[1983] OLRB Rep. August 1316

2671-82-U Canadian Paperworkers Union, CLC and Its Local 305, Complainant, v. International Wallcoverings, A Division of International Paints (Canada) Limited, Respondent

BEFORE: George W. Adams, Q. C., Chairman and Board Members E. J. Brady and C. Ballentine.

APPEARANCES: Douglas J. Wray, Donald Holder, Ray Bowman and Andrew Foucault for the complainant; and Robert A. MacDermid for the respondent.

DECISION OF THE BOARD; August 5, 1983

1. The complainant complains that nine grievors dismissed during the course of a strike and whom the respondent refused to reinstate or to arbitrate their cases were dealt with by the respondent contrary to the provisions of section 3, 15, 64, 66 and 70 of the Labour Relations Act. The complainant requests a declaration that the Act was violated and a direction that the grievors either be reinstated or their discharge cases be remitted to an arbitrator constituted pursuant to the collective agreement now existing between the parties.

2. The complainant trade union and the respondent were parties to a collective agreement dated August 31st, 1981 and effective from May 30th, 1981 to December 31st, 1982. The respondent gave notice of its desire to terminate or amend this agreement pursuant to Article 32 by letter dated October 4th, 1982. On this same date the respondent applied to the Minister of Labour for the appointment of a conciliation officer. The complainant advised the respondent of its wish to negotiate a renewal of the collective agreement by letter dated October 5th, 1982. The Minister of Labour advised the parties by letter dated December 15th, 1982 that a board of conciliation would not be appointed. The respondent took the offensive by letter dated December 29th, 1982 advising bargaining unit employees that the collective agreement would expire at midnight December 31st, 1982 and that it was, at that moment, implementing new terms and conditions of employment. The letter provided:

The Collective Agreement between the Company and the Union will expire at midnight December 31st, 1982. On and after January 1st, 1983 neither the Company nor the Union are legally bound to comply with its terms. As you are aware, the Company's proposal to renew the Collective Agreement was rejected by the Union.

When you report for work on your scheduled shift previously advised, on either January 2nd or 3rd, 1983, your terms and conditions of employment will no longer be those set out in the Collective Agreement. Instead, the following will apply:

1. WAGES: Hourly wage rate will increase by 6%.

2. BENEFITS: You will continue to be entitled to the benefit plans set out in Article 19 of the expired Collective Agreement with the exception that the maximum weekly indemnity benefit shall be 66-2/3 of your weekly earnings:

The Company will continue to pay its portion of the premiums.

3. SENIORITY: Hours of Work, Overtime, Leaves of Absence, Bereavement Leaves, Statutory Holidays, Vacations, Tool Allowances and Lead Hand Premiums - these terms and conditions of employment shall continue to be administered in the same manner they were under the expired Collective Agreement.

4. UNION DUES: These will no longer be deducted: You may make direct payment to the Union.

By reporting for work on your scheduled shift, you are accepting the terms as noted above.

3. The trade union was advised of the respondent's decision in this respect by a letter of the same date and in the following terms:

Mr. Ray Bowman,

Canadian Paperworkers’ Union,

701 Evans Avenue,

Suite 709,

Etobicoke, Ontario.

M9C 1A3

Dear Mr. Bowman,

The Collective Agreement between the Company and the Union expires on December 3 1st, 1982. As we have been unable to reach a settlement as of this date, I am writing to advise you that on and after January 3 1st, 1983 we will no longer be applying the terms and conditions of the Collective Agreement. Instead, we will implement our final offer. For your information, we have enclosed the text of a standard form letter sent to all employees.

4. This brisk approach to bargaining by the respondent was explained to the Board to be because bargaining had been prolonged during the preceding negotiations for the expired contract and with considerable detriment to the respondent in terms of absenteeism and loss of overtime. There was, of course, the risk of escalating tension between the parties to the point of strike and this risk materialized on January 2nd, 1983. A strike .commenced as of that date.

5. What gives rise to these proceedings is the decision of the respondent to dismiss nine employees by letter dated March 2nd, 1983. Representative of these letters is the letter to Mr. G. Brinston over the signature of Mr. Clayton which reads:

Dear Mr. Brinston:

Because of your conduct on or about 6:30 a.m. on February 23, 1983, your employment with the Company is hereby terminated.

Similar letters were sent to Messrs. C. Carrier, M. MeCarroll, D. MeCarroll, S. Prewal, R. Richard, L. Lutes, F. Mez and R. Blanchard. D. MeCarroll is President of the complainant local trade union. M. McCarroll is Vice-President and Mr. L. Lutes is Recording Secretary. The terminations followed an incident during which a van of strike replacements was intercepted at a restaurant parking lot away from the respondent’s plant and a physical assault was inflicted on two of the strike replacements and on the van itself. The details of this incident are reviewed below. Immediately prior to the initial hearing in this matter the parties entered into a collective agreement dated April 23rd, 1983 effective from the date of ratification to March 31st, 1985. Paragraph 20 of the Memorandum of Agreement entitled ‘Back to Work’ provides in part:

(A) Upon ratification of this Agreement, employees whose employment has not been terminated prior to the date of ratification will be recalled to work in accordance with their seniority. It is agreed that seniority and service of the employees shall not be interrupted or broken by the labour dispute except for those persons whose employment was terminated prior to ratification.

The company shall not discharge, discipline or otherwise discriminate against any employee who engaged in the labour dispute. Similarly, the union agrees they will not discipline or otherwise discriminate against any employee.

(B) Any person hired by the company to work in the bargaining unit since the commencement of the labour dispute shall be terminated upon ratification of this agreement but the company may rehire such persons if staffing permits it.

(C) The parties agree to withdraw their complaints filed under section 89 of The Labour Relations Act in Board File No's. 1897-82-U and 2227-82-U. This agreement to withdraw does not apply to the union’s complaint in Board File No. 2671-82-U and to any complaint the union may file under section 89 of the Labour Relations Act related to the termination of Lawrence Timmons.

Any reference to terminations in 10(A) is without prejudice to the union's section 89 Board File No. 2671-82-U and Lawrence Timmons.

6. Prior to the dismissal of the nine grievors, the respondent had taken the position that the collective agreement would not be retroactive and, subsequently, took the position that it would not agree either to reinstate the grievors or to agree that their dismissals be submitted to arbitration pursuant to any collective agreement entered into between the parties. The above Memorandum of Agreement reveals that the respondent company maintained these positions.

7. Mr. Tom Clayton, Labour Relations Manager for the respondent, testified that he arrived at his office at 8:45 a.m. on February 23rd, 1983 and was advised within minutes by the head of security that a physical altercation had occurred at the Vesta Restaurant. He was told that a number of individuals had been involved in an assault on and an interference with two of the respondent's employees trying to proceed to work. He was advised the two employees were apparently injured and had elected to go home instead of working on that day. The evidence reveals that two or three days after the commencement of the strike the respondent company commenced operations with the assistance of an employment agency which supplied replacement employees and transported them to the respondent's premises. The services of a security firm were also retained. The employment agency utilized two vans equipped for passing through picket lines and picked up the replacement labour at locations away from the plant. The pick-up locations were changed on a weekly basis apparently to prevent striking employees from interfering with the transportation arrangements. The Vesta Restaurant was a location at which a van driven by Mr. Guy Auger was to pick up two strike replacements by the names of George Turnbull and Leo McCarthy. Auger, we might add, viewed himself as an employee of the employment agency as did Turnbull.

