[1982] OLRB Rep. September 1303
0567-82-U United Steelworkers of America and its Local 7291, Complainants, v. Globe Spring & Cushion Co. Ltd., Kelson Spring Products Limited, and Regal Spring Company, Respondents
BEFORE: R. D. Howe, Vice-Chairman, and Board Members W. H. Wightman and B. L. Armstrong
APPEARANCES: J. Sack, Q. C., Lorne Richmond, and F. Rao for the complainants; R. M. Parry, Malcolm Marcus, Harry Marcus, K. Rasminsky, and Henry Kelson for the respondents.
DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; September 9, 1982
This is a complaint under section 89 of the Labour Relations Act in which the United Steelworkers of America (hereinafter referred to the "Union") and its Local who is the Chairman of the Board of Directors of the respondent Globe Spring and Cushion Company Limited ("Globe"), and his son Malcolm, the President of Globe, contrary to the provisions of sections 3, 15, 64, (a) and (c), 67(1), and 70 of the Act, in that they bargained in bad faith, bargained directly with employees whom the Union was entitled to represent, interfered with the administration of the Union, and otherwise violated the Act as specified in the statement of particulars attached to the complaint filed with the Board on June 18, 1982.
By letter dated July 6, 1982, the complainant, through its solicitors, sought leave of the Board to amend the complaint so as to add Kelson Spring Products Limited ("Kelson") and Regal Spring Company ("Regal") as respondents, and filed additional particulars alleging that the respondents had failed to comply with a demand made by the complainant during the course of collective bargaining that it be informed of the actual wage rates which their respective bargaining unit employees had been receiving prior to the lawful strike which commenced on May 25, 1982.
In a majority decision dated July 26, 1982 in this matter, the Board wrote as follows:
"5. Having regard to all of the evidence and the submissions of the parties, the Board finds that Globe contravened sections 15, 64, and 67(1) of the Act by bargaining directly with some of its employees whom the Union was (and is) entitled to represent, and thereby interfered with the representation of employees by the Union. The Board further finds that each of the respondents contravened section 15 of the Act by refusing to disclose to the Union the actual wage rates which their respective bargaining unit employees had been receiving prior to the lawful strike which commenced on May 25, 1982.
The Board, therefore, declares:
that the respondent Globe Spring & Cushion Co. Ltd. has contravened sections 15, 64, and 67(1) of the Act; and
that the respondents Kelson Spring Products Limited and Regal Spring Company have contravened section 15 of the Act.
To remedy those contraventions of the Act, the Board orders:
that the respondent Globe Spring & Cushion Co. Ltd. desist from bargaining directly with employees whom the complainant trade union is entitled to represent;
that the respondents Globe Spring & Cushion Co. Ltd., Kelson Spring Products Limited, and Regal Spring Company, forthwith inform the complainant of the actual wage rates that were being paid to their respective bargaining unit employees prior to the lawful strike which commenced on May 25, 1982;
that the respondent Globe Spring & Cushion Co. Ltd., on receipt of this decision, convene forthwith a series of bargaining meetings between itself and the complainant trade union, with the assistance of a Ministry of Labour mediator, at such times and for as long as the mediator deems necessary, and bargain in good faith and make every reasonable effort to make a collective agreement with the complainant (which meetings may also be attended by representatives of the other respondents); and
that the respondent Globe Spring & Cushion Co. Ltd., at its own expense, mail a copy of the attached notice marked "Appendix" after being duly signed by an authorized representative of that respondent, to the residence of each of its bargaining unit employees, including each of its employees who is, or has been, engaging in the lawful strike which commenced on May 25, 1982.
Detailed reasons for the majority decision in this matter will issue at a later date."
The purpose of this decision is to provide those detailed reasons.
The Union and the respondents have entered into a series of collective agreements and enjoyed a relatively successful collective bargaining relationship for a number of years. The most recent of those collective agreements was entered into on August 26, 1980, and remained in force until March 31, 1982. The parties to that agreement were the Union, the three respondents, and two other companies, Regal Arc Limited and Acme Spring Products Ltd. During the current round of negotiations which gave rise to this complaint, the respondents have continued to bargain together through a common bargaining committee.
