Ottawa Typographical Union, Local 102 v. The Winchester Press Limited, 1982 CanLII 843

[1982] OLRB Rep. February 284

1274-81-U; 1275-81-U; 1475-81-R; 1476-81-R; 1477-71-R; 1478-81-R Ottawa Typographical Union, Local 102, Complainant! Applicant, v. The Winchester Press Limited, 2Womor Publications Inc., Winchester Print (1981) Inc., Maxine Baldwin and Brian Raistrick operating under the business name of Winchester Print, Respondents.

BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. D. Bell and S. Cooke.

APPEARANCES: M. Cornish, David Brown, Richard Weatherdon, Donna Mac Naughton, Ray Larsen and Robert Earles for the complainant/applicant; Stephen Workman and W. Reginald Workman for The Winchester Press Limited; Robbin B. Cumine and John Morris for 2 Worn or Publications Inc.; and James T. Heather and Tim Sargeant for Winchester Print (1981) Inc., and Maxine Baldwin and Brian Raistrick operating under the business name of Winchester Print.

DECISION OF THE BOARD; February 10, 1982

1. File No. 1274-81-U is a complaint under section89 of the Labour Relations Act in which Ottawa Typographical Union, Local 102 (hereinafter referred to as the "Union") complains that it and the grievor Ray Larsen have been dealt with by The Winchester Press Limited (hereinafter referred to as "Press"), and by Winchester Print (1981) Inc., and Maxine Baldwin and Brian Raistrick operating under the business name of Winchester Print (here­inafter referred to as "Print") contrary to the provisions of sections 3,64, 66, 70, and 79 of the Act. File No. 1275-81-U is a section 89 complaint in which the Union complains that it and the grievor Donna MacNaughton have been dealt with by Press and by 2Womor Publications Inc. (hereinafter referred to as 2Womor") contrary to sections 3, 64, 66, 70, 79 and 80 of the Act. File No. 1475-81-R is an application under section 63 of the Act in which the Union contends that 2Womor is the successor of Press by virtue of a sale of a business. File No.1476-81-R is a section 63 application in which the Union contends that Print is the successor of Press by virtue of a sale of a business. File No. 1477-81-R is an application under section 1(4) in which the Union alleges that associated or related activities or businesses are or were carried on by Press and Print under common control or direction. File No. 1478-8 l-R is a section 1(4) application in which the Union alleges that associated or related activities are or were carried on by Press and 2Womor under common control or direction.

2. At the commencement of hearing of these six matters, the Board, in the exercise of its discretion under Rule 8 1, directed that the six files be consolidated and determined the procedure that would be followed in the consolidated proceedings.

3. Counsel for Press, 2Womor, and Print agreed that Press had sold its newspaper business to 2Womor and had sold its printing business to Print. Accordingly, they were in agreement that section 63 of the Act was applicable to the transactions in question. However, they denied that section 1(4) was applicable and contended that their concession as to the applicability of section 63 precluded the Union from proceeding with its application under section 1(4). In response to those submissions, counsel for the Union indicated that her client was not satisfied that section 1(4) was inapplicable. She noted that the section 1(4) applications filed by the Union made it clear that the Union only requested relief under section 63 in the event that the Board declined to grant relief under section 1(4). It was her position that although the Board has a discretion as to whether or not to grant relief under section 1(4), that discretion can only be exercised after the Board has heard the application. Thus, she submitted that the Board has no discretion to refuse to hear a section 1(4) application. After recessing to consider the submissions of the parties, the Board ruled that it would hear the section 1(4) applications together with the other consolidated matters. It is not unusual for a trade union to request relief under section 1(4) and section 63 in the alternative. As reflected by the obligation imposed upon the respondents by sections 1(5) and 63(13) to "adduce at the hearing all facts within their knowledge that are material to the allegation", information concerning most if not all of the details of such transactions lies within the peculiar knowledge of the respondents (see Canada Cement Lafarge Ltd. and Point Anne Quarry Company, [1977] OLRB Rep. Jan. 5; and Guaranteed Insulation '77 Limited and Expert Insulation Limited, [1981] OLRB Rep. Oct. 1394. If respondents could shield themselves from section 1(4) by merely asserting that section 63 was applicable, the efficacy of section 1(4) would be seriously impaired. It is questionable whether the Board had a discretion to decline to hear an application under section 1(4). However, assuming without deciding that such discretion does exist, the Board was (and continues to be) of the view that this was nevertheless an appropriate case in which to proceed to hear the section 1(4) applications, particularly in view of the remedial implications that section 1(4) declarations might have had with respect to the section 89 complaints. Accordingly, the Board called upon the respondents to fulfill their respective obligations under section 1(5) to adduce all facts within their knowledge material to the respective allegations that they are or were under common control or direction.

4. During the argument stage of these proceedings, counsel for the Union indicated that, having heard the respondents' evidence with respect to the section 1(4) applications, she was prepared to concede that there was no evidence before the Board that would support a declaration under section 1(4). She further indicated that she was prepared to join with counsel for the respondents in consenting to section 63 declarations.

5. By decision dated July 28, 1981 in File No. 0719-81-R (unreported), another panel of the Board, chaired by the present Vice-Chairman, certified the Union as bargaining agent for the following bargaining units that were agreed upon by Press and the Union:

all employees of the respondent employed at 545 St. Lawrence Street in the Town of Winchester, Ontario, save and except Co-Publishers, President and persons regularly employed for not more than 24 hours per week" ("bargaining unit #1");

"all employees of the respondent employed at 584 Main Street in the Town of Winchester, Ontario, save and except Co-Publishers, President and persons regularly employed for not more than 24 hours per week ("bargaining unit #2").

2Womor seeks to have the Board modify the description of bargaining unit #1 to read: "all employees of 2Womor Publications Inc. employed at 545 St. Lawrence Street in the Town of Winchester, save and except the President, Vice-President, editor, production manager and persons regularly employed for not more than 24 hours per week".

7. John Morris is the President and owner of2Womor, which since September 1, 1981 has published the Winchester Press. He also publishes several other newspapers including the Prescott Journal, the Cardinal News, the Chesterville Record, the Tupper Lake Free Press and the United Counties Agrinews. His brother is the Vice-President of 2Womor and also has managerial responsibility for the Prescott Journal and the Cardinal News. Mr. Morris testified that although 2Womor does not yet have an "editor" for the Winchester Press, he plans to hire one in the future so that he and his brother do not have to be there every day. It was his evidence that the editors of his other newspapers have the power to hire, discipline and dismiss editorial staff and reporters, and also have budgetary responsibilities. However, the "news editor" presently employed by 2Womor in respect of the Winchester Press does not have such powers. It appears that 2Womor does currently employ a production manager at its Wjnchester operation. However, she was not called as a witness and the rather meagre evidence given by Mr. Morris concerning her duties and responsibilities does not indicate that she exercises managerial functions within the meaning of section l(3)(b). The Union agrees to the exclusion of "President" and "Vice-President" but opposes the exclusion of "editor" and "production manager" at the present time.

8. Print seeks to have the Board modify the description of bargaining unit #2 to read: "all employees of Winchester Print at 584 Main Street West, Winchester, Ontario, save and except production manager, persons above the rank of production manager, office and sales staff, and persons regularly employed for not more than twenty-four hours per week". The Union agrees that it would be appropriate to exclude the co-owners (Maxine Baldwin and Brian Raistrick) from that bargaining unit but opposes the exclusion of production manager, and office and sales staff. It is unclear from the evidence whether Print presently has a production manager (other than co-owner Brian Raistrick, who appears to have overall responsibility for the operation) and no evidence was adduced concerning the responsibilities of that position. Nor was there any evidence that Print employs any office and sales staff other than co-owner Maxine Baldwin. Moreover, the exclusion of the two co-owners will leave only three persons in bargaining unit #2.

9. Section 63 of the Act provides, in part, as follows:

"63(3) Where an employer on behalf of whose employees a trade union or council of trade unions, as the case may be, has been certified as bargaining agent or has given or is entitled to give notice under section 14 or 53, sells his business, the trade union, or council of trade unions continues, until the Board otherwise declares, to be the bargaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business, and the trade union or council of trade unions is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement or the renewal, with or without modifications, of the agreement then in operation and such notice has the same effect as a notice under section 14 or 53, as the case requires.