8. Mr. Turnbull testified that he went to the Vesta Restaurant at about 6:15 a.m. on the 23rd of February to be picked up by Mr. Auger and taken into the plant across the picket lines. Mr. Turnbull met Mr. McCarthy at the restaurant and the two had something to eat. Mr. McCarthy then went outside to get his clothes from his van and Mr. Turnbull paid the restaurant bill. Mr. Turnbull testified that on leaving the restaurant at about 6:30 or 6:35 a.m., he saw a truck in front of the pick-up van, a light blue car off to one side, and another car behind the van. All of these vehicles had people in them. He testified that four persons got out of the truck in front of the van and came towards him. He testified that one of these persons was the Vice-President of the local union, Mr. Mark McCarroll, who asked where he was going. Turnbull said he responded that he was going home whereupon Mr. McCarroll removed a knife-like tool from Mr. Turnbull's pocket, opened the blade, and stated "Maybe we should cut this guy's throat". He testified that the knife was waved in front of his face. At about the same time Mr. McCarthy came around the restaurant's corner and approached this group with his work clothes in his hands. Turnbull testified that Mark McCarroll asked McCarthy if he was with Turnbull and McCarthy replied that he was. Turnbull stated that an individual standing beside Mr. McCarroll grabbed Mr. McCarthy and threw him up against the restaurant wall. At about the same time another person on the other side of Mr. Carroll punched Mr. Turnbull in the jaw. Mr. Turnbull saw the same persons punching and kicking Mr. McCarthy. Mr. Turnbull said he ran into the restaurant and was followed by a Mr. Prewal who commenced pulling his hair and trying to drag him out of the restaurant. Mr. Turnbull escaped out of Prewal’s clutches and ran out of the restaurant into a nearby field. When he returned to the restaurant he found McCarthy coming out of another field and the two went back to McCarthy's place. Turnbull then called "his boss" at the employment agency. Neither Turnbull nor McCarthy required medical attention. Turnbull had been working at the respondent company's premises since shortly after the commencement of the strike and testified that there were a number of other employees present at the restaurant who were standing about watching the incident. He, however, was able to identify only the President, the Vice-President and Mr. Prewall.

9. February 23rd, 1983 was Leo McCarthy's first day of work. He attended at the restaurant at 6:15 a.m. and the van arrived at 6:35 a.m. On returning from his own van with his work clothes he observed six or seven men in front of the restaurant and "a couple of them" talking to Mr. Turnbull. Someone asked him whether he was with Mr. Turnbull and he replied that he was. He was then told that there would be no work this day and that no one was going across the picket line. He said he was then punched in the nose and behind the ear by a person later identified to him as Larry Lutes, the Recording Secretary of the local trade union. He was also kicked by a person later identified as Dean McCarroll, the President of the local union. He, however, denied seeing anyone with a knife and at the time he was hit he was only a few feet away from Mr. Turnbull. Because it was his first work day he could not identify anyone by name. However, after speaking to Mr. Bob Dutcher who was to be his supervisor and Mr. Auger, he was able to put names to the faces he described to them. He estimated that there were approximately twelve people in the group of strikers at the restaurant that morning. And like Turnbull, he testified that other than those people who engaged in the assault, no one else did anything. Both McCarthy and Turnbull were interviewed by the police following the incident and Turnbull laid criminal charges.

10. Guy Auger testified that he was in the employ of an employment agency supplying temporary workers to the respondent company. Mr. Auger was the driver of one of the two vans that brought these workers into the respondent’s plant. As noted above, the vans were specifically adapted for bringing replacement employees to work through a picket line. The windshields and headlights were protected by aluminum grills and a curtain separated the front seat of the van from the area in which the strike replacements were seated. Accordingly, it was not possible to look into the van to see who was being transported across the picket lines into work.

11. Mr. Auger testified that he changed his pick-up points every second or third day and that on this occasion there were about fifteen people in the van by the time he arrived at his last stop, the Vesta Restaurant. As he approached the restaurant driveway, two cars went by him and one of these two cars pulled behind his van. At the same time, a small truck driven by Mr. Prewal and accompanied by Mark McCarroll drove in front of the van. The result was to block the van from moving easily. Mr. Auger testified that Bill Turnbull came out of the restaurant and all of the passengers of the truck in front of the van walked towards him. Mr. Auger instructed his passengers to put up the curtain and lock the doors. He said at that point he saw five people around Bill Turnbull and Mark McCarroll was at the van kicking it and swearing at its occupants. MeCarroll also tore off the van mirrors and threatened to blow it up. One of the five persons surrounding Mr. Turnbull punched him in the head causing him to run into the restaurant. Mr. Auger testified that the strikers then turned their attention to Mr. McCarthy who had just come around the corner of the restaurant. He testified that Larry Lutes punched Mr. McCarthy in the head and Dean McCarroll proceeded to kick him. All of the other strikers he was able to identify were standing about and watching the incident. He did not see Mr. Mark McCarroll threaten Mr. Turnbull with a knife and indeed his recollection was that McCarroll was assaulting the van when Mr. Turnbull was being punched. Mr. Auger then negotiated the van out from between the two vehicles that had trapped it and left the parking lot in an effort to avoid further damage. Shortly thereafter he returned to the restaurant but Turnbull and McCarthy were nowhere in sight. He then proceeded to the respondent company's plant and arrived there at 7:05 a.m. He advised an official of the security firm of the incident and he apparently called the police.

12. Auger testified that there were more than the nine people discharged who attended the restaurant that morning. He said he was able to identify the nine because of his experience with them on the picket line for the previous six weeks. He said these were the people who gave him the toughest time. He said he came to know their names by talking to supervisors after each passage through the picket lines. He testified that Gerry Brinston was standing by the truck stationed in front of his van throughout the incident. He saw Conrad Carrier and Frank Mez also standing by the driveway. He recalled seeing Rick Blanchard standing beside the truck. He knew Blanchard's name from Blanchard having previously given him "a hard time" crossing the picket line. No physical description of Blanchard was given or of what Blanchard was wearing at the time. He recalled Surjit Prewal as the driver of the truck and standing near it when Mark McCarroll was kicking his van. He recognized Mr. Mez because of his blond hair and the fact that he had been difficult on the picket line. Mr. Mez was described as just standing by the restaurant. He also recognized Roger Richard by his bushy sideburns and glasses. He remembered Richard as having talked to the two strike replacements who Auger was trying to pick up. He pointed out that none of these persons standing about made any attempt to interfere in the assault on Messrs. Turnbull and McCarthy. On February 24th Mr. Auger and Mr. Turnbull were interviewed by Sargeant Cowling, a strike co-ordinator for the Peel Regional Police Force. The statements given to Sargeant Cowling were introduced into evidence.

13. Sargeant Cowling testified that the strike had not been a particularly eventful one. Prior to the incident at the Vesta Restaurant some ten charges had been laid and they related primarily to damage to vehicles. He confirmed that with respect to the incident he interviewed Messrs. Auger, Turnbull and McCarthy and satisfied himself that proper identification could be made notwithstanding that these persons had not worked side by side the strikers alleged to have been involved. He then advised officials of the respondent company that the following charges were to be laid: Brinston (2 counts of intimidation); Carrier (2 counts of intimidation); Mark McCarroll (weapons dangerous and assault level 2); Dean McCarroll (assault level 2); Lutes (assault level 2); Prewal (mischief and assault level 1); Mez (2 counts of intimidation); Blanchard (2 counts of intimidation); and Richard (2 counts of intimidation).