During January of 1982 the Union gave the respondents (and the other parties to the collective agreement) notice to bargain. The Union forwarded a comprehensive set of proposals to Bruce Binning, who was the lawyer representing the employers for purposes of collective bargaining. The first negotiation meeting between the Union and the employers' representatives was held on March 18, 1982. The Union's bargaining committee consisted of Fortunato Rao (a Staff Representative who has been with the Union for sixteen years), M. Baird (an employee of Globe), H. Patel (an employee of Kelson), I. DeRose (an employee of Regal), and A. Jameeu (an employee of Acme). The members of the employers' bargaining committee were Mr. Binning, Harry and Malcolm Marcus (for Globe), Henry Kelson (for Kelson), Ken Rasminsky (for Regal) and Vito Mauro (for Acme).
A second bargaining session was held on March 30th, the day on which the Union applied for conciliation. A conciliation meeting was held on May 4th and the committees met with a mediator on May 19th. On May 25th the employees voted to reject the employers' offer, which included a wage increase of 5% on April 1, 1982 and 2% on January 1, 1982 for a one year collective agreement (to be in force from April 1, 1982 to March 31, 1983), and embarked upon a lawful strike that same day. The Union's monetary demand at that time was 10% for a one year agreement "plus some changes in language and benefits", although it "had not shut the door to a two year agreement".
With the commencement of the strike, R. M. Parry (who was counsel for the respondents at the hearing of this matter) replaced Mr. Binning as the lawyer on the employers' bargaining committee to meet on the afternoon of May 26th in a room provided by the Company at the Yorkdale Holiday Inn, while Mr. Parry met with the employers' representatives in another room. After about three hours of discussion, those meetings adjourned without a settlement having been achieved.
At a meeting convened by the mediator on June 10th, the employers tabled a new offer which included proposed wage increases of 7% ("over existing rates") on ratification, 7% ("over then existing rates") on April 1, 1983, and 2% ("over then existing rates") on April 1, 1984 (for an April 1, 1982 to November 30, 1984 collective agreement). Although the Union had not revised its demand for a 10% increase for a one year contract, it placed the employers' June 10th proposal before the membership on June 13th. After Mr. Rao had explained the proposal "article by article" and had "made it loud and clear that the bargaining committee was not recommending the proposal but [that] the decision was in [the members'] hands", 74 members voted to reject the offer and only 21 members voted in favour of accepting it.
Late in the afternoon on Monday June 14th, 5. Gandhan, one of the employees on the Globe picket line, telephoned Mr. Rao at his office and told him that the employees had received an offer from management which they had voted on and. accepted. Mr. Rao informed Mr. Gandhan that it was "wrong and illegal for management to do what they did with the workers" and requested him to relay that information to the people on the picket line. Mr. Rao also received a telephone call that afternoon from Gary Kilmer, a Union Steward employed by Globe, who asked him to call management.
Mr. Kilmer was summoned to testify before the Board by the Union. We found him to be a candid witness whose credible testimony we accept without reservation. Mr. Kilmer told the Board that he and several other Globe employees who were on the picket line went into Globe's front office at approximately 10:30 a.m. on Monday June 14th. It appears that some of the picketing employees had entered the lobby of their own volition from time to time during the strike for the purpose of having coffee and discussing the strike. While they were in the lobby on the morning in question, Mr. Kilmer and approximately seven other Globe employees approached Harry Marcus, who invited them into his office. The employees expressed concern that no bargaining sessions were being held between management and the Union. They also discussed with management many of the matters in dispute, including Globe's proposal to reduce the piecework rate for "Box Spring Grid Stapler" by 10%. When Mr. Kilmer asked if the proposed reduction could be revised from 10% to 5%, Mr. Marcus said, "Yes, it's agreeable." Mr. Kilmer also asked "if there'd be an offer made on safety boots" and was offered "$15.00". When Mr. Kilmer said that $15.00 was not enough, management "increased their offer to $20.00". The employees then told management that they would "have to take it outside to the men". Other items which the group discussed with Harry Marcus included shift premium, holidays, overtime pay, vacation pay, "seniority on a departmental basis", "weekly indemnity", and the employees' preference for an increase of "7% and 7% over 2 years" instead of 7%, 7%, and 2 %" over a longer period.