(4) Where a business was sold to a person and a trade union or council of trade unions was the bargaining agent of any of the employees in such business or a trade union or council of trade unions is the bargaining agent of the employees in any business carried on by the person to whom the business was sold, and,

(a) any question arises as to what constitutes the like bargaining unit referred to in subsection (3); or

(b) any person, trade union or council of trade unions claims that, by virtue of the operation of subsection (2) or (3), a conflict exists between the bargaining rights of the trade union or council or trade unions that represented the employees of the predecessor employer and the trade union or council of trade unions that represents the employees of the person to whom the business was sold,

the Board may, upon the application of any person, trade union or council of trade unions concerned,

(c) define the composition of the like bargaining unit referred to in subsection (3) with such modification, ~f any, as the Board considers necessary; and

(d) amend, to such extent as the Board considers necessary, any bargaining unit in any certificate issued to any trade union or any bargaining unit defined in any collective agreement.

(6) Notwithstanding subsections (2) and (3), where a business was sold to a person who carries on one or more other businesses and a trade union or council of trade unions is the bargaining agent of the employees in any of the businesses and such person intermingles the employees of one of the businesses with those of another of the businesses, the Board may, upon the application of any person, trade union or council of trade unions concerned,

(a) declare that the person to whom the business was sold is no longer bound by the collective agreement referred to in subsection (2);

(b) determine whether the employees concerned constitute one or more appropriate bargaining units;

(c) declare which trade union, trade unions or council of trade unions, if any, shall be the bargaining agent or agents for the employees in such unit or units; and

(d) amend, to such extent as the Board considers necessary, any certificate issued to any trade union or council of trade unions or any bargaining unit defined in any collective agreement."

(emphasis added)

Different considerations are taken into account by the Board in determining bargaining units in applications under section 63 than are taken into account by the Board in certification applications since, except in special circumstances such as where an intermingling of employees has occurred, that section provides that the trade union continues to hold its bargaining rights "in the like bargaining unit". Thus, in applying section 63 where there has been no intermingling of employees, "the Board must consider not only what would be an appropriate bargaining unit in a certification proceeding but also it must take into account, and in large measure be governed by, the scope of the bargaining unit already in existence" (see The Oshawa Wholesale Limited,[1975] OLRB Rep. Feb. 584). As stated by the Board in City of Peterborough, [1979] OLRB Rep. Feb. 133, at paragraph 13:

"The consistent point of departure in the decisions of the Board in applications under section 55 [now section 63] of the Act is a recognition that the primary purpose of the section is the preservation of employees' bargaining rights upon the transfer of a business. The section protects employees of a transferred undertaking against automatically losing their union or seeing their bargaining rights transferred to a bargaining agent not of their choosing. Thus while the remedial scope of the section allows the Board to engage in an assessment of what is the appropriate bargaining unit the criteria to be applied are not identical to those which obtain in an application for certification of previously unrepresented employees. While the Board may have regard to all of the criteria that apply to that determination in certification proceedings it must also, having regard to the purpose of section 55, seek to balance the interests of the employees of the transferred undertaking and their union with the interests of both the employer purchasing the undertaking as well as the interests of that employer's existing employees and their union. In the fashioning or amending of bargaining units under section 55 of the Act the Board must give effect to existing bargaining rights to the extent that those rights can be reasonably accommodated within the new employer's administrative structures. (Oshawa Wholesale Ltd., [1965] OLRB Rep. Feb. 504; The Corp. of the City of Kitchener, [1973] OLRB Rep. June 306; Yarntex Perth, Division of Yarntex Corporation Ltd.,[1975] OLRB Rep. Feb. 137)."

(See also Parkwood Hospital, [1980] OLRB Rep. May 759.)

10. Although the existing bargaining units in this case have not withstood the test of time by being incorporated into a succession of collective agreements, the Board is nevertheless of the view that they should not be lightly altered in the absence of compelling labour relations considerations. The issuance by the Board of the certificates in question in July of 1981 has created legitimate expectations on the part of employees in each of the bargaining units that they will be represented by the Union in collective bargaining with respect to their terms and conditions of employment. No compelling reason has been shown for excluding non-existent classifications. The Act provides a procedure under section 106(2) whereby the Board can conclusively determine, inter a/ia, whether a person promoted or hired into a newly created classification is an employee within the meaning of the Act (see Westmount Hospital, [1980] OLRB Rep. Oct. 1572). Thus, if the parties are unable to resolve by agreement any such issue that may arise in future, the matter may be referred to the Board for determination in accordance with its normal procedures under section 106(2), which will permit a decision to be made in the light of appropriate evidence concerning the duties and responsibilities actually undertaken and performed by the person(s) in question.

11. Accordingly, having regard to all of the evidence and the submissions of the parties, the Board, pursuant to section 63(4) of the Act defines the composition of the like bargaining units as follows:

Bargaining Unit #1

All employees of 2Womor Publications Inc. employed at 545 St. Lawrence Street in the Town of Winchester, Ontario, save and except President, Vice-President, and persons regularly employed for not more than twenty-four hours per week.

Bargaining Unit #2

All employees of Winchester Print (1981) Inc., and Maxine Baldwin and Brain Raistrick operating under the business name of Winchester Print, at 584 Main Street West, in the Town of Winchester, Ontario, save and except co-owners, and persons regularly employed for not more than twenty-four hours per week.

12. Having regard to the agreement of the parties and all of the evidence adduced before us, the Board declares that a sale of a business from The Winchester Press Limited to 2Womor Publications Inc. occurred on or about September 1, 1981. The Union was therefore entitled to give notice to bargain to that successor employer pursuant to section 63(3) of the Act as it did on or about September 10, 1981. It follows from this declaration that the Union is the bargaining agent for the employees in bargaining unit #1 as set forth in the preceding paragraph of this decision.

13. Having further regard to the agreement of the parties and all of the evidence adduced before us, the Board declares that a sale of a business from The Winchester Press Limited to Winchester Print (1981) Inc., and Maxine Baldwin and Brian Raistrick operating under the business name of Winchester Print, occurred on or about September 1, 1981. The Union was therefore entitled to give notice to bargain to the successor employer pursuant to section 63(3) of the Act as it did on or about September 9, 1981. It follows from this declaration that the Union is the bargaining agent for the employees in bargaining unit #2 as set forth in paragraph I 1 of this decision.

14. Having disposed of the applications under sections 1(4) and 63, we will now consider the section 89 complaints filed by the Union. The central thrust of those complaints is the alleged refusal by Press to continue to employ the grievors, Donna MacNaughton and Ray Larsen, the alleged refusal by 2Womor to employ or to continue to employ Donna MacNaughton, and the alleged refusal by Print to employ or to continue to employ Ray Larsen. The Union also alleges that the section 79 "statutory freeze" has been contravened.

15. Prior to September 1981, the Winchester Press had been a family owned and operated newspaper for many years. It enjoyed an excellent reputation in the newspaper business and was ranked as one of the best community newspapers in Canada. However, financial pressures, health problems of the owners and co-publishers, and the desire of their sons to leave the business for other pursuits led President W. R. Workman and co-owner R. G. Workman to advertise the business for sale nationally in the early summer of 1981.

16. The Workmans were unaware of any organizational activities by the Union until they received from the Board notice of the Union's application for certification on or about July 10, 1981. W. R. Workman testified that he was "quite surprised" by the application since he thought that he had always treated his employees "right" and had "never heard anything to the contrary". He conceded that he "wasn't delighted that the Union arrived." Mr. Workman's lack of delight is clearly indicated by the actions which he took shortly after he read the materials received from the Board in connection with the Union's certification application. Before posting the Form 5 Notice to Employees of Application for Certification, Mr. Workman held a captive audience meeting with his employees at which he asked if any of them had been in contact with anyone from the Union. At the meeting he clearly conveyed to employees that he was very upset and disappointed with their involvement in the certification application. He also told them that a nearby community newspaper that had recently entered into a collective agreement with the Union would likely "fold" within a year since it could not afford to pay the wages required by that agreement. He told the employees that the application "couldn't have come at a worse time" and also stated: "There are measures that I can take but I won't mention these at this time." After Mr. Workman left that meeting, his secretary Maxine Baldwin also expressed opposition to unionization. Later that day she called the employees together and circulated two documents which she had prepared, one being a list of specimen signatures for the Board and the other being an anti-union petition. She also invited employees to come to her office, that was adjacent to W. R. Workman's office, to sign the petition. At another employee meeting called during working hours on the following day, W. R. Workman's son Tom interrogated employees concerning who had contacted the Union and told them that his father was disappointed and hurt. He also said that legal action could be taken against employees who were lying about their involvement in the Union. Later that day, Tom Workman approached Ms. MacNaughton and asked why she had lied about having any meetings and contact with the Union. When she said, "Meetings? What Meetings?" he replied "Come on. You know what meetings I'm talking about. You were there." He also asked her who had labeled Ms. Baldwin as "office manager". W. R. Workman also approached at least one employee that day and told her that he had done favours for several people in the office and that he "needed one from [her] now". He also said, with obvious reference to the certification application, "This thing will break this business."