14. The respondent company was advised of these charges prior to it taking formal steps to terminate the grievors. Mr. Clayton also interviewed Mr. Auger and Mr. Turnbull to satisfy himself that proper identification had been made. Mr. Clayton said he saw the incident as involving a "commando like raid" designed to intimidate replacement employees and interfere with the company's right to continue its operation during the course of the strike. He distinguished this incident, which took place away from the picket line, from earlier picket line misconduct where charges had been laid and the company took no action. He was prepared to accept the emotion and the momentary flare-ups associated with picket-line activities but he was not prepared to accept this "concerted assault" at a location away from the plant premises. Clayton testified that he decided to dismiss those involved as soon as he was advised of the incident by the chief of security at approximately 8:45A.M. on February 23 and claimed that at that time he did not know who had been involved. Mr. William Wilson, General Manager of the respondent company, echoed Mr. Clayton's evidence. Both men agreed that in making the decision to terminate they did not give any attention to the different degrees of seriousness of the charges or to the length of service or work records of the various employees they subsequently came to believe were involved. They also agreed they were unwilling to submit any of the discharges to arbitration. They testified that they were not legally obligated to arbitrate these matters and were unwilling to shoulder the expense in doing so. When asked what if he was mistaken in his belief that certain employees had been involved, Mr. Clayton responded that "that was tough." Wilson, on the other hand, stressed that at all times the respondent company was willing to consider evidence which would establish one or more of the grievors were not present at the Vesta Restaurant. Wilson said such evidence was never forthcoming either from individual grievors or from the complainant trade union. There can be little doubt that the position of the respondent company with respect to these terminations became the major stumbling block in the negotiations from March 2nd onwards. Nevertheless, the respondent company did not relent in its view that all nine grievors had attempted to intimidate, threaten and terrorize employees from coming into work and that the resulting discharges would neither be rescinded nor submitted to arbitration. As Mr. Clayton put it, the grievors were terminated and they would remain so. The respondent company did, however, continue to negotiate with the local bargaining committee consisting of the two McCarrolls and Lutes and, as noted above, a collective agreement was eventually agreed upon.

15. Three of the nine grievors testified. They claimed and were extended the protections of the Ontario Evidence Act, the Canada Evidence Act and the Charter of Rights. Mr. Roger Richard had been employed by the respondent company for some six years prior to his discharge. He had been a union steward and was on the safety committee. He said he awakened at 5:45 a.m. and obtained a drive to the picket line with a person by the name of Jeff Burrows. He arrived at the picket line about 6:30 a.m. and borrowed $20.00 from a fellow striker, Mr. Baksh, for donuts and coffees. He said he and Burrows then drove to a donut shop and returned to the picket line at approximately 6:50 or 7:00 a.m. Baksh was called to testify and confirmed that Richard and Burrows, who is a former employee of the respondent company, arrived at the picket line at about 6:30 a.m. He recalled loaning Richard $20.00 and Richard and Burrows left. He recalled they returned at about 6:45 a.m. Richard denied going to the Vesta Restaurant at any time that morning and advised that he had pleaded not guilty to the charge against him. On cross-examination he agreed that the driver of the van would have been able to recognize him from previous sightings on the picket line given the proximity of his picketing to the driver's seat of the van. Richard testified that he did not ask the bargaining committee to advise the company that he was not there. He said he did not see what good it would do to call the company and advise Mr. Clayton that he was not present at the restaurant because he believed he was being discriminated against for having been a strong union supporter. In his view, "If they were going through the bother of saying (I) was there, they would fight it".

16. Richard Blanchard had been employed by the respondent company for three years prior to his discharge. He had slept over in a trailer stationed at the picket line the evening of February 22nd and awakened on February 23rd at 6:00 a.m. to build a fire. He said he spoke with Farooqui Baksh and another fellow striking employee at that time. He testified that at about 6:45 a.m. he was able to get a ride to the City Center with a person by the name of Chris and then caught a bus to his home in Brampton. Chris was a fellow employee. Mr. Baksh confirmed that when he arrived at the picket line in the early hours of February 23rd, Mr. Blanchard was sleeping in the trailer. He advised Mr. Baksh that he didn't have a ride to get home. He remembered Mr. Blanchard lighting a fire at about 6:00 a.m. and at 6:15 a.m. saw him go to the washroom. He testified that he did not see him again and did not remember him leaving. He did recall seeing "Chris" that morning around 6:45 a.m. or 7:00 a. m.

17. Mark McCarroll had been employed for five years with the company prior to his dismissal. He had been Vice-President of the local union for two years and a member of the union's negotiating committee for the last two contracts. He testified there had been a rumour that some of the union's people were meeting at the Vesta Restaurant and coming into work by way of the van. Lutes, Prewal and McCarroll therefore decided that they should go to the restaurant on the morning of February 23rd to investigate the rumour and, if confirmed, to lay charges under the union's constitution against the employees involved. Prewal, Brinston and Carrier met at McCarroll's house that morning before going to the restaurant. McCarroll testified that they arrived at the restaurant at about 6:15 a.m. with Prewal pulling up in front of the van and the car in which McCarroll was riding pulling in behind. McCarroll testified that he was going towards the restaurant with Carrier but decided instead to proceed to the van. He admitted to screaming obscenities, kicking the grill and lights of the van, and breaking off the side door mirror. Auger testified McCarroll shouted that he would kill those in the van by blowing it up. He testified that he did not recall threatening to kill everyone in the van or that he would blow it up. However, he specifically denied accosting Turnbull or waving a knife in his face. He believed he was dismissed for being an active trade union supporter and recited the details of earlier events which had brought him into conflict with the company. He testified that he was constantly opposing management actions and that the management of the respondent company did not appreciate his efforts in this respect. On cross-examination, he denied that Richard and Blanchard were at the restaurant. He testified that a relatively large number of striking employees attended at the restaurant "so they would have enough witnesses". He explained that he attacked the van because someone in the van told him he had a gun and was going to "blow him away". He also said he could not tolerate being laughed at by the people in the van. He testified that he was under a lot of personal pressure from various family problems which also contributed to his actions on February 23rd. He testified that subsequently Blanchard and Richard spoke to him and asked that representations be made on their behalf to the company that they were not there at all. McCarroll said that he related this information to his brother Dean and to Ray Bowman of the parent union.

Argument

18. On behalf of the company it was argued that the Vesta Restaurant was a qualitatively different location from the plant picket line. It was submitted that the attendance of the nine grievors at this restaurant location was a premeditated act which could only have had the purpose of intimidation. Counsel submitted that the conduct in issue could not be characterized as a momentary flare-up of emotions on a picket line, but rather was better viewed as a commando-like raid designed to coerce and intimidate persons who had a lawful right to work for the respondent company. Counsel contended that the company's reaction could not be seen as a over-reaction or as the issuance of grossly disproportionate discipline in relation to the offence. The company was concerned about the chilling effect on the replacement workers whose efforts it depended upon and its right to carry on business during the course of a strike. The company was also unwilling to concede the jurisdiction of an arbitrator to review the discharges. Counsel contended that the scheme of the Act clearly did not obligate the employer to arbitrate the terminations of the grievors, and that from the outset of negotiations the respondent company had taken the position that the collective agreement would not be retroactive. Accordingly, it was submitted that there had been no violation of sections 3, 15, 64, 66, 67(1), 70 or 75 of the Labour Relations Act.