The "discussions" between management and the group of employees lasted for about three hours. Malcolm Marcus, who was the sole witness called by the respondents in these proceedings, was present during only part of that time since he arrived after the employees began talking with his father, left about an hour later, and subsequently returned at a time when the discussions were still ongoing. Thus, his denial that the Company bargained directly with the employees that day is of limited evidentiary value in the absence of similar testimony from his father who was present throughout the discussions with the employees that day. Moreover, having regard to our assessment of their relative credibility, we prefer the evidence of Mr. Kilmer where it conflicts with that of Malcolm Marcus whose recollection of the events in question was somewhat limited. In making our findings of fact, we have also had regard to the failure of Globe to call Harry Marcus as a witness despite the fact that he was in attendance at the hearing (having been summonsed, but not called, by the complainant). The fact that Globe did not call Mr. Marcus to testify in the circumstances of this case justifies the Board in drawing the inference that his evidence would have been unfavourable to Globe's case, or at least would not have supported it (see B & S Furniture Manufacturing Limited, [1980] OLRB Rep. May 645, and the authorities contained therein).
After that meeting, Mr. Kilmer telephoned Mr. Rao, briefly advised him of what had transpired, and asked him to call management. Mr. Rao was in a meeting concerning another matter when he received Mr. Kilmer's call. At the conclusion of that meeting (at approximately 5:00 p.m.) Mr. Rao telephoned Malcolm Marcus, confronted him with the information that he had received from Mr. Kilmer and the other employees, and told him that what the Company had done was "wrong and illegal". Although Mr. Marcus told the Board that he immediately denied Mr. Rao's allegation that management had been bargaining directly with employees, we accept Mr. Rao's evidence that Mr. Marcus did not deny that allegation, but rather attempted to make light of it. Mr. Marcus accepted Mr. Rao's suggestion that he meet with Mr. Rao and the President of Local 7291 that evening at 6:00 p.m. at the Columbus Centre. Mr. Marcus then spoke with Mr. Parry and with representatives of Kelson and Regal.
At the meeting at the Columbus Centre, Malcolm Marcus gave Mr. Rao a copy of a revised employers' proposal that included a number of the items which management had discussed with employees earlier that day, including the reduction of Globe's piecework rate for "Box Spring Grid Stapler" by only 5 %, instead of 10% as previously proposed to the Union; the revision of the expiry date of the proposed collective agreement from November 30, 1984, to March 10, 1984, with a concomitant deletion of the previously proposed 2% increase on April 1, 1984; and an employer contribution of "$20.00 per employee per year toward the purchase of safety shoes". The proposal also contained a number of other contract improvements which had not previously been offered to the Union, such as four weeks' paid vacation after fourteen years instead of fifteen years, a lOC increase in the afternoon shift premium, a 15C increase in the night shift premium, the upgrading of the wage rate for truck drivers from "Class VI" to "Class VII", an increase in the "weekly indemnity" maximum from $133.00 per week to $160.00 per week, and an additional "2 hrs. day before X-mas" and "2 hrs. day before New Years" holidays. It also contained a new employers' proposal that seniority be changed from being on a "plant-wide" basis to a "departmental basis"; however, when Mr. Rao described the "problems" that could arise as a result of "departmental seniority", Mr. Marcus agreed to delete that item from the proposal. Although Mr. Marcus attempted in his evidence before the Board to minimize the role which management's "discussions" with the group of bargaining unit employees played in the formulation of the revised proposal that was presented to the Union that evening, we are satisfied that management's direct negotiations with employees earlier that day were quite influential in the preparation of that proposal.
After the employers' proposal had been discussed for about an hour, Mr. Rao told Malcolm Marcus that although there had been significant movement by management, he could not recommend acceptance of that proposal as there were still some unresolved issues. Mr. Marcus ten requested Mr. Rao to table a proposal that he (Mr. Rao) would be prepared to recommend to the workers, and Mr. Rao agreed to do so as soon as possible.