17. On the following Monday, W. R. Workman held a further captive audience meeting with employees, at which he told them that he was personally embarrassed by the application for certification because he was a former President of the Onatrio Community Newspapers Association (whose members are "relatively free of union representation"). At that meeting he "singled out" a number of individual employees upon whom he had previously bestowed certain unwritten personal benefits. He also indicated to employees that the company was losing money and held up a cash flow statement that he said showed a "paper deficit". He told employees that the certification application might "break up his business". He also told employees that the business was in the process of being sold and that a Union could jeopardize any possible sale.

18. In the reply which he filed with the Board in respect of the certification application, W. R. Workman listed the following "objections" to the application:

"1. The Winchester Press Limited has been in existence for nearly 100 years, more than 60 in association with the Workman family, operating with some success and a great deal of respect, and without a union.

2. Working conditions are generally excellent. Salaries are reasonable and are reviewed yearly with increases each year over the last five years ranging in the 10 per cent bracket. Benefits are numerous, but not listed in a contract.

3. At no time has there ever been a delegation of staff outlining discontent to management. The working arrangement between owner and employee is a one on one basis where consultation and not confrontation has been the rule.

4. The clandestine meeting of only a part of the staff with union representatives was unfair to other staff members who could not voice an opinion, deceitful and lacking principle in the manner in which it was held.

5. The Winchester Press has been a leader in its field because of a combination of good staff and good management. Both owners, R. G. Workman and W. R. Workman have taken active roles in the life of their communities and the province. R. G. Workman is a former deputy reeve of Winchester, Ontario, just one of the many offices he has filled. W. R. Workman is a former president of the Ontario Community Newspapers Association, a former executive member of the Board of Directors of Ontario Place and is currently a member of the Ontario Development Corporation. They have long been highly respected and honorable people, and they have operated The Winchester Press Limited with the same degree of integrity.

6. At the present time The Winchester Press Limited is in the process of being sold or at least in the process of determining a sale to a suitable buyer. The firm has been nationally advertised in both the Globe and Mail (June 23. 1981) and The Financial Post (June 27, 1981) and respondents to the advertisements are currently being reviewed by this firm and its accountants. We understand there have also been offers to purchase the printing end of the business. Until this time it was premature to mention that serious efforts would be made to sell all or at least a part of the business to some members of the staff, or to work out another arrangement with staff members if that were possible. Failing that and failing materialization of the sale, plans have been underway for more than a year to phase out the printing end of the business. The reasons for selling are numerous, but chief among them are the decisions of the Workman sons not to pursue their careers in the newspaper (family) business, and failing health on the part of both owners. It is felt that efforts to unionize at this time could severely hamper any or all of these possible transactions, and could cause undue strain on the owners.

7. The split that has developed since notification of application has torn this office apart, a condition never before known to this business. It is a situation, unfortunately, that will take a long time to heal. Indeed, it is doubtful if the business will survive."

8. Stephen Workman who acted as counsel for Press also testified in his capacity as an officer (Vice-President Administration) of that respondent in these proceedings. He told the Board that he also served as counsel for Press in relation to the Union's application for certification and that he had been an officer of the corporation "since the certification process began". During cross-examination he advised the Board that prior to the scheduled date for the certification hearing, he received from Mr. Baldwin and other employees copies of employee petitions in opposition to the certification of the Union. After referring to a copy of a petition contained in his file, he told the Board, "I think my brother Tom Workman gave me the copy of it. Parties were aware that I was acting on behalf of [Press] so the parties gave me copies. I can't honestly say how they got into my files. I was aware that the petitioners were to appear [at the certification hearing]. I subpoenaed some of them.... I wanted to be sure that they came to the hearing. I was aware that the Board didn't have to take into consideration the petitions unless they came.

9. Prior to the certification hearing scheduled in File No. 0719-81-R, the parties to the application met with a Board Officer, reached agreement on all matters in dispute among them and agreed to waive their right to a formal hearing. It was submitted on behalf of Press that the company's willingness to resolve that matter by agreement was inconsistent with the existence of anti-union animus on the part of its management. However, we infer from Stephen Workman's evidence during cross-examination that the "value judgment" that he made concerning the company's position with respect to the certification proceedings was primarily based upon his concern about the adverse effect which testifying and being subjected to rigorous cross-examination might have on his father's health. It appears that it may also have been based in part upon his concern that he had only been able to subpoena three of the petitioners because "the Board did not send [him] enough subpoenas". Thus, in the circumstances of this case, we do not find that the position ultimately adopted by Press in respect to the certification proceedings demonstrates that the anti-union attitude displayed by W. R. Workman after he became aware of that application, had ceased to exist by late July. Indeed W. R. Workman's testimony and demeanor during the present proceedings leave the Board with no doubt whatsoever that he continued at all material times to be very strongly opposed to unionization and other activities protected by the Labour Relations Act.

10. Ms. MacNaughton was hired by Press in April of 1976 as a paste-up artist after she graduated from St. Lawrence College where she majored in graphic design. In 1978 she accepted an offer to learn to be a display advertising salesperson for Press. Thus, she began to attend at various business to sell display advertising. She also continued to work in the paste­up room and to perform a number of other tasks for Press including proofreading parts of the paper, operating the headline machine, opaquing pages, "measuring the paper" (to determine the percentage of advertising, for postage purposes), doing the "dead ad" list, helping to collate the paper at the printing plant and occasionally taking orders for classified advertise­ments. At the request of W. R. Workman, she helped to train Karen Holmes to sell display advertising in the early summer of 1981. Before that, Ms. Holmes, who was hired approximately one month after Ms. MacNaughton, had worked in paste-up, taken classified ads, worked on the compuwriter, and done some clerical work in the front office.

11. Ms. MacNaughton was the employee who made the initial contact with Richard Weatherdon, a representative of the Union. After having three telephone conversations with him, she arranged to meet with him in Ottawa on June 24, 1981. Mr. Larsen accompanied her at that meeting at which they both signed Union cards. That evening, Ms. MacNaughton invited a number of Press employees to attend a meeting at her home to discuss unionization. She chaired the meeting and informed those in attendance of the steps that she had taken. A second meeting was held the following evening at Mr. Larsen's home where Mr. Weatherdon spoke to some of the Press employees. Ms. MacNaughton was one of the employees who attended the certification hearing on behalf of the Union.

12. As indicated above, on or about September 1, 1981, John Morris purchased the newspaper part of the business that had been operated by Press. Mr. Morris impressed us as a candid witness with a retentive memory, whose evidence we accept without hesitation or reservation. He has been in the newspaper business for approximately thirty years and has acquired a number of community newspapers over the years.

13. At least one of his newspapers (the Chesterville Record) has operated in competition with The Winchester Press for a number of years. In 1977 or 1978 Mr. Morris considered the acquisition of the Workmans' newspaper but did not have sufficient financial resources to do so. In early June of 1981, W. R. Workman contacted Mr. Morris and advised him that the paper was for sale. However, Mr. Morris told him that he was not interested because he had committed a large sum of money to an expansion program in Prescott. Near the end of July, Mr. Workman again contacted Mr. Morris and told him that his son (Tom Workman) was leaving the business and that he (W. R. Workman) and his brother "wanted out". Accordingly, he asked Mr. Morris if he would be interested in acquiring the paper "if the terms were very good". Mr. Morris, who was about to leave for vacation, agreed to contact Mr. Workman when he returned. Serious discussions with respect to the potential sale commenced on August 10, 1981 and culminated near the end of August in an agreement by Mr. Morris to purchase the newspaper aspect of the business.