19. On behalf of the union it was submitted that the company used the opportunity provided by the incident at the restaurant to rid itself of key union people and thereby to try and break the strike and the complainant trade union. Counsel submitted that the actual terminations of the grievors were all motivated by anti-union animus and contended that it was simply not believeable Clayton did not know who the employees were when he made his decision to discharge. Counsel submitted that the better view of the facts is that Clayton knew precisely who the grievors were and, particularly, that the two McCarroll brothers and Lutes were involved. He therefore decided to fire everyone in order to take advantage of the situation and avoid any claim that it was singling out union officials. It was also argued that the refusal of the respondent to submit the grievors' dismissals to arbitration constituted an independent violation of the statute amounting to a refusal to recognize the trade union as the bargaining agent for these people. Finally, it was contended that the respondent company had violated section 15 by refusing to discuss the termination of the grievors particularly in light of the evidence pertaining to Blanchard and Richard wherein, in the union's view, it had been established that they were not in attendance at the restaurant.

Decision

20. Having regard to the evidence before us, we are satisfied that Larry Lutes punched Leo McCarthy and Dean McCarroll kicked him. McCarthy testified to this effect and his identification of these two grievors was assisted by company officials. Guy Auger was also close at hand and observed the assault. Neither Lutes nor Dean McCarroll testified to rebut the prima facie evidence against them. With respect to Mark McCarroll, we find on his own evidence that he attacked the van carrying the replacement employees; that he damaged the van, although the extent of the damage was not established; and that he screamed at the replacement employees. We cannot find, however, that he threatened Mr. Turnbull with a knife. While Mr. Turnbull testified that Mark McCarroll waved a knife which had previously been in Mr. Turnbull's possession and at the same time asked a threatening question, Mr. McCarthy did not see this happen. Mr. Auger testified that Mr. McCarroll was assaulting the van while Mr. Turnbull and Mr. McCarthy were being accosted. Mr. McCarroll also denied taking a knife from Mr. Turnbull and waving it in his face. The respondent company was therefore mistaken in its belief about this aspect of M. McCarroll's conduct.

21. The evidence does establish that Surjit Prewal assaulted Mr. Turnbull in the restaurant. Mr. Turnbull testified to this effect and Mr. Prewal did not testify before the Board to rebut his testimony. The evidence further establishes that Mr. Brinston, Mr. Mez and Mr. Carrier were present but standing some distance from the location where the two replacement employees were assaulted.

22. Does the evidence establish the involvement of Blanchard and Richard? Both employees testified that they did not attend at the restaurant. Guy Auger purported to identify them and he would have had a very good view of them. He placed them at the truck driven by striking employees or in the driveway of the restaurant. He said he was familiar with these two employees because of their previous high visibility on the picket lines. There is no evidence, however, that these employees were previously charged with misconduct on the picket line and Auger did not describe either Richard or Blanchard or what they were wearing in any detail before this Board. Mr. Blanchard was seen on the picket line at approximately 6:15 a.m. and the employee whom he claims gave him a ride home was seen on the picket line at about 6:45 a.m. Mr. Richard was seen on the picket line at approximately 6:30 a.m. and then left with another employee to go to a restaurant. He denies that the restaurant he went to was the Vesta Restaurant. Mr. Mark McCarroll also testified that neither one of these employees attended the Vesta Restaurant. Mr. McCarroll also testified that the strikers arrived at the Vesta at approximately 6:15 a.m. It would also appear that many of the strikers assembled at McCarroll's home before going to the restaurant. Reviewing the evidence as a whole, we cannot find that Blanchard and Richard were present. The timing of the incident at the Restaurant is clearly inconsistent with Richard's involvement in that he was clearly at the picket line at approximately 6:30 a.m. The timing is, less strongly so, inconsistent with Blanchard's participation. He had been at the picket line all night and therefore would not have been aware of the plans to go to the Vesta. He was seen on the picket line at 6:15 a.m. and the person who gave him a ride home was seen in that location at 6:45 a.m. Moreover, the evidence of Charles Daniel, a security guard, and a witness called by the company did not rebut the testimonies of Blanchard and Richard. We therefore find that they did not attend at the Vesta Restaurant as alleged and that the respondent company was mistaken in this regard.

23. Before making any further findings with respect to the respondent company s conduct, we wish to discuss the applicable legal framework. We do not accept that the respondent's refusal to arbitrate the terminations constituted a failure to recognize the complainant or that section 15 was breached in this regard. This case does, however, merit a review of important issues concerning the administration of the unfair labour practice provisions of the statute. In recent years there has been a plethora of developments concerning these central provisions. Statutory adjustments have been made to legal burdens and much has been said in the cases about the role of improper motive and "mixed motive" in the commission of statutory violations. Not surprisingly, in the context of very general statutory provisions intended to provide this Board with the important role of fashioning meaningful labour relations responses to particular cases, the decision-making has evolved in a somewhat tentative fashion with the Board articulating and revising unfair labour practice policies as experience has required. Illustrative of and central to this evolution of policy is the role of motive or intent in determining whether or not key statutory prohibitions have been violated.

24. Anytime illegality is dependent on motive, an onerous burden is placed upon adjudication. The state of mind of a respondent or defendant is more difficult to establish than is misconduct or its effects. It is for this reason that the motive or intention approach has been avoided or downplayed in many regulatory and common law fields. If motive was made a constituent element in determining breaches of contracts, for example, the goals sought to be promoted by that field of law might be impaired. The value of promises would come to be too uncertain in that successful enforcement would depend upon whether the promisor intended to default on his promise and not on the mere fact of non-performance. On the other hand, mens rea, motive or intent play a central role in establishing culpability in the criminal law field where the object of the law is not to compensate victims but to deter offenders. Murder is established where the offender intended to kill. General and special deterrence, the modern objectives of this area of law, require that the offender be incarcerated. However, if the offender did not intend to kill the victim (the death being accidental or the offender being insane), the incarceration of the accused will not deter either him or persons similarly situated. Incarceration would be gratuitous. But even in the criminal law field, motive is not taken to subjective extremes. If A points a loaded gun at B's abdomen, pulls the trigger, and B dies, it will be presumed A intended to kill B. Regardless that A may only have wanted to wound B, there is a presumption of intent to achieve that which almost invariably follows from one's voluntary actions. If A's conviction turned on whether he 'subjectively meant to kill B, the prohibition against murder would be seriously frustrated in its application and ultimately might fail to constitute an effective deterrent. Similarly, objective intent is used in those areas of contract and tort law where the state of mind of a person is a relevant consideration. For example, the law of negligence, through the doctrine of reasonable forseeability, recognises that all losses sustained by injury cannot be compensated without frustrating otherwise useful conduct of others. Reasonable forseeability in the assessment of contract damages also does not provide for absolute liability nor, as in tort, is it always reflective of the actual expectations of the parties. Indeed, the application of these doctrines in tort and contract on both case by case and incremental bases reveals a policy-making role of judges in extending or limiting the ambit of contract and tort law. In effect, the doctrines are judicial vehicles for balancing various conflicting interests at issue. While predictability and certainty are recognized as important legal values~ the laws of negligence and contract have continued to evolve in the hands of the judiciary consistent with the needs of an increasingly complex and changing society. See Linden, Canadian Tort Law (1982) Chapters 5 and 10; Waddams, The Law of Contracts (1977) Chapter 3; and McGregor on Damages (1980) Chapter 6. As has been observed in another context, labour relations law is no different See C'anada Cement Lafarge, [1983] OLRB Rep. Feb. 214 and Adams, Labour Law Remedies in Swan and Swinton, Studies in Labour Law (1983) 55.