Later that evening Mr. Rao met at the Union hall for several hours with all of the available members of the Union bargaining committee and prepared a set of proposals which the committee was prepared to recommend to the membership. Those proposals were typed by Mr. Rao's secretary the following morning (June 15th) and were delivered to each of the employers (with the exception of Acme, which had "gone bankrupt") by Mr. Rao later that day. After receiving the Union's proposal, management contacted the bargaining unit employees with whom they had met on the previous day and requested them to come to the Globe office. Accordingly, Mr. Kilmer and other employees met with management around 6:00 p.m. on June 15th and were told that the Union's latest proposal was not acceptable but that what the Company had proposed to the employees on the previous day would stand. In response to a question by Mr. Kilmer or one of the other employees as to whether there was "any way to go around the Union", Malcolm Marcus said that there might be a way, if the employees picked a president, a vice-president, a steward, and some shop bargaining people, but that it was a matter to be decided by the employees. Management also provided the employees with copies of the written proposal which had been presented to the Union on the previous evening. At the end of the meeting, the employees told management that they would take Globe's proposal to the men for a vote on June 16th. Harry Marcus told them that the men could vote in the lunchroom or in one of the offices, but one of the employees rejected that idea because he felt that the men "wouldn't come in".
On the morning of June 16th, Mr. Rao attended at the Globe picket line and told the employees that they should not "go in to deal with Malcolm Marcus or Harry Marcus". Accordingly, he was furious when he was informed by several of the picketers at approximately 1:00 p.m. that day that "the strike was over" in that some of the employees had gone into the office, engaged in "another set of negotiations", and voted on the picket line to accept the Company's offer. He was also informed that management had told some of the Globe employees that if they returned to work and the employees at Kelson and Regal received a greater increase, they too would be given that increase, but if the employees at Kelson and Regal received less, Globe employees would nevertheless continue to receive the full amount of the increase which Globe had agreed to pay. Many of the employees, including Mr. Kilmer, crossed the picket line at Globe on June 17th and returned to work. Others planned to remain on the picket line until they received their "strike pay" on Friday June 18th and then to return to work on the following Monday.
The present complaint was filed with the Board on June 18th. On Monday June 21st the Union (in the words of Mr. Rao) "had so many brothers and sisters on the picket line that [they] were able to convince the people not to go in...." Mr. Rao also advised the Board that as of July 19, 1982, the first day of the hearing of this matter, the strike was continuing with very few employees, if any, crossing the picket line. Although Mr. Rao had discussions with Mr. Parry between June 21st and the hearing of this matter, and although the parties had a bargaining meeting on July 13th, no settlement had been achieved as of July 20, 1982 when the hearing of this matter concluded.
At the commencement of the hearing of this complaint, counsel for the respondent advised the Board that his clients were prepared to admit that they did not forward to the Union the information concerning actual wage rates being paid to bargaining unit employees prior to the commencement of the strike, which information was requested by Mr. Rao after the commencement of the strike as a result of "rumours" amongst the employees that some workers were receiving substantially greater remuneration than others in the same classification. When asked in examination in chief why Globe had refused to respond to that request for information, Malcolm Marcus replied:
"For a couple of reasons. It states right in our contract that if we want to pay some of the workers higher than the rate in the contract, we're allowed to. Since we're on strike, we didn't feel any of this information should be passed on to the Union. We've got more important issues to be resolved."
In cross-examination he added that the respondents were acting on the advise of council in refusing to divulge that information to the Union.
- Did the respondents contravene section 15 of the Act by refusing to disclose to the complainant the actual wage rates (including actual piecework rates) which their respective bargaining unit employees had been receiving prior to the lawful strike which commenced on May 25, 1982. This Board has recognized that one of the principal functions of the duty described in section 15 of the Act is "to foster rational, informed discussion": see DeVilbiss (Canada) Limited, [1976] OLRB Rep. March 49, at paragraph 15. In that case the complainant trade union asked, at its first bargaining session with the employer, to be provided with the existing wage rates and classifications of the employer. In finding the employer's refusal to provide that information to be a breach of what is now section 15 of the Act, the Board wrote (at paragraph 16):
"Of additional concern is the respondent's failure to respond to the complainant's request at this first meeting for existing wage and classification information. Particularly in 'first agreement' situations, it is little wonder that a complainant would have an incomplete monetary demand until it fully appreciated the current rate of wages paid by a respondent and the detailed nature of its job structure. Rational and informed discussion cannot easily take place until this information is provided to a trade union and thus this aspect of the duty supports its production. As a general matter of policy, if parties are to engage in economic conflict their differences ought to be real and well-defined. It is patently silly to have a trade union 'in the dark' with respect to the fairness of an employer's offer because it has insufficient information to appreciate fully the offer's significance to those in the bargaining unit. Moreover, a trade union has a duty to all of the employees in the bargaining unit and thus has to be concerned, in a large measure, with equality of treatment. (For the American experience in this area see J. H. Allison & Co (1946) 70 NLRB 377; Whitin Machine Works (1954), 217 F. 2d 593 (4th Cir.); Aluminum Ore Co. (1942), 131 F. Cir.); Yanman & Erbe Manufacturing Co. (1951) 181 F. 2d (2nd Cir.); Truitt Manufacturing Co. (1954) 110 NLRB 856; and see generally Bortosic and Hartley, [The Employer's Duty to Supply Information to the Union: A Study of the Interplay and Judicial Rationalization (1972), 58 Cornell L. Rev. 23].) Further, in the facts at hand, we have no doubt, when the totality of the respondent's conduct is considered, that the 'bad faith' aspect of the duty also effectively characterizes the respondent's failure in this regard. But, as noted above, a finding of bad faith is not a prerequisite to a finding that section 14 [now section 15] has been violated."