14. Mr. Morris testified that he knew "right from the start" that the Union had applied for certification. During June of 1981, W. R. Workman telephoned Mr. Morris, a Director of the Ontario Community Newspaper Association, to ask if the Association had any resources available to assist him in determining how to respond to the application for certification that had been received by Press. Mr. Morris described Mr. Workman as being "pretty upset" about the application and "concerned about what to do". He told Mr. Workman that the Association did not have any such resources and advised him to "learn to live with it" and "get a good lawyer". Mr. Workman later informed Mr. Morris (near the end of July) that two bargaining units had been certified — a newspaper unit and a printing unit. Mr. Morris told the Board: "I was prepared to negotiate to purchase something where a certificate existed." He also testified that he was aware while he was negotiating to purchase the newspaper that he would likely have to bargain with the Union if he purchased it. He candidly admitted that the Union "was of some concern" to him since he had never dealt with a union before and was uncertain how it would affect his day to day operations. However, he also stated: "It certainly didn't scare me off."

15. Mr. Morris was also aware that Ms. MacNaughton was one of the employees who attended the certification hearing. In late July one of his employees in Chesterville (which is only six miles from Winchester) told him that it had been announced at a Labour Relations Board hearing in Toronto that he had purchased the Winchester Press. Mr. Morris, who at that time was merely in the early stages of considering a possible purchase of the newspaper, replied that he "certainly did not". Mr. Morris was very concerned about the rumor since it was his practice to personally announce any such expansions to his employees in order to assure them that their employment would not be adversely affected. He was also concerned that the Union not be given any misinformation. Accordingly, Mr. Morris was anxious to discover precisely what had been said in Toronto. He telephoned Allan Vanbridger, a sports reporter for Press (with whom he was acquainted as a result of sports information sharing between the papers and other personal contact) and was ultimately referred to Ms. Mac­Naughton who confirmed that it had been stated at the hearing in Toronto that he had purchased the paper. Mr. Morris surmised from this conversation that Ms. MacNaughton was one of the people involved with the Union but did not know what her role was. He also understood from talking with Mr. Vanbridger that several other employees had gone to Toronto for the certification hearing.

16. Near the middle of August, Mr. Morris, after completing a review of the newspaper's financial statements, gave W. R. Workman a list of the ten positions that he figured he would need to fill in order to operate the newspaper and asked Mr. Workman to pick the most versatile people for the positions because he "liked people who could do at least two and maybe three or four different functions in [his] operations". Included in the ten were one front office person and "one and one half ad sales people", because Mr. Morris was of the opinion that the "business wasn't big enough for two ad sales people".

17. W. R. Workman told the Board that prior to the closing of the sale he had to "narrow down the staff somewhat at the request of the purchasers". Consequently, they reviewed the list of employees and Mr. Workman gave Mr. Morris his evaluation of each of them with particular reference to their "value" to the business, "how they could back up" and "what role they play". Mr. Workman testified that Mr. Larsen and Ms. MacNaughton "were laid off primarily because of economics'. It was his evidence that he did not know that Mr. Larsen was Union leader but he "probably thought that Ms. MacNaughton was" because "other people intimated that". In a display of greater candor, he subsequently told the Board: "I'd figured it out that [Ms. MacNaughton] was one of the leaders. I'd be a dummy if I didn't."

18. Mr. Workman testified that one of the three people in the sales area had to be eliminated. Although Ms. MacNaughton was the highest paid and most experienced in that area, he testified that he ranked her below Wanda Dolly and Karen Holmes, the other two employees in that area, because she was less flexible and versatile than they were. Nevertheless, he conceded that he had given her a salary increase (of $300 or $350 per year) when she requested an increase in May of 1981, in addition to the normal increase received by employees at the beginning of the year. According to Mr. Workman, after discussing and reviewing the list of employees, he and Mr. Morris agreed that Ms. MacNaughton should be "laid off'. However, it is clear from the evidence that the decision to eliminate Ms. MacNaughton from the workforce was primarily W. R. Workman's and was based entirely upon his recommendation concerning her abilities, which recommendation the Board finds to have been influenced by W. R. Workman's anti-union attitude and his desire to penalize Ms. MacNaughton for the role that she played in unionizing his business. It is also clear that there was no discussion between W. R. Workman and Mr. Morris concerning which employees were leaders or members of the Union, or concerning the role played by Ms. MacNaughton in the Union. Mr. Morris neither asked for, nor was given any indication concerning any of the employees' support for or involvement in the Union. Moreover, he did not request Mr. Workman to consider any such f4ctors in recommending suitable employees to fill the positions that were available and we are satisfied he was not aware that Mr. Workman gave any weight to such factors in making his recommendations. We are also satisfied that Mr. Morris did not give any consideration to such factors in deciding whom to hire. Although he was aware at all material times that Ms. MacNaughton was a Union supporter, he was also aware that a large majority of the former employees of Press whom he hired were Union supporters. We are satisfied that Mr. Morris was not aware that Ms. MacNaughton played a greater role than other employees in organizational or Union activities. We are also satisfied that he decided not to hire Ms. MacNaughton because W. R. Workman recommended other employees as being more versatile, and that Mr. Morris, who accepted that as a bonafide recommendation, acted in good faith on the basis of Mr. Workman's recommendation.

19. After the sale of 2Womor was completed, the newspaper's display advertising sales were handled by Karen Holmes, who had only started to do display advertising work in April of 1981, and by Wanda Dolly, who had little or no experience in that aspect of the newspaper operation. Ms. Dolly was also called upon by the new owner to do paste-up work, at which she was also inexperienced. Due to her lack of experience, Ms. Dolly was less efficient than Ms. MacNaughton at paste-up and display advertising sales.

20. Having regard to all of the evidence before us, in the light of our assessment of the relative credibility of the various witnesses, we conclude that Ms. MacNaughton had more experience and was no less flexible than some of the employees who were not laid off by Press. That 2Womor would have benefited from her services if W. R. Workman had made Mr. Morris aware of her true abilities is evidenced by the fact that after purchasing the business, Mr. Morris hired a part-time employee to do "paste-up" two days a week. He did not offer that position to Ms. MacNaughton because he "understood that she did just advertising sales" and, accordingly, he "never thought of her". Moreover, Wanda Dolly, the Press employee who was employed by 2Womor to handle display advertising sales and paste-up, was less experienced and adept to such work than Ms. MacNaughton.

21. It is well-established in the Board's jurisprudence that in section 89 complaints in which it is alleged that an employer has refused to continue to employ a person because the person was or is a member of a trade union or was or is exercising any other rights under the Act, the employer must establish that the reasons given for the refusal to continue to employ the person are the only reasons and that those reasons are not tainted by anti-union motive. (See, for example, The Barrie Examiner, [1975] OLRB Rep. Oct. 745; Poppe Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299; Mount Forest Caskets Limited, [1980] OLRB Rep. June 853; B & S Furniture Manufacturing Limited, [1980] OLRB Rep. May 745; and Alpha Laboratories Inc., [1981] OLRB Rep. July 823.) For the reasons set forth above, the Board finds that Press contravened section 66 of the Act on August 27, 1981 by refusing to continue to employ Donna MacNaughton because she was a member of the Union who had played a substantial role in organizing her fellow employees. The actions of Press also contravened sections 64 and 70 of the Act. Before considering the appropriate remedial response to that illegal conduct, the Board will proceed to consider the other contraventions of the Act alleged by the Union.

22. As noted above, the Union has also alleged that the "lay-off' of Ray Larsen was a contravention of the Act and that Print contravened the Act by refusing to employ or to continue to employ Mr. Larsen after it purchased the printing plant portion of the business. Brian Raistrick, one of the co-purchasers of that aspect of the business, commenced employment with Press in 1957 and, during the course of his employment, "did everything except front office administration". When he heard in August of 1981 that the business was for sale, he approached W. R. Workman to ask if it might be possible for him and Maxine Baldwin to purchase it. Ms. Baldwin was another long service employee who had "administered the Winchester Press office for 22 years". Mr. Raistrick and Ms. Baldwin obtained professional advice from a lawyer and an accounting firm concerning the viability of the printing part of the business. Their professional advisers concluded that the expenses would be high with both Mr. Raistrick and Ms. Baldwin on the payroll. They suggested that since Mr. Raistrick, an experienced and capable printer, would be working full-time in the printing plant as one of its co-owners, one position should be eliminated because the business would not be able "to carry a high priced person" if Mr. Raistrick was also working full-time. (Prior to the sale, Mr. Raistrick had divided his time between work at the printing plant and work at the newspaper building.) Accordingly, the purchasers decided that Mr. Larsen, "who was the highest paid person in the [printing plant] group other than [Mr. Raistrick]", would not be employed by Print. Mr. Workman agreed to "lay-off' Mr. Larsen and to be responsible for any severance pay to which he was entitled.

