in the fresh representation vote, the union may require a meeting with Baron Metals to discuss the matter and Baron Metals management shall meet with the union for that purpose, as provided above.

175. The union may designate up to three representatives to act on its behalf on the company’s premises and the company shall permit their access to Baron Metals’ workplace, on the terms set out above.

176. Baron Metals shall provide to the union the names, addresses and telephone numbers of the employees in the bargaining unit who are eligible to vote in the fresh representation vote, as provided above.

177. Without prejudice to the position of either party on the matter, should the union wish to seek damages for the employees in the bargaining unit who were eligible to vote on November 16, 1998, and/or for each of Mr. Sathasivam, Mr. T. Perampalam, Mr. L. Perampalam and Mr. Nagarajah on account of the intimidation they suffered, the union may request the Board to address that matter, on the terms set out above.

178. I remain seized to address any issues of dispute concerning the implementation of this decision.

“Christopher J. Albertyn”

for the Board

Appendix "A"

The Labour Relations Act, 1995

NOTICE TO EMPLOYEES

Posted by order of the Ontario Labour Relations Board

This notice has been posted in compliance with an Order of the Ontario Labour Relations Board issued after a hearing. The Board has determined that Baron Metal Industries Inc. violated the Labour Relations Act, 1995 in respect of the representation vote which occurred on November 16, 1998. The Board found that that vote did not likely reflect the true wishes of the employees. The Board found also that employees in the bargaining unit on November 16, 1998 were deprived of the opportunity of freely expressing their views in the representation vote.

The Board informs the employees of the following:

All employees have the right:

♦ to join a trade union of their choice and to participate in its lawful activities;

♦ to cast a secret ballot in a representation vote in favour of, or in opposition to, a trade union;

♦ to act together for the purposes of collective bargaining;

♦ to refrain from doing any of these things.

In order to restore the situation in the workplace to what it should have been had the unlawful acts which occurred in the week preceding the representation vote on November 16, 1998 not occurred, the Board has made the following declarations and orders:

1. Baron Metals management has violated the provisions of sections 5, 70, 72(c) and 76 of the Labour Relations Act, 1995.

2. Baron Metals shall desist from interfering in the selection of a union by its employees.

3. A fresh representation vote will occur (following a request for the vote by the United Steelworkers of America) to determine whether Baron Metals employees want to be represented by that union for the purposes of collective bargaining with Baron Metals.

4. Baron Metals shall permit the United Steelworkers of America to hold the following meetings with employees in the bargaining unit on the premises of Baron Metals during working hours (without loss of pay to the employees) and all employees in the bargaining unit are required to attend the meetings:

4.1 Forthwith at the request of the United Steelworkers of America an initial meeting with each shift of employees in the bargaining unit for a period of 1 hour;

4.2 At the request of the United Steelworkers of America on one occasion, in each calendar month following the initial meeting, for up to half an hour, until the holding of the fresh representation vote;

4.3 A one-on-one meeting with each employee hired by Baron Metals since November 16, 1998, for up to 15 minutes.

5. Baron Metals shall provide to the United Steelworkers of America a list of the names, addresses and home telephone numbers of all employees in the bargaining unit who were hired after November 16, 1998.

6. In the event of any employee being suspended or dismissed from employment by Baron Metals since the date of the Board’s decision, the United Steelworkers of America may require a meeting with Baron Metals to discuss the matter and Baron Metals management shall meet with the United Steelworkers of America for that purpose.

7. Baron Metals shall provide to the United Steelworkers of America an office inside Baron Metals’ premises from one week after the date of the Board’s decision until the counting of the ballots in the fresh representation vote which is to occur, or for a period of 6 months, whichever is sooner. The United Steelworkers of America may have up to three representatives at Baron Metals during that period. Employees shall be entitled to meet with the representatives of the United Steelworkers of America during that period on their own time, in the office provided to the United Steelworkers of America by Baron Metals.

8. Immediately prior to the representation vote, on terms described in the Board’s decision, Baron Metals shall permit the United Steelworkers of America to distribute pamphlets to employees in the workplace.

9. The company shall pay to the union its organizing campaign costs for the period September 1997 to November 16, 1998.