Although that case involved a demand for wage information at the outset of collective bargaining in a "first agreement" situation, production of such data may also be required in other circumstances. As observed by the British Columbia Labour Relations Board in Noranda Metal Industries Limited, [1975] 1 Can. LRBR 145, at 162, "[o]ne would hardly say that an employer who deliberately withheld factual data which a union needed to intelligently appraise a proposal on the bargaining table was making 'every reasonable effort to conclude a collective agreement'."
In the instant case, each of the employers' offers with respect to wage increases has been formulated as a specified percentage increase over "existing rates". Thus, it appears that the Union will not be in a position to accurately appraise the actual value of those offers without knowing what the employees' "existing rates" actually are. Furthermore, the continued existence of the Union's bargaining rights might be placed in jeopardy if employees perceived the Union as permitting gross wage differentials to exist within individual classifications within the bargaining unit. Although the Board has some concern about the timing of Mr. Rao's request for this information in light of the fact that as a result of the language contained in the August 26, 1980 to March 31, 1982 collective agreement, he knew at all material times that some bargaining unit employees were receiving remuneration in excess of that specified in the collective agreement, we accept his evidence that until "rumours" began to circulate after the strike commenced, he thought that the differentials were merely a matter of "cents, not dollars", and, thus, was not unduly concerned about them. Accordingly, his failure to request the information in question at or near the outset of negotiations does not, in the circumstances of this case, preclude his subsequent request for same. Moreover, the rumours which have apparently been circulating among at least some of the employees in the bargaining unit, that some employees have been receiving rates substantially higher than those set forth in the collective agreement, may well render employee ratification of any proposal by the respondents more difficult to obtain, thus unduly prolonging the industrial conflict. The respondents' refusal to disclose this information has likely been viewed by employees as lending substance to those rumours. Thus, it may be in the interest of the respondents to reduce or eliminate needless employee dissatisfaction resulting from misperceptions concerning existing levels of remuneration, by providing them, through their bargaining agent, with the true picture.
Accordingly, the majority hereby confirms its earlier finding that the respondents contravened section 15 of the Act in the circumstances of this case by refusing to disclose to the Union the actual wage rates (including piecework rates) which their respective bargaining unit employees were receiving prior to the strike.
In addition to that contravention of section 15, on the totality of the evidence adduced in respect of this matter it is clear that Globe, through the actions of Harry Marcus and Malcolm Marcus, contravened section 67(1) of the Act by bargaining directly with some of the employees of Globe whom the Union was (and continues to be) entitled to represent. Their actions were intended to, and did in fact; interfere with the representation of bargaining unit employees by the Union. Moreover, their conduct went far beyond the ambit of the employer's right of freedom of expression guaranteed by section 64 of the Act.
In considering the extent to which an employer can lawfully communicate with bargaining unit employees during negotiations, the Board wrote as follows in A. N. Shaw Restoration Ltd., 1 1978] OLRB Rep. May 393:
"17. To what extent can an employer communicate with its employees during the negotiating process? The scheme of the Act contemplates that the acquisition of bargaining rights by a union carries with it an exclusive license to bargain on behalf of the employees in its bargaining unit. The exclusivity of the union's bargaining rights is expressly protected by section 59 [now section 67], which reads:
- (1) No employer, employers' organization or person acting on behalf of an employer or an employer's organization shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any person or another trade union or a council of trade unions on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.
(2) No trade union, council of trade unions of person acting on behalf of a trade union or council of trade unions shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers' organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.