23. Having regard to all of the circumstances, including the fact that W. R. Workman was not at the time of the lay-off aware of the role that Mr. Larsen had played in the Union's organizational activities, we are satisfied that anti-union animus did not form any part of the motivation for the lay-off of Mr. Larsen by Press. Moreover, although Mr. Raistrick was aware at all material times that Mr. Larsen was an active supporter of the Union, we are satisfied that Mr. Raistrick's decision not to employ Mr. Larsen was based exclusively on bona fide economic considerations and was not tainted by anti-union animus. We are confirmed in that view by the fact that Mr. Raistrick had himself attended an organizational meeting and signed a Union card at Mr. Larsen's home (although he subsequently signed a petition in opposition to the Union because he felt that signing a Union card after having been employed by W. R. Workman for twenty-five years was not an appropriate thing to do since he thought that Mr. Workman would be very disappointed in him). We are further confirmed in that view by the fact that Mr. Raistrick had always enjoyed a friendly working relationship with Mr. Larsen. Indeed, Mr. Raistrick, whom we found to be a credible witness, testified that if the business goes well, Mr. Larsen would "probably be the first person [he] would ask back because [he] has worked with Mr. Larsen and [knows] he can work". Moreover, Mr. Raistrick was aware that he was purchasing a unionized printing business and that he would be required to bargain with the union.

24. Counsel for the Union also contended that the Press contravened section 79 by "laying-off' Ms. MacNaughton and Mr. Larsen. Although the evidence indicates that Press had only occasionally laid-off employees in the past, due to W. R. Workman's concern for the well-being and continued employment of the individual members of his workforce, we are satisfied that the change of circumstances created by the impending sales of the two parts of the business to purchasers who did not need all of the persons employed by Press, created a situation in which Press could exercise its management right to lay-off employees in response to altered economic or business circumstances without contravening section 79 of the Act. The ability of Press to lay-off employees for bona fide business reasons was a "right, privilege or duty of the employer" that was preserved by section 79 (see Corporation of the Town of Petrolia, [1981] OLRB Rep. March 261, and the authorities cited therein).

25. For the foregoing reasons, the Board finds that Press did not contravene any provision of the Act by "laying-off' Ray Larsen, and the Board further finds that Print did not contravene any provision of the Act by refusing to employ or to continue to employ Mr. Larsen.

26. Shortly after the sale of the newspaper had been completed on or about September 1, 1981, Mr. Morris initiated payment of 0. H.I.P. premiums by 2Womor on behalf of all of its new employees. He also indicated to them that he would institute a dental plan, a pension plan and Blue Cross coverage. However, none of the benefits except the payment of O.H.I.P. premiums was implemented due to the Union's objection that the introduction of such benefits without the consent of the union was prohibited by section 79 of the Act.

27. The Union does not seek an order from the Board directing 2Womor to cease paying employees' O.H.I.P. premiums. Counsel for the Union advised the Board that her client is prepared to consent to the continuance of that employee benefit. However, the Union does seek, as a matter of principle, a declaration that 2Womor contravened section 79 of the Act by implementing the new employee benefit.

28. The Board is satisfied that Mr. Morris was not attempting to impair the Union's bargaining rights by offering additional benefits to employees, but rather was merely proceeding in good faith to provide his new employees with the same benefits that the employees at all his other newspapers received. However, an employer's action need not be tainted by anti-union animus to constitute a violation of section 79; the effect of that section is to prohibit, during specified intervals, alteration of wages and any other term or condition of employment, or any right, privilege or duty of the employer, the trade union, or the employees, without any reference to the motivation of the parties (see Wellesley Hospital, [1976] OLRB Rep. July 364, at paragraph 9).

29. The purpose of the section 79 "statutory freeze" is to preserve the status quo so as to provide a period of stability free from the disturbance of unilateral change during the sensitive period while the parties are entering into negotiations for a collective agreement. (See, for example, Women's College Hospital, [1981] OLRB Rep. May 597; Corporation of the Town of Petrolia, [1981] OLRB Rep. March 261; and A.E.S. Data Limited, [1979] OLRB Rep. May 368.)

30. Counsel for 2Womor submitted that his client had not contravened section 79. He noted that under section 63(2) of the Act, the person to whom a business has been sold is only the "employer" for the purposes of a certification application where the sale occurs while that application "is before the Board". It was his submission that no such application was before the Board on September 1, 1981, the date of the sale of business from Press to 2Womor, since the Union's application for certification (File No. 0719-81-R) was disposed of by the Board on July 28, 1981. Thus, he submitted that the section 79(2) freeze did not apply to 2Womor since Press, not 2Womor, was the only "employer" to which that provision applied. He further contended that the section 79(1) freeze did not begin to operate until September 10, 1981 when the Union exercised its right under section 63(3) of the Act "to give the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement", which notice, by virtue of section 63(3) "has the same effect as a notice under section 14".

31. Counsel for the Union, on the other hand, contended that the statutory freeze began to operate when Press received notice of the application for certification and continued in operation at all material times without any "gap" resulting from the sale. She contended that 2Womor had "constructive notice" since, in her submission, 2Womor was aware that notice "was coming''.

32. An argument similar to that presented on behalf of 2Womor with respect to the interplay between sections 63 and 79 was accepted by the Board in Oxford Manor Rest Home, [1980] OLRB Rep. Dec. 1786, in which the Board wrote:

"8. The first issue to be determined by the Board is whether in the present circumstances section 70(1) [now section 79(1)] of the Act was effective to preclude any alteration of the terms and conditions of employment by the respondent as of October 15, 1980 at which time the lay-offs were effected. A condition precedent to section 70(1) becoming effective in a given situation is that 'notice has been given under section 13 [now section 14] or section 45 [now section 53]' of the Act. It is clear that the complainant in the instant case had served no notice to bargain on the respondent as of October 15, 1980. It is also clear that following its certification, the complainant served notice to bargain on the then employer as of August 11, 1980. Consequently, section 70(1) was called into operation as of August 11th and effectively precluded, amongst others, changes in terms and conditions of employment from that date onwards. The question then before the Board is whether section 55 [now section 63] of the Act in some manner extends and continues 'the freeze' in effect immediately prior to the sale in such a way that the present respondent was bound on the critical date of October 15, 1980.

9. Section 55(3) is the relevant section in this regard and its reads:

'Where an employer on behalf of whose employees a trade union or council of trade unions, as the case may be, has been certified as bargaining agent or has given or is entitled to give notice under section 13 or 45, sells his business, the trade union, or council of trade unions continues, until the Board otherwise declares, to be the bargaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business, and the trade union or council of trade unions is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making the collective agreement or the renewal, with or without modifications, of the agreement then in operation and such notice has the same effect as a notice section 13 or 45, as the case requires.'

In essence the trade union, such as in the instant case, continues 'to be the bargaining agent for the employees of the person to whom the business was sold' and 'is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement'. Nothing in the section explicitly puts the new employer into the shoes of the previous employer so as to make all the rights and obligations relating to the collective bargaining relationship automatically attach to the new employer. The fact that the Legislature has specifically set out that the trade union shall continue to be the bargaining agent and shall have the right to serve notice to bargain on the new employer, militates against there being any additional rights or privileges from any notice to bargain which may have been served on the previous employer. This view is further fortified by an examination of section 55(2) which, in dealing with a sale of business while an application for certification or termination is before the Board provides. ... . person to whom the business has been sold is... the employer for the purposes of the application as if he were named as the employer in the application.' In this latter case where the Legislature intended that the new employer should fit precisely into the shoes of the previous employer it was explicitly said so. Had the Legislature similarly intended in section 55(3) we have no doubt it would have so said. Such a conclusion, in our view, is well within the rationale of the Board's decision in the case of Hamilton Cotton Company, [1964] OLRB Rep. July 190.

10. In our view, the notice to bargain served on the previous employer on August 11, 1980 effectively continued in effect the provisions of section 70(1) insofar as the then employer, up to the time of the sale of business, and the notice of October 28, 1980 similarly brought section 70(1) into operation on that date insofar as the respondent is concerned. During the period October 8, 1980 when the sale was made and on October 28, 1980 when notice was served on the respondent section 70(1) was not operative...."