25. The Ontario Labour Relations Act regulates employer action that frustrates and impedes the formation of trade unions, the collective bargaining process and incidental em­ployee action. At the same time the general law of employment and a market economy acknowledge the need and right of employers, for example, to set terms and conditions of employment, to hire, to terminate for cause and to lay off. To the extent that such employer actions impede the activity sought to be encouraged by the Labour Relations Act, some method for resolving conflict between these employer and employee rights is required. One approach might be simply to prefer one right over the other in all cases of conflict. This is not a particularly attractive option where two worthwhile but competing policies are at issue. Another option might be to balance the claimed rights on a case by case basis, examining the competing justifications and alternatives open to the parties. This approach permits an integration of competing policies but raises its own set of problems centering on the limits of administrative power. A third and for our purposes a final approach is to censure only that management action designed or intended to interfere with the exercise of statutory rights by employees. Obviously, this option introduces motive as a constituent element in making out statutory offenses. Whether it is called motive, intent, animus, scienter, malice or mens rea, the approach makes regulation more complex while at the same time limiting its reach. And as the various fields of law discussed above reveal, an emphasis on motive does not eliminate and may only disguise the need for delicate policy accommodations by adjudicators. As we shall see, this case is illustrative.

26. A review of sections 64, 66 and 70 demonstrate that the Legislature was sensitive to these various regulatory options but, presumably because of the complex intersection of labour relations and business activity, used less than direct language in fashioning these fundamental provisions. It must, however, be kept in mind that part of the regulatory scheme includes an expert tripartite administrative agency consisting of neutral members and members representing both labour and management exercising delegated administrative discretion. The sections read:

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

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

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

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

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

71. What becomes immediately apparent is the use in sections 66 and 70 of words suggesting a motive requirement whereas section 64 is expressed more in terms of effect. More specifically, section 66 uses the words "because", "seeks" and section 70 the word "seek". These words are not to be found in section 64. Instead, section 64 refers to interference. That section is also a very general one cast in terms, inter alia, of interference with the formation, selection or administration of a trade union. On the other hand, sections 66 and 70 are more particular in scope, aimed at particular kinds of improper action which impede or prevent persons from exercising rights under the Act. The result is that any conduct that violates sections 66 and 70 arguably will also offend section 64 but the opposite will not necessarily be so. For this reason, the inter-relationship and scope of these sections (principally sections 64 and 66) are absolutely critical. If section 64 does not require an "intent" to interfere and sections 66 and 70 do, complainants would be better off filing complaints only pursuant to section 64. The result would be, however, to read sections 66 and 70 out of the Act. This would be a dubious application of legislative intent. On the other hand, interpreting section 64 always to require motive gives little or no effect to the difference in language between the sections. This tension accounts for the somewhat different treatment accorded to section 64 in A.A.S. Telecommunications, [1976] OLRB Rep. Dec. 751 at p.758; Westinghouse Canada Inc., [19801 OLRB Rep. April 577 at ¶54; Rehau Plastiks of Canada Limited, [1979] OLRB Rep. Nov. 1104 at ¶6; Ontario Banknote Ltd., Board File No. 0590-80-U, unreported, dated August 15, 1980; and Skyline Hotels, [1980] OLRB Rep. Dec. 1811. For example in A.A.S. Telecommunications, supra, at p.758 the then Chairman of the Board contrasted the wording of section 64 [then section 56] and section 66 [then section 58] in the following terms:

72. The prohibition contained in section 56 is of a different legal character than the prohibition in section 58, the legality of employer conduct depending upon the consequences flowing from that conduct rather than upon the underlying motive. Interference with the "formation, selection, or administration" of a trade union is prohibited, such prohibition being qualified only where employer conduct falls within the accepted boundaries of freedom of expression. In contrast with section 58, it is not necessary under section 56 to establish an anti-union animus on the part of an employer before making a finding of illegality. Conversely, the presence of anti-union animus, in the absence of any evidence of interference, would not be sufficient to found a complaint under section 56.

73. The essential element in any complaint under section 56 is employer interference with a trade union. A distinction must be made, however, between employer conduct that actually interferes with a trade union, and employer conduct that only incidentally affects a trade union. The distinction, although only one of degree, is important because it takes into account the adversarial nature of collective bargaining. Given that the union and the employer are economic adversaries, the Board should not characterize the normal wear and tear of collective bargaining as constituting illegal interference. Conduct that threatens the formation or existence is quite a different matter, and would clearly amount to a contravention of section 56.

74. In this case, the respondents dismissed two employees and a supervisor, all of whom were involved in the complainant's organizing drive. Does this conduct amount to the kind of interference that is prohibited by section 56? The facts leave us with little doubt as to the answer. There is no question that the three dismissals had a chilling effect on the complainant's attempt to organize the other employees. Potts, Stockfish, Bird all testified that they believed the reason for their dismissal was their union activity. Thompson, moreover, testified that no employees were signed up after the dismissals occurred. In the circumstances of this case, it is reasonable to assume that the dismissals would be treated by the other employees as a clear message as to what would happen if they lent their support to the union. The conduct of the employer, therefore, clearly constituted the kind of interference that is prohibited by section 56.

[emphasis added]

28. To ensure that the section did not prohibit all employer initiatives impeding union activity (no matter how bona fides) the Board read into the statute an exception for employer conduct "that only incidentally affects a trade union". In this manner the Board proposed, pursuant to section 64, to distinguish between legitimate and illegitimate management initiatives. Presumably an adverse impact on union activity would be characterized as "incidental" where, relying on its expertise, the Board accepted the employer's action as classic business or collective bargaining activity not inconsistent with the scheme of the Act. In effect, the Board would "balance" the conflicting interests of labour and management, honouring accepted relationships but being vigilant that intrusions on statutory entitlements have suitable justifications. In fact, labour board analysis of no-solicitation rules has tended to follow non-motive approach after an adverse effect has been established or inferred. This is particularly apparent from the touchstone American cases which have been referred to and relied upon in Canada. See Republic Aviation Corp. (1945), 324 U.S. 793 and Babcock and Wilcox Co. (1956), 351 U.S. 105 where the relationship of section 8(a)(l) to 8(a)(2), (3), (4) and (5) of the National Labor Relations Act presents an identical overlap problem. See Oberer, The Scienter Factor in Sections 8(a) (1) and (3) of the Labor Act: Of Balancing Hostile Motive, Dogs and Tails (1967), 52 Cornell L.Q. 489 at 509 and Christensen and Svanoe, Motive and Intent in the Commission of Unfair Labor Practices: The Supreme Court and the Fictive Formality (1968), 77 Yale L.J. 1269 at 1277. But see P.N. Cox, A Re-examination of the Role of Employer Motive Under Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (1982), 5 U of Puget Sound L. Rev 161. See also Barbara Jarvis and Associated Medical Services Inc. (1961), 61 CLLC ¶16,218 at p.980; and The Adams Mine, Cliffs of Canada Ltd., 1119821 OLRB Rep. Dec. 1767 at 1769. United Rubber, Cork Linoleum & Plastic Workers of America and United Rubber, Cork, Linoleum & Plastic Workers of America, Local 1028 and Michelin Tires (Canada) Limited, [19791 2 Can. LRBR 388 (Christie). However, we wish to stress that "the balancing" has been more one of examining the record for a legitimate management interest to support the adverse impact on union activity. It has not usually involved a delicate weighing of legitimate but conflicting interests with labour boards being the final arbiters of the right policy mix. We know of no case in Canada or the United States in which a labour board has purported to balance a bona fides exercise of a managerial prerogative, for example, a layoff or subcontracting decision, against its impact on union activity. The no-solicitation cases have looked to identify the managerial interest in a sweeping no-solicitation rule over and above a simple reliance on property rights. Where such an interest is absent, there exists a significant imbalance in favour of the protected activity and this clear imbalance triggers a statutory violation. Indeed, this absence of a managerial interest is the same kind of a condition often justifying an inference of improper motive. The real balancing, in the no solicitation cases, has been between property rights and statutory rights. Unfortunately, this point was not made in the A.A.S. case which in turn gave rise to a concern within the Board itself over the viability of an unrestrained balancing approach.