This section prohibits employers from bargaining directly with employees represented by a bargaining agent, and rival unions from bargaining on behalf of such employees.
- The existence of this well-established principle of exclusivity of bargaining rights means that employers must be circumspect when communicating with employees represented by a bargaining agent, especially when these communications occur during the course of negotiations. The need for circumspection on the part of employers, however, does not mean that all communications between employer and employees are prohibited. Section 56 [now section 64] of the Act, prohibiting employer interference with the formation, selection or administration of a trade union or the representation of employees by a trade union, expressly provides that this very general prohibition does not 'deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence'. Where communications occur between employer and employees during negotiations, the Board must draw a line dividing legitimate freedom of expression from illegal encroachments upon the union's exclusive right to bargain on behalf of the employees. The line is not an easy one to find, and can only be discovered by asking whether such communications in reality represent an attempt to bargain directly with the employees. If employer communications can be characterized in this manner, they must be regarded as unduly influencing employees and, therefore, falling outside the protection provided to freedom of expression in section 56. Once outside this protected area, such communications can be characterized as a violation of section 59 of the Act, and also a violation of the duty to bargain in good faith if they serve to undermine the viability of the bargaining agent.
(See also Radio Shack, [1979] OLRB Rep. Dec. 1220 at paragraph 75; and The Citizen, [1979] OLRB Rep. Mar. 177.)
In the present case it cannot be said that management was merely attempting to explain its bargaining position to the employees, to set the record straight by clearing up a perceived misunderstanding on the part of employees, or to otherwise lawfully exercise its right of freedom of speech. The employee initiated discussions became, through the reactions of management, a bargaining session at which proposals and counterproposals were exchanged on a number of significant issues on June 14th. Although management met with the Union later that day, it met directly with the group of bargaining unit employees again on June 15th, and arranged for an informal employee "vote" to be taken concerning Globe's proposal on the following day.
While Malcolm Marcus may have initially advised the employees on June 14th that Globe could only bargain with the Union which was their legal bargaining agent, it is apparent that neither he nor his father adhered to that position. By bargaining directly with employees, management sought to weaken the Union's bargaining strength by obtaining a commitment from individual bargaining unit employees to support particular settlement proposals, in the formulation of which they had been directly involved. While the initial approach was made by a group of employees who were concerned about the lack of progress in negotiations between the Union and Globe, management improperly utilized the overture as a basis for engaging in illegal direct negotiations with bargaining.
Management's direct bargaining with those employees contravened not only sections 64 and 67 of the Act, but also section 15. A very important function of the bargaining duty contained in that provision is reinforcement of an employer's obligation to recognize a trade union selected by employees as their bargaining agent. (see, DeVilbiss (Canada) Limited, supra, and the authorities referred to in that decision). Attempts by an employer to bargain directly with his employees undermine that obligation and, therefore, are antithetical to good faith collective bargaining and the duty to make every reasonable effort to make a collective agreement. Although cases in which section 15 is called upon to play that reinforcing role generally occur in "first agreement" situations, they can also arise in the context of negotiations for renewal of a collective agreement.
As indicated above, to remedy those contraventions of the Act, the Board ordered Globe to cease and desist from contravening sections 15, 64, and 67(1) of the Act, to convene a series of bargaining meetings between itself and the Union with the assistance of a Ministry of Labour mediator, and to mail a copy of a notice prepared by the Board to the residence of each of its bargaining unit employees, including each of its employees engaging in the lawful strike which commenced on May 25, 1982. Although counsel for the Union also sought an award of damages, the Board declined to grant that remedy in the circumstances of this case. One of the reasons that damages were not awarded in this case is that it is far from apparent that the Union, or the employees
whom it represents, suffered any actual monetary loss as a result of Globe's contraventions of the Act. Although counsel for the Union suggested that management's conduct may have prolonged negotiations, we are not satisfied on the basis of the evidence before us that such has been the case. At the time of the illegal conduct, a lawful strike had been in progress for several weeks, the parties were at impasse, and no further bargaining sessions had been scheduled. Although management's illegal conduct temporarily weakened the effectiveness of the strike by inducing some of Globe's employees to cross the picket line on Thursday June 17th and Friday June 18th, the effectiveness of the strike was fully restored on the following Monday. Moreover, it cannot be said that the only reason that employees of Globe were on strike after June 20th was the employer's illegal conduct. (Cf. Fotomat Canada Limited, [1982] OLRB Rep. July 1020.) On the contrary, it may reasonably be inferred from the evidence before us in this matter that the strike continued because of the Union's determination to obtain a settlement which adequately fulfilled its collective bargaining objectives. Thus, there is no evidence that the employer's actions permanently weakened the employees' determination to obtain improved terms and conditions of employment through legal economic sanctions applied against the employer in the context of collective bargaining. Indeed, management's conduct may well have "backfired" by rekindling the resolve which had earlier prompted employees to withdraw their labour.