(See also, generally, Davidson-Walker Funeral Homes, [1981] OLRB Rep. Oct. 1359. However, it does not appear that any argument concerning "constructive notice" was presented to the Board in that case. In Owen Sound General and Marine Hospital, [1978] OLRB Rep. Aug. 759, the Board applied the concept of constructive notice in the context of section 2(3) of the Successor Rights (Crown Transfers) Act, R.S.O. 1980, c. 489, which provides:

"Where an undertaking is transferred from the Crown to an employer and a bargaining agent has been granted representation rights under any Act and has given or is entitled to give written notice of desire to bargain to make or renew a collective agreement in respect of employees in the undertaking, the bargaining agent continues, until the Board declares otherwise, to be the bargaining agent in respect of the employees and is entitled to give to the employer written notice to desire to bargain to make or renew, with or without modification, a collective agreement, as the case requires."

In finding constructive notice to constitute notice under that provision, which is quite similar to section 63(3) of the Labour Relations Act, the Board stated, at paragraph 16:

By operation of section 2(3) of The Successor Rights (Crown Transfers) Act, 1977, OPSEU was entitled to give to the general hospital written notice of desire to bargain to renew the three agreements it was then re-negotiating with the Crown. It is clear from the evidence that at no time did OPSEU relinquish its claim to these bargaining rights. In these circumstances, therefore, the Board is prepared to find that OPSEU's conduct amounted to constructive notice to bargain upon the transfer of the undertaking. This notice, by operation of section 10 of The Successor Rights (Crown Transfers Act), 1977, would have the same effect as the granting of representation rights or certification as bargaining agent, and would invoke subsection (I) of section 10 of The Hospital Labour Disputes Arbitration Act, R.S.O. 1970, c. 208, as amended, freezing the established pattern of the employment relation-ships of the persons falling within the OPSEU bargaining unit. This freeze would apply from the date of the transfer of the undertaking until this decision of the Board establishing rights for the new bargaining structure."

Unfortunately, that decision does not specify what was the precise conduct" of the union in

question which "amounted to constructive notice to bargain." See also [Re 380611 Ontario Ltd.

(Colonial Tavern) (1979), 1979 CanLII 3929 (ON LA)](https://www.minicounsel.ca/olaa/1979/3929), 23 L.A.C. (2d) 150, at page 156 (Adams) in which a Board of

Arbitration wrote:

"Section 70 [now section 79] of the Labour Relations Act was pointed to by the union as a possible source of rights, but a careful reading of this section does not support this claim. Nowhere in this section are individual contracts of employment made binding on a person who purchases a business during the period when the vendor, as employer, is precluded from altering the rates of wages 'or any other term or condition of employment'. Thus, even assuming s. 70(1) can be construed as prohibiting the lay-off of employees during the period therein provided, there are no words that would encumber the new owner, obligating it to continue the employment of either active employees or employees on lay­off. In other words, the new owner cannot be considered to be an employer of the grievors within the meaning of this section. Indeed, for s.70 to have any application to the new owner in the circumstances of this case, it would appear that notice to bargain must be served anew on the vendor in that s. 55(3) [now section 63(3)] provides that the union is entitled to give the person to whom the business was sold written notice of its desire to bargain'. But this is not to deny that the notion of construc­tive notice may have application in any particular case, although this concept was not urged upon the Board in the facts at hand."

44. It is unnecessary for the Board to determine in the present case whether "constructive notice" to the predecessor employer is sufficient to trigger the section 79 freeze following a sale of a business, because we are not satisfied that the Union engaged in any conduct that would amount to constructive notice. Moreover, the Union's consent, albeit belated, to 2Womor's introduction of employer payment of employer payment of O.H.I.P. premiums makes the issue essentially an academic one in the circumstances of the present case. The Board is satisfied that the benefit in question was not introduced by 2Womor for the purpose of interfering with the formation, selection or administration of the Union or the representation of its employees by the Union. If that had been the purpose and effect of its actions, 2Wormor would have contravened section 64 of the Act and the Board could grant section 89 relief regardless of whether a section 79 "statutory freeze" was or was not operative. Accordingly, even if 2Womor's introduction of that benefit had contravened section 79, no useful labour relations purpose would be served by granting a declaration to that effect based upon such a technical breach in the circumstances of this case in which 2Womor refrained from introducing any further benefits as soon as it became aware of the Union's opposition to same, and in which the Union and 2Womor are currently engaged in collective bargaining with a view to making a collective agreement.

45. It remains for the Board to determine the appropriate remedial response to Press' contravention of the Act through its refusal to continue to employ Donna MacNaughton. The Board's general response to an unfair labour practice of that sort is to direct the employer to reinstate the individual with full compensation for all lost wages and benefits sustained through the employer's violation of the Act, to pay interest on the compensation for lost wages (in accordance with the calculations described in Practice Note No. 13 dated September 18, 1980), and to post in conspicuous places on its premises a notice concerning the Board's disposition of the unfair labour practice proceeding (see, for example, Mount Forest Caskets Limited, supra, and Alpha Laboratories Inc., supra). This is clearly an appropriate case in which to order Press to pay compensation (with interest) to Ms. MacNaughton. However, the extent of the compensation payable by Press may well be affected by the appropriateness or inappropriateness of other remedies such as a direction that 2Womor offer employment to Ms. MacNaughton.

46. Counsel for the Union sought to have the Board reinstate Ms. MacNaughton by directing 2Womor to employ her. In support of that position she contended that 2Womor acted together with Press to terminate Ms. MacNaughton because she was a Union leader, or that, at the very least, 2Womor was "a party to the offence by the Workmans". She referred the Board to section 21 of the Canadian Criminal Code by which a person who aids or abets another person to commit an offence is made a party to that offence. However, while we admire the resourcefulness of counsel in seeking analogies from other areas of the law, the Board does not find that provision, and the Jurisprudence that has developed under it, to be of assistance in resolving the present case since, as conceded by counsel during her submissions, the Labour Relations Act, which is the source of this Board's jurisdiction in the present case, does not contain an equivalent provision.

47. Counsel for the Union also contended that Mr. Morris authorized Mr. Workman to act as 2Womor's agent in terminating Ms. MacNaughton and that, therefore, 2Womor is responsible for what Mr. Workman did. However, assuming without deciding that an agency relationship was established, we agree with Mr. Cumine's submission that 2Womor is not responsible on the basis of agency principles for the contravention of the Act by Press because Mr. Workman clearly exceeded the scope of any actual authority vested in him by Print when, prompted at least in part by anti-union animus, he refused to continue to employ Ms. MacNaughton and thereby contravened the act. Moreover, there is no evidence that 2Womor or Mr. Morris represented to the Union, Ms. MacNaughton, or to anyone else, that Mr. Workman had any such authority; accordingly, there is no basis for binding 2 Womor on the basis of apparent authority. (See, generally, Bowstead on Agency (14th ed. London: Sweet &. Maxwell, 1976.)

48. Ms. Cornish suggested that to avoid contravening the Act, 2Womor was required to make an independent investigation and assessment of the respective abilities of the employees of Press. However, the Board is of the view that the Act does not require a purchaser to go that far. If 2Womor's refusal to employ Ms. MacNaughton had been tainted by anti-union animus, then it would clearly have contravened the Act. Moreover, if Mr. Morris had known that Mr. Workman's decision to lay-off Ms. MacNaughton was tainted by anti-union animus, 2Womor's refusal to employ her in circumstances wherein it employed each of the other persons formerly employed by Press in its newspaper unit (with the exception of an employee who had resigned) would in all likelihood have constituted a breach of the Act. However, as indicated above, we are satisfied on the evidence before us that 2Womor did not contravene the Act in the present case by refusing to employ Ms. MacNaughton. Accordingly, it remains for the Board to consider whether it would nevertheless be appropriate to direct 2Womor to "reinstate" Ms. MacNaughton to remedy its predecessor's unfair labour practice, the effect of which has been innocently perpetuated by 2Womor.