29. In Skyline Hotels Limited, supra, the Board indicated its concern about the open-ended nature of section 64 and its potential triggering by any bona fide management action having an adverse impact on trade union activity. In contrast to the A.A.S. decision, the Skyline decision proposed to avoid this possiblity by implying in section 64 a motive requirement while noting that motive need not be established always by direct evidence. In this respect the decision stated at pages 1827-28:

The striking aspect of this section is that on its face it makes no mention of anti-union motive or purpose. It simply uses the word "interfere", which, in normal parlance, could be taken to connote either intentional or unintentional conduct. As the Board commented in Westinghouse, [1980] OLRB Rep. April 577; [1980] 2 Can. LRBR 469 at paragraph 54; page 494:

…section 56 of the Act can be interpreted as prohibiting any employer action which has the effect of interfering with the representation of employees by a trade union regardless of whether or not an anti-union motive exists.

It would not matter, in that event, whether the employer could satisfy the Board of a legitimate business purpose for its conduct. But the Board has always had regard to industrial relations reality, and to the scheme of the Act as a whole, and has never interpreted the section in this manner. To do so would of course render meaningless the other specific provisions of the Act, such as section 58, which clearly require the finding of an anti-union motive. Any discharge of a union organizer, or perhaps of any employee during a campaign, for example, could be litigated successfully by a trade union under section 56, whether or not an anti-union motive could be shown under section 58. It is impossible to contemplate that section 56 creates that kind of unfair labour practice. As the Board commented in Ontario Banknote Ltd., (Board File No. 0590-80-U unreported):

5. The union's representative argued, notwithstanding the clear evidence [of no anti-union motive] before the Board, that a discharge during a union campaign can have a chilling effect on the ability to organize. That is no doubt true. Other innocent factors, such as layoffs for good business reasons or a financial downturn might also have a negative impact on the fortunes of a union. As real as those concerns may be to a union, they are not matters which the provisions of the Act are designed to protect unions or employees against. They should, therefore, not be the basis of a complaint to this Board. (National Automatic Vending Co. Ltd., 63 CLLC ¶16,278 at p.¹ 162).

See also Walker Brothers Quarries Limited, [19801 OLRB Rep. July 1107, at paragraph 16. In the absence of an anti-union motive, in other words, it is not a violation of the section if the employer's conduct simply affects the trade union in pursuit of an unrelated business purpose. As the Board said in A.A.S. Communications Ltd., [1976] OLRB Rep. Dec. 751; [1977] 2 Canadian LRBR 73 in commenting on this purposive meaning of the word "interfere".

31. The essential element in any complaint under section 56 is employer interference with a trade union. A distinction must be made, however, between employer conduct that actually interferes with a trade union, and employer conduct that only incidentally affects a trade union.

(emphasis added)

As has often been noted, however, the trade union will not in every case be required to prove by affirmative evidence the existence of an anti-union motive. This is so because the effect of certain types of conduct is so clearly foreseeable that an employer may be presumed to have intended the consequences of his acts: A.A.S. Communications, supra; G. W. Martin Lumber, [1980] OLRB Rep. May 737; [1981] 1; Bank Canadian National (1980), 1 Can.LRBR 470; Radio Officers' Union v. NLRB (1954), 33 Can.LRRM 2417. Once such conduct has been established, then as a practical matter (and whether or not section 79(a) of the Act applies to the situation) the onus is upon the employer to come forward with a credible business purpose to justify the conduct ('cf. NLRB v. Great Dane Trailers (1967), 65 LRRM 2465). It is up to the Board then, in all the circumstances, to decide what the motive of the employer really was.

[emphasis added]

30. In comparing this statement to the A.A. S. approach, emphasis must be given to the Skyline observation that specific evidence of intent to interfere is not an indispensable element of proof. As the United States Supreme Court explained in Radio Officers' Union v. NLRB (1954), 347 U.S. 17 at p.45:

Both the Board and the courts have recognized that proof of certain types of discrimination satisfies the intent requirement. This recognition that specific proof of intent is unnecessary where employer conduct inherently encourages or discourages union membership is but an application of the common-law rule that a man is held to intend the foreseeable consequences of his conduct.

Also relevant is the fact that improper motive need not be the dominant purpose underlying disputed conduct for the Act to be breached. It is sufficient that employer conduct only be partially motivated by anti-union considerations. See the full discussion in Westinghouse Canada Limited, 80 CLLC ¶ 16,053 para's 46-56. But for recent developments in the United States see Wright Line (1980), 251 N.L.R.B. 1083, cert. denied (1982), 455 U.S. 989; N.L.R.B. v Transportation Management Corp. (1983) 113 L.R.R.M. 2857 (U.S.S.C.); Kilgore, The Proper Test for Determining Violations in Mixed Motive Cases (1983) 34 Lab. L. 279. Indeed, while the Westinghouse case involved direct evidence of motive, the combined effect of the mixed motive approach and legal inference can result in the striking down of employer con­duct where the Board is not prepared to accept tendered evidence of a bona fides business purpose as a complete answer to the adverse impact on trade union activity complained of. However, usually the Board has been reluctant to find by legal inference a partial but improper motive where direct and persuasive evidence of an acceptable business justification has been established by a respondent employer. See Webster & Horsfall (Canada) Ltd., [1969] OLRB Rep. Sept. 780; Westroc Industries Ltd., 81 CLLC ¶ 16,093 and St. Catharines General Hospital, [19821 OLRB Rep. March 441.