- Furthermore, it appears to the Board that what the Union actually seeks in the present case is punitive damages, rather than compensatory damages of the type usually awarded by the Board. Where it is of the opinion that penal sanctions could be appropriate in respect of a violation of the Act, the Board may grant leave to prosecute under section 101 of the Act in response to a timely application. However, where as in the present case, employer misconduct can be promptly and adequately redressed by other remedial action, penal sanctions are neither desirable nor appropriate. This is not a "first contract" situation in which an employer has engaged in a series of anti-union activities designed to thwart employee desires for collective bargaining. Rather, it is a case involving an established collective bargaining relationship which has yielded a series of collective agreements, but has been temporarily derailed by management's failure to resist the temptation of attempting to bring an end to a lawful strike by bargaining directly with some of its striking employees. The Board's remedial order, issued shortly after the hearing of this matter, was designed to get that relationship back on the tracks as quickly as possible so that the parties could focus their energies once again on the collective bargaining process rather than on the Board's adjudicative process. Retaining jurisdiction to award or quantify damages in the event that negotiations prove unsuccessful (as suggested by Union counsel), could serve to unduly prolong the diversion of the parties' attention from the collective bargaining process. As recently noted by the Board in Canada Cement Lafarge Ltd., [1981] OLRB Rep. Dec. 1722, at paragraph 26:
not all violations [of the bargaining duty], be they by employers or trade unions, are properly remedied by monetary compensation. For example, failures to rationally discuss items as in CIL, [1976] Rep. May 199 or to provide vital information as in De Vilbis, supra, are best remedied by a simple direction. Even if there exists the possibility of some monetary loss occasioned by the resulting delay, this Board should, in the normal course of events, be reluctant to evaluate the loss in monetary terms. Serious consideration of such claims may deflect the Board and the parties from the central purpose of the complaint and add unwarranted time in the processing of such matters. The difficult questions of causation associated with such potential loss particularly raise this spectre and with nowhere near the same justification for a compensatory approach as exists in the blatantly bad faith situation such as in Radio Shack and Fotomat, supra. Judicial approaches in respect of damage assessments draw their purpose from the substantive law of torts and contracts and therefore should not be imported wholesale into labour relations. This Board must be sensitive to the purpose of its own statute and the particular provisions being construed in fashioning remedies.
- For the foregoing reasons, the majority decision dated July 26, 1982 in this matter is hereby confirmed.
DECISION OF BOARD MEMBER W. H. WIGHTMAN;
Two aspects of the majority decision trouble me given that, whatever the state of the relationship between Globe and the union may be, the general employer/employee relationship appears to be good as evidenced by the casualness with which picketing employees visited in the premises to have coffee and conversation.
In this atmosphere it is uncomfortable to make a finding that the employer engaged in "misconduct" in its discussions which had been initiated by Gary Kilmer, a union steward and employee. Nevertheless I am bound to agree with my colleagues in finding a technical violation by the employer.
Although perhaps of less consequence, I do disagree with my colleagues in their finding regarding the refusal to disclose wage rate information. Had this been a "first agreement" situation I might see the issue in a different light. In this case, however, the union negotiated a contract provision which contemplates wage differentials within the same job category or classification. Given the nature of this enterprise the provision no doubt makes sense insofar as both parties are concerned. But it is not a first agreement situation and if the very people whose interests the union purports to represent are not prepared to tell the union what they are being paid, I find it strange that the employer should be forced to do so.
If the furtherance of a harmonious relationship between the employer and employees is one policy objective, I do not believe this decision is pursuant to that objective. I would not have found a violation in connection with the failure to disclose.
It is trite but true that this is a type of case which is invariably more happily resolved by agreement of the parties.