49. In its recent decision in Sunnylea Foods Limited [1981] OLRB Rep. Nov. 1640, the Board reviewed the Canadian and American jurisprudence concerning the power of labour relations tribunals to direct an innocent successor employer to remedy an unfair labour practice committed by the predecessor employer. As noted in that decision, the Ontario arbitral and judicial authorities which have held that a successor employer is properly subjected to grievances relating to the conduct of his predecessor, regardless of whether or not the successor had actual notice of the collective agreement and whether or not the arbitration proceedings were pending at the date of the sale, are heavily dependent of the wording of section 63(2) of the Labour Relation Act which provides as follows:

"(2) Where an employer who is bound by or is a party to a collective agreement with a trade union or council of trade unions sells his business, the person to whom the business had been sold is, until the Board otherwise declares, bound by the collective agreement as if he had been a party thereto and, where an employer sells his business while an application for certification or termination of bargaining rights to which he is a party is before the Board, the person to whom the business has been sold is, until the Board otherwise declares, the employer for the purposes of the application as if he were named as the employer in the application'

(See Man of Aran (1974), 1974 CanLII 2278 (ON LA), 6 L.A.C. (2d) 238 (Shime); Woodbridge Hotel (1976), 1976 CanLII 2221 (ON LA), 13 L.A.C. (2d) 96 (Brown); and Cassin-Remco Ltd. (1980), 1979 CanLII 2013 (ON HCJ), 105 D.L.R. (3d) 138 (O.H.C.)). Moreover, as further noted in Sunnylea (at paragraph 28), the somewhat similar approach that has been adopted by the Canada Labour Relations Board, and also by the British Columbia Labour Relations Board, with respect to unfair labour practice proceedings that had been commenced, or board orders that had been issued at the time of the sale, is not directly transferrable to Ontario since the sale of business provisions in those jurisdictions are worded quite differently from section 63(3) of our Act (as set forth earlier in this decision); section 53(1) of the British Columbia Labour Code expressly provides that the purchaser of a business is "bound by all proceedings under [that] Act before the date of the sale"; section 144(1) of the Canada Labour Code provides that the person to whom a business is sold generally "becomes a party to any proceeding taken under the [Industrial Relations Part of the Code] that is pending on the date on which the business was sold and that affects the employees employed in the business or their bargaining agent."

50. The National Labour Relations Board has adopted an analogous approach without the benefit of any statutory successor rights provision. In holding the predecessor and successor employers jointly and severally responsible to comply with the compensation and reinstatement order issued by the Board following the sale in unfair labour practice proceedings that were pending against the vendor at the time of the sale, the N.L.R.B. wrote as follows in Perma Vinyl Corporation, (1967), 164 N.L.R.B. 969:

To further the public interest involved in effectuating the policies of the Act and achieve the 'objectives of national labor policy', reflected in established principles of federal law, we are persuaded that one who acquires and operates a business of an employer found guilty of unfair labor practices in basically unchanged form under circumstances which charge him with notice of unfair labor practice charges against his predecessor should be held responsible for remedying his predecessor's unlawful conduct.

In imposing this responsibility upon a bona fide purchaser, we are not unmindful of the fact that he was not a party to the unfair labor practices and continues to operate the business without any connection with his predecessor. However, in balancing the equities involved there are other significant factors which must be taken into account. Thus, 'It is the employing industry that is sought to be regulated and brought within the corrective and remedial provisions of the Act in the interest of industrial peace.' When a new employer is substituted in the employing industry there has been no real change in the employing industry insofar as the victims of past unfair labor practices are concerned, or the need for remedying those unfair labor practices. Appropriate steps must still be taken if the effects of the unfair labor practices are to be erased and all employees reassured of their statutory rights. And it is the successor who has taken over control of the business who is generally in the best position to remedy such unfair labor practices most effectively. The imposition of this responsibility upon even the bona fide purchaser does not work an unfair hardship upon him. When he substituted himself in place of the perpetrator of the unfair labor practices, he became the beneficiary of the unremedied unfair labor practices. Also, his potential liability for remedying the unfair labor practices is a matter which can be reflected in the price he pays for the business, or he may secure an indemnity clause in the sales contract which will indemnify him for liability arising from the seller's unfair labor practices."

The principles outlined in the Perma Vinyl case were approved by the United States Supreme Court in Golden State Bottling Company Inc. (1973), 73 CCH ¶114,124; 84 LRRM 2839, wherein a successor employer purchased a business with knowledge of an outstanding N.L.R.B. order directing reinstatement of an employee dismissed by the predecessor employer for union activity. Included in the unanimous opinion of the Court is the following passage (at page 2845) which articulates some of the potential labour relations ramifications of a failure by the successor employer to remedy the predecessor employer's unfair labor practices:

"When a new employer has acquired substantial assets of its predecessor and continued, without interruption or substantial change, the predecessor's business operations, those employees who have been retained will understandably view their job situations as essentially unaltered. Under these circumstances, the employees may well perceive the successor's failure to remedy the predecessor employer's unfair labor practices arising out of an unlawful discharge as a continuation of the predecessor's labor policies. To the extent that the employees' legitimate expectation is that the unfair labor practices will be remedied, a successor's failure to do so may result in labour unrest as the employees engage in collective activity to force remedial action. Similarly, if the employees identify the new employer's labor policies with those of the predecessor but do not take collective action, the successor may benefit from the unfair labor practices. Moreover, the Board's experience may reasonably lead it to believe that employers intent on suppressing union activity may select for discharge those employees most actively engaged in union affairs, so that a failure to reinstate may result in a leadership vacuum in the bargaining unit.. .

51. The strong legislative intent evident in section 1(2) of the Act that a person ought never to lose his employee status by reason of dismissal contrary to the Act combined with the broad wording of section 89(4) provides considerable support for the contention that this Board has the jurisdiction to direct a purchaser to reinstate an individual whose discharge was the subject of unfair labour practice proceedings that were pending before the Board at the time of the sale. However, none of the cases arising in other jurisdictions goes so far as to grant remedial relief against an innocent purchaser who is unaware of his predecessor's unfair labour practice at the time of the sale and in respect of which no unfair labour practice proceedings were pending at the time of the sale. It may not be unduly onerous to expect the prospective purchaser to determine if any unfair labour practice proceedings are pending against the party from whom he proposes to purchase a business and, if such proceedings are pending, to take into account their potential outcome, including his potential responsibility for providing some redress to the affected employee(s). It is quite another matter altogether to subject an innocent purchaser to remedial relief in respect of actions of the vendor that might constitute unfair labour practices but in respect of which no complaint has been filed with the Board by the time of the sale. It is simply not realistic to expect a prospective purchaser to investigate all of the vendor's actions that might possibly constitute unfair labour practices. To be meaningful, such an investigation would have to go beyond merely asking the vendor about his actions and obtaining from him a denial of any wrongdoing. A meaningful investigation would require the prospective purchaser to make extensive inquiries of the vendor's employees, which inquiries could well result in disclosure of information concerning union activities by various individuals and other information that the Board would not wish to encourage a prospective purchaser to obtain. Accordingly, even if the combined wording of sections 1(2) and 89 permits us to direct 2Womor to "reinstate" Ms. MacNaughton by offering employment to her, the Board is of the view that it would not be appropriate for us to do so in the circumstances of this case, although we would encourage 2Womor to voluntarily offer to employ Ms. MacNaughton in the next position that becomes available for which she is qualified.

52. Since the Board has determined that it would not be appropriate to direct 2 Womor to reinstate Ms. MacNaughton, it is necessary to give serious consideration to the scope of the order that is to be made against Press for its contravention of the Act. In granting relief to a grievor whom a respondent has refused to continue to employ in contravention of the Act, the Board attempts to make the grievor whole by fully compensating him or her for the financial loss that he or she has suffered through the employer's violation of the Act. See, for example, Hallowell House Limited, [1980] OLRB Rep. Jan. 35, at paragraph 28, in which the Board wrote:

"An employee who has been deprived of employment contrary to The Labour Relations Act suffers not only a loss of wages, but also a loss of the opportunity to use the money and have interest accrue on it. As this loss of interest is directly attributable to the employer's violation of the Act, it is appropriate that in its effort to make an employee whole, the Board direct the payment of interest on the wage loss."

(emphasis added)

See also Sutton Place Hotel, [1980] OLRB Rep. Aug. 1250, in which the Board stated: "The purpose of section 79 [now section 89 of the Labour Relations Act] is to put the grievor who has been wronged in as good a position as he would have been in if the respondent had not violated the Act."