31. From paragraph 30 it is therefore important to appreciate that when direct evidence of motive is not available, the Board is often required to engage in a form of balancing of conflicting interests in deciding whether to infer an improper (and possibly partial) motive on the evidence before it. Balancing is not eliminated by requiring that motive be established and this, on occasion, has caused motive to be referred to as a "fictive formality". In this respect, labour law is little different from those other fields of law discussed above. As the United States Supreme Court stated in Erie Resistor (1963), 373 U.S. 221 at 228-30 the necessary intent may be:

[Flounded upon the inherently discriminatory or destructive nature of the conduct itself. The employer in such cases must be held to intend the very consequences which foreseeably and inescapably flow from his actions and if he fails to explain away, to justify or to characterize his actions as something different than they appear on their face, an unfair labor practice charge is made out. [Citing Radio Officers.] But, as often happens, the employer may counter by claiming that his actions were taken in the pursuit of legitimate business ends and that his dominant purpose was not to discriminate or to invade union rights but to accomplish business objectives acceptable under the Act. Nevertheless, his conduct does speak for itself — it is discriminatory and it does discourage union membership and whatever the claimed overriding justification may be, it carries with it unavoidable consequences which the employer not only foresaw but which he must have intended. As is not uncommon in human experience, such situations present a complex of motives and preferring one motive to another is in reality the far more delicate task, reflected in part in decisions of this Court, of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner and of balancing in the light of the Act and its policy the intended consequences upon employee rights against the business ends to be served by the employer's conduct. This essentially is the teaching of the court's prior cases dealing with this problem and, in our view, the Board did not depart from it.

[Some emphasis added.]

Thus the differences between the A.A. S. and Skyline decisions are not as great as may at first appear. Both approaches involve some balancing; both take into account the scheme of the Act; and, without direct evidence of motive, both approaches in effect require a considerable imbalance of interests in favour of the protected activity before a violation will be established. Unfortunately, however, it cannot be said that the requirement of motive in all claimed applications of section 64 is a superfluous detail and that both approaches always result in the same outcome. A non-motive approach to section 64, by requiring a substantial imbalance of interests, is capable of accommodating the concern that section 66 not be read out of the Act. Usually, the same imbalance will support an inference of improper motive which should negate the superiority of section 64 in the run of the mill section 89 case. On the other hand, the universal requirement of motive for section 64 can deprive the statute of the necessary flexibility to respond to certain troublesome situations which its otherwise general wording would provide.

32. For example, cases arise where employer conduct has a significant impact on protected activity and, while supported by good faith, does not reflect a persuasive or worthy business purpose. The balance between employer and employee interests may therefore strongly favour the protected activity, but the absence of a motive to interfere precludes a remedy. The no-solicitation cases are one example but not the only illustration of this problem. Indeed, the no-solicitation cases could probably be preserved on a compulsory motive test by employing a legal inference of intended interference notwithstanding the longstanding and consistent application of a no-solicitation rule without discrimination. But the problem transcends the no-solicitation cases. In NLRB v. Burnup & Sims Inc. (1964), 379 U.S. 21 two employees, who had been active in an attempt to organize the respondent's plant, were discharged as a result of the employer's sincere but mistaken belief that they had threatened to dynamite his plant if the organizational drive was unsuccessful. The situation was therefore somewhat analogous to the submission of the complainant in this case that, as a minimum, Blanchard and Richard were discharged because of a mistaken belief as to their presence at the restaurant. The same argument can also be made with respect to Mark MeCarroll's termination to the extent it was based on his alleged threatening with Turnbull's knife. Justice Douglas for the United States Supreme Court in the Burnup & Sims Inc. case saw no need to decide the matter before that Court under section 8(a)(3) (the equivalent to section 66). He ruled that a discharge for alleged misconduct arising out of protected activity constituted a violation of the broader provisions of section 8(a)(1) (the equivalent to section 64) without reference to section 8(a)(3) no matter what the employer's motive when it was shown that the misconduct never in fact occurred. In adopting this position, the learned Justice wrote:

.... In sum, §8(a)(1) is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct.

That rule seems to us to be in conformity with the policy behind §8(a)(1). Otherwise the protected activity would lose some of its immunity, since the example of employees who are discharged on false charges would or might have a deterrent effect on other employees. Union activity often engenders strong emotions and gives rise to active rumors. A protected activity acquires a precarious status if innocent employees can be discharged while engaging in it, even though the employer acts in good faith. It is the tendency of those discharges to weaken or destroy the §8(a)(l) right that is controlling. We are not in the realm of managerial prerogatives. Rather we are concerned with the manner of soliciting union membership over which the Board has been entrusted with powers of surveillance. See Garment Workers v. Labor Board, 366 U.S. 731, 738-739, 48 LRRM 2251; Labor Board v. Erie Resistor Corp., 373 U.S. 221, 228-229, 53 LRRM 2121. Had the alleged dynamiting threats been wholly disassociated from §7 activities quite different considerations might apply.

33. The approach is to be compared with this Board's decision in Toronto Star Limited (1971), OLRB Rep. Sept. 582 where an employee was discharged because the employer wrongly but in good faith believed he had intimidated and attempted to cause another employee in the respondent's mail room to sign a union card. In dismissing the complaint the Board dealt only with section 58(a) and at paragraph 13 reasoned:

On the evidence before us, we find that the respondent in this case attempted to put an end to the alleged threatening or coercive activities of Ferguson. The fact that these activities did not take place does not, in itself, make the respondent's discharge of Ferguson contrary to the Act. We are of the view that Davies sincerely believed that Ferguson had engaged in threatening or coercive activities with respect to Faver. However, had Davies made a full inquiry he would have become disabused of this belief. The fact that he did not make these inquiries is not evidence of bad faith on his part but in our view is evidence of the fact that he too was emotionally upset by the Joe G. incident and this was aggravated by Faver's complaint. While it is true that Davies acted precipitously in effecting the discharge in the manner in which he did and while such discharge was unfair and unjust, there is nothing cohtrary to section 58(A) of the Act with respect to the discharge. We accept the fact that Davies was motivated solely by the desire to put an end to what he believed to be threats or coercion. If Davies had acted so injudiciously in the manner in which he made the inquiries in a situation which was not aggravated by the Joe G. incident, his good faith would be cast in doubt. However, the Joe G. incident in effect panicked Davies into making the precipitous decision.

After reflecting on the relative merits of these two positions, we have come to the view that Burnup & Sims Inc. approach is the more appropriate position for the Board to take today. Such cases can and should be considered pursuant to section 64. The only other course open to us would be to dismiss a complaint where mistake has been established and then carefully scrutinize the employer's subsequent hiring decision when the grievor reapplies for employment. It is our view that such an approach would be too indirect and would not encourage the requisite caution that an employer should exercise when administering discipline in the context of activity protected by this Act. Accordingly, we hold that the respondent violated section 64 of the Act in discharging R. Richard, R. Blanchard and M. McCarroll. They are to be immediately reinstated to their former positions. In the cases of Blanchard and Richard, they are to receive full back pay with interest in accordance with Board policy. McCarroll, however, is to be reinstated without back pay and on terms stated below having regard to the conduct it was established he engaged in. We will not condone such conduct with a back pay order. It is not, however, clear that he would have been terminated for only that misconduct having regard to the company's response to similar actions on the picket line. As for the argument that McCarroll would have been terminated simply for his presence at the restaurant our following findings are applicable.