53. A situation that is somewhat analogous to the present case arises when an employee is wrongfully dismissed by his or her employer in breach of his or her contract of employment and seeks damages through a civil action for breach of the employment contract. The courts, which have traditionally declined to direct reinstatement on the basis of perceived difficulties in specifically enforcing a personal service contract, generally award damages on the basis of breach of an implied term in the employment contract that reasonable notice of termination of the contract will be given. The measure of damages in such cases is the amount of income which the employee would have earned from his or her employer during the period of such reasonable notice, subject to a deduction in respect of any amount that the employee earned or should have earned by seeking alternate employment to mitigate his or her loss (see Gardner v. Rockwell International of Canada Limited (1975), 1975 CanLII 732 (ON HCJ), 9 O.R. (2d) 105 (H.C.)). In determining what is reasonable notice in a particular case, the courts generally have regard to such factors as the character of the employment, the length of service of the employee, the age of the employee and the availability of similar employment, having regard to the experience, training and qualifications of the employee (see, for example, Bardal v. The Globe & Mail Ltd. (1960), 1960 CanLII 294 (ON HCJ), 24 D.L.R. (2d) 140 (O.H.C.), and Ackerman v. Thomson and Mckinnon, Auchincloss, Kohlmeyer, Inc. (1974), 1974 CanLII 642 (ON CA), 4 OR. (2d) 240 (C.A.)).

54. Although it is appropriate for the Board to derive some general guidance from the wrongful dismissal jurisprudence, it must not be overlooked that those cases are adjudicated on the basis of the traditional contractual principles associated with the "law of master and servant". While the refusal by Press to continue to employ Ms. MacNaughton in the present case may have been a breach of her employment contract, this Board's jurisdiction to grant remedial relief to Ms. MacNaughton is based not upon any breach of contract but rather upon contravention of a statute that embodies important aspects of public policy. As noted in its preamble, the Labour Relations Act was enacted "in the public interest of the Province of Ontario to further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees." The collective bargaining regime for which the Act provides a framework of statutory support is fundamentally different from the common law "master and servant" regime (see, generally, Mc Gavin Toastmasterv. Ainscough (1975), 1975 CanLII 9 (SCC), 54 D.L.R. (3d) 1. (S.C.C.) and the authorities cited therein).

55. In Academy of Medicine, [1977] OLRB Rep. Dec. 783, the Board was called upon to determine the compensation to be awarded to twelve individuals whose employment was terminated by a closure of a division of the employer's operation that was motivated by anti-union considerations. The Board, which found the employer's conduct to be violation of several sections of the Act but declined (due to "obvious difficulties of enforcement") to order the employer to re-open the division, directed the employer to pay to each of the employees a sum of money equivalent to the amount they would have earned during the three month period immediately following the date of closure (subject to an appropriate reduction for those employees who had found alternate employment during the period in question). Included in the Board's consideration of the appropriate measure of damages is the following passage (at paragraph 50):

"Damages resulting from a loss of employment status cannot, of course, be measured with precision.... The Board must make its best estimate of the value of the employees' loss in all of the circumstances of the case."

56. Having regard to all of the evidence before us and the submissions of the parties, the Board finds that if Press had not contravened the Act, Ms. MacNaughton would in all probability have been gainfully employed indefinitely at the newspaper. Ms. MacNaughton had over five years' experience at Press. She had no previous work experience prior to being employed by Press which hired her after she graduated from a three year diploma course at St. Lawrence College. There was no direct evidence concerning Ms. MacNaughton's age but her work experience, educational background and appearance suggest to the Board that she is in her mid-twenties. The Board is satisfied that she was a conscientious and reliable employee who performed valuable services for the newspaper in a position with significant responsibilities. The evidence adduced before us establishes that as of November 27, 1981 (the date that she testified before the Board), Ms. MacNaughton's efforts to obtain alternate employment had not met with success. (We make no finding as to the adequacy of those efforts since, in accordance with our normal practice, we have retained jurisdiction, on the agreement of the parties, to determine the quantum of compensation payable to the grievor pursuant to this decision). However, it may well be that 2Womor will find it appropriate to offer to employ Ms. MacNaughton in the next position that becomes available for which she is qualified. Moreover, Ms. MacNaughton suggested in her testimony that another newspaper may be prepared to consider employing her once these proceedings have been completed.

57. Having regard to all of the circumstances of this relatively unusual case, the Board has determined that Press must compensate Ms. MacNaughton for all lost wages and benefits sustained by her from August 28, 1981 to February 28, 1982, inclusive, with interest on the lost wages.

58. As noted above, part of the Board's general remedial response to an unfair labour practice of the type committed by Press in the instant case, is to direct the employer to post in conspicious places on its premises for the information of employees affected by the unfair labour practice, a notice of the Board's finding of an unfair labour practice and of the actions to be taken by the employer to remedy its violation of the statutory labour laws (see Valdi Inc., [1980] OLRB Aug. 1254). In recognition of the "chilling effect" which such unfair labour practices may have on the exercise by other employees of their rights under the Labour Relations Act, the Board generally directs the employer to post such notice for the purpose of assuring those other employees that effective remedies exist under the Act to protect them in the exercise of their statutory rights. Such notification is particularly important in the instant case where it is uncertain whether Ms. MacNaughton will ultimately return to work with her former fellow employees at the newspaper.

59. For reasons similar to those set forth above in respect of the inappropriateness in the circumstances of this case of directing 2Womor to reinstate Ms. MacNaughton, and for the further reason that the posting of a Board notice on 2Womor's premises might lead employees, and other persons who attend at 2Womor's premises in connection with its newpaper business, to erroneously conclude that 2Womor has contravened the Labour Relations Act, the Board is of the view that it would also be inappropriate to direct 2Womor to post on its premises a notice with respect to the contraventions of the Act by Press. Accordingly, the Board finds this to be an appropriate case in which to effect such notice by direction Press to mail, at its own expense, a copy of the attached notice marked "Appendix", after being duly signed by W. R. Workman, to the residence of each person who was employed in the bargaining units set forth in paragraph 6 of this decision on August 27, 1981, the date of its unlawful refusal to continue to employ Ms. MacNaughton.

60. The Board therefore orders:

(1) that Donna MacNaughton be fully compensated forthwith by the respondent The Winchester Press Limited for all lost wages and benefits sustained by her from August 28, 1981, to February 28, 1982, inclusive, as a result of that respondent's contravention of the Act;

(2) that the respondent The Winchester Press Limited pay interest on the compensation for lost wages ordered by the Board, such interest to be calculated in the manner described in Practice Note No. 13, dated September 8, 1980; and

(3) that the respondent The Winchester Press Limited, at its own expense, forthwith mail a copy of the attached notice marked "Appendix", after being duly signed by W. R. Workman, to the residence of each person who was employed by that respondent on August 27, 1981, in the bargaining units set forth in paragraph 6 of this decision.

61. The Board remains seized on this matter in the event that a dispute arises concerning the implementation of the Board's order.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

MAILED BY ORDER OF THE ONTARIO LABOUR RELATIONS BOARD

WE HAVE MAILED THIS NOTICE TO YOU IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH WE AND THE UNION PARTICIPATED. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT BY REFUSING TO CONTINUE TO EMPLOY

DONNA MACNAUGHTON.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

TO ORGANIZE THEMSELVES,

TO FORM, JOIN AND PARTICIPATE IN THE

LAWFUL ACTIVITIES OF A TRADE UNION,

TO ACT TOGETHER FOR COLLLCTIVE BARGAINING,

TO REFUSE TO DO ANY AND ALL OF THESE THINGS.

WE ASSURE ALL OF OUR FORMER EMPLOYEES THAT;

WE WILL NOT DO ANYTHING THAT INTERFERES

WITH THESE RIGHTS.

WE WILL FULLY COMPENSATE DONNA MACNAUGHTON

FOR ALL LOST WAGES (PLUS INTEREST) AND BENEFITS THAT

SHE SUSTAINED FROM AUGUST 28, 1981 TO FEBRUARY 28, 1982

INCLUSIVE, AS A RESULT OF OUR CONTRAVENTION OFTHELABOUR

RELATIONS ACT,

WE WILL MAIL AT OUR EXPENSE A COPY OF THIS

NOTICE TO THE RESIDENC~ OF EACH P ~RS QN WHO

WAS EMPLOYED BY US ON AUGUST 27, 1981, IN

THE TWO BARGAINING UNITS CERTIFIED BY THE

BOARD.

THE WINCHESTER PRESS LIMITED

PER; W. R. WORKMAN

PRESIDENT

DATED this 10TH day of FEBRUARY 1982