34. In this case all of the grievors had been involved in picketing and strike activity which are fundamental rights under the Act. As the Board held in Dominion Citrus and Drug Ltd., [1982] OLRB Rep. Dec. 1828 at 1839 lawful strike activity is protected by sections 3 and 66. Picketing, being a normal adjunct of a strike, is also protected. Did the grievors lose their protection by attending at the Vesta Restaurant and in acting in the manner that each of them did? Did the respondent violate the Act by discharging them and by refusing to arbitrate the resulting grievances? In answering these questions, we should review the way in which this collective bargaining dispute unfolded. The respondent company, concerned that the previous round of negotiations had dragged on, went on the offensive in this round. It applied for conciliation and immediately implemented its last offer as soon as it had a right to. When a strike ensued, the respondent turned forthwith to a personnel agency experienced in recruiting and transporting workers during a strike. Special vehicles and pick-up procedures screened these workers from contact with striking employees. The strike had been in progress almost two months before the incident occurred and had been preceded by earlier mischief (and the related laying of criminal charges) on the plant picket line without discipline of any kind. The use of the customized vans and external pick-up locations in time encouraged a counter strategy involving attendance of strikers at a pick-up location. The concealment of the replacements in the van may also have caused some of the strikers to suspect that a few of their own members might be crossing the picket lines. Had they merely attended at the restaurant with signs or conveyed their displeasure in traditional terms, their conduct would have fallen within the picketing contemplated by sections 76(2) and 3 and been protected by sections 64 and 66. See Consolidated-Bathurst Packaging Limited, 1119821 OLRB Rep. Sept. 1274. The activity would have been a lawful extension of the plant picket line and not something, standing by itself, that the respondent was legally entitled to take exception to. The respondent was entitled to attempt to continue its operations but it was not entitled to immunity from any lawful counter-picketing strategy that its tactics attracted.

35. The respondent, however, contends that the manner in which the grievors attended the restaurant demonstrates that their arrival there was not a simple extension of the picket line, but rather a concerted attempt to interfere unlawfully with the pick-up and the workers involved. In this respect it relies on the numbers of striking employees involved, the was' in which they blocked the van with their vehicles, and the physical assault on Mr. Turnbull and Mr. McCarthy. Counsel submits that they were discharged because they were all party to the unprovoked assaults and not for any other reason. We further note that this employer has not committed any earlier unfair labour practices and the collective bargaining relationship is not a recent one involving a first contract.

36. Subject to our comments on section 64 above, the Board is concerned with the actual motivation of the respondent in acting as it did. The Board must look beneath the stated purposes and focus on the facts established. Like many of the difficult cases brought before this Board, there is no direct evidence that the respondent was improperly motivated. The assault on two innocent persons was unprovoked and constituted serious misconduct. It therefore cannot be said that discharge was a clearly excessive response for those who engaged in the physical assault. The respondent was also under no legal obligation to arbitrate the discharges and trade union officials who engage in misconduct have no immunity from discipline under the Act. Whether Clayton knew that D. McCarroll and L. Lutes, the president and recording secretary, were the individuals along with Prewal who carried out the assault does not and cannot change the matter. These three grievors were the authors of their own misfortune and, on the evidence before us, we are not prepared to draw an inference that discharge was selected, in part, because of their official status and because they were engaged in a strike.

37. It is important to point out in light of the earlier discussion of principle, that even a non-motive section 64 analysis of these three discharges and refusal to arbitrate would not produce a different result to this point. We have found that, given the circumstances, the decision to discharge was not clearly excessive and by itself a hallmark of anti-union animus. The decision not to arbitrate merited no different characterization. Were we to intervene on the basis of section 64, the Board would be saying that all discipline issued during a strike must be submitted to arbitration because any potential excessiveness could deter participation in protected activity. This extreme sensitivity to protected activity might well be seen as insufficiently sensitive to improper picket-line misconduct and would not obligate trade unions to take all such issues to arbitration instead of placing them on the bargaining table. It would also be difficult to reconcile our sensitivity to any adverse impact on protected activity with the absence of a legal obligation to arbitrate arising under the Act. A clear imbalance in favour of protected activity does not exist. In this type of situation it seems to us that a non-motive approach to section 64 should be reserved for instances of clear mistake or for discipline clearly out of all proportion to the misconduct in issue.

38. The discharges of Carrier, Brinston and Mez are, however, a different matter. It is clear that these employees were simply present at the restaurant. They did not engage in the assault. We have found above that their presence at the restaurant would be an aspect of protected activity (in effect an adjunct of their strike) unless their sole motivation for attending was to facilitate the assault on Turnbull and McCarthy. M. McCarroll testified that the purpose of the mission to the restaurant was to identify the strike replacements given the strategy of concealment the respondent had adopted. This rationale is a plausible one notwithstanding their manner of arrival. In any event, the respondent decided on termination before it knew of the details of the incident and at no time did it engage in an inquiry which attempted to assess the motives of Carrier, Mez and Brinston in attending. In our view, the speed and severity of the respondent's response indicated a disposition that they had "no business" being at the restaurant whatever their purpose. On the evidence before us we are prepared to infer that in expanding the circle of discharges beyond those who actually inflicted the assault, the respondent was at least in part objecting to their presence at the restaurant regardless of their motive and seizing upon a response that would make the greatest impression on other employees for the duration of the strike. Accordingly, we find that the respondent breached section 66 in dismissing these three employees. This conclusion would also apply to the Richard and Blanchard discharges. Had the respondent demonstrated to us that it was sensitive to the protected right of striking employees to attend at the restaurant unless their intent was to assault the employees, our conclusion would have been different because these three employees did not testify to permit us to assess their actual intent. There would have been no evidence on which to find a mistaken belief and no basis for inferring an improper motive. Indeed, because these employees did not testify before the Board, we have decided to reinstate them to their former positions with no compensation. We understand that they are facing criminal trials but we are uncomfortable with their decisions not to testify. In the circumstances, our concern for what happened at the restaurant leads us to tailor a remedy for these employees which conveys that concern. No compensation is directed.

39. Finally, we turn to the dismissal of M. McCarroll which in many respects is the most difficult matter. We have found the respondent to have been mistaken with respect to the alleged knife threat but, on his own admission, McCarroll assaulted the van. Nevertheless, there is no evidence before us that at the time the company decided on the discharges it was directing its attention to anything other than the assaults on the two strike replacements. Moreover, the company had not issued any discipline in relation to earlier mischief on the picket lines at the plant. On the evidence then we are prepared to infer that M. McCarroll was, in part, terminated for just being present at the restaurant in the same manner as Brinston, Mez and Carrier or he was terminated in the mistaken belief that he had physically threatened one of the strike replacements. His termination therefore offends sections 66 and 64 of the Act. However, we are not about to condone the misconduct he did engage in or the incident as a whole by awarding him any back pay. We are, however, prepared to direct his reinstatement to his former position provided that he reimburses or makes arrangements to reimburse the company for the damage inflicted on the van driven by Auger.

40. Finally, we have concluded that the entire incident deprives the complainant of the Board's usual posting order.

41. In summary the Board declares:

(i) that the respondent company violated sections 64, 66 and 70 of the Act in discharging R. Richard and R. Blanchard and directs that they be reinstated to their former positions with full compensation together with interest;

(ii) that the respondent violated sections 64, 66 and 70 of the Act in discharging F. Mez, C. Carrier and G. Brinston and directs that they be reinstated to their former positions but without compensation; and

(iii) that the respondent violated sections 64, 66 and 70 of the Act in discharging M. McCarroll and directs that he be reinstated to his former position without compensation and subject to the condition that he pay or make arrangements to pay for the property damage he caused on the day in question.

(iv) In all other respects this complaint is dismissed.