MacKay v. United Steelworkers of America, 1983 CanLII 825

[1983] OLRB Rep. July 1064

1577-82-R; 0066-83-U Marvin MacKay on behalf of a group of employees, Applicant, v. United Steelworkers of America, and its Local 13571, Respondent, v. Irwin Toy Limited, Intervener; United Steelworkers of America, and its Local 13571, Complainant, v. Irwin Toy Limited, Respondent, v. Marvin MacKay on behalf of a group of employees, Intervener

BEFORE: Michel G. Picher, Vice-Chairman, and Board Members C. A. Ballentine and

J. A. Ronson.

APPEARANCES: Howard Levitt, Marvin McKay and Israel Palter for the applicant; James Hayes, Bmam Herlich and Alex Muselius for the respondent; A. D. G. Purdy for the intervener

DECISION OF MICHEL G. PICHER, VICE-CHAIRMAN, AND BOARD MEMBER C. A. BALLENTINE; July 8, 1983

1. The Board directs that the above termination application and complaint be and the same are hereby consolidated.

2. This is a complaint under section 89 of the Labour Relations Act which has been joined with a previously pending application for the termination of the complain­ant's bargaining rights. By a decision dated April 6, 1983 the Board ordered the taking of a representation vote in the application for termination. The vote was conducted on April 25, 1983. In light of certain allegations of unfair labour practices which the union maintains affected the ability of employees to vote freely, the Board sealed the ballot box and postponed the counting of the ballots pending a determination on the union's complaint.

3. The union submits that the respondent has violated sections 15, 64, 66, 67 and 79 of the Labour Relations Act by a course of conduct which it maintains amounts to open and systematic discrimination against the respondent's unionized employees.

4. The facts are not in substantial dispute. They may be summarized as follows:

(1) The respondent manufactures toys and other products, including gas barbecues, at its two plants in Metropolitan Toronto.

(2) The respondent's plant at 145 North Queen Street, Etobicoke (hereinafter "North Queen"), is unionized. Its second plant, located on Hannah Street (hereinafter "Hannah") in Toronto is not unionized.

(3) The union succeeded in negotiating a first collective agreement at North Queen only after a bitter strike of some six months' duration. The collective agreement, which became effective for one year on the fifth day of January, 1982, gave the unionized employees at North Queen a 13% wage increase. Shortly after its agreement with the union the respondent gave its non-unionized employees at the Hannah plant a 14% wage increase.

(4) The North Queen collective agreement introduced a sick pay plan for the benefit of employees effective May 1,1982. Shortly after the collective agreement was concluded the respondent introduced what was described without contradiction as a "vastly superior" sick pay plan for the employees at its non-unionized Hannah plant. The more generous sick pay plan at Hannah, which was effective January 1, 1982, has some 14 exclusions from its coverage, the first of which listed is "employee covered by a Union Contract".

(5) During the early months of the collective agreement the respondent employed in excess of 100 "temporary" employees to do bargaining unit work. These employees, for whom union dues were not deducted, were provided by Unistaff, an employment agency owned and operated by Securicor Investigation and Security Ltd. The union filed a grievance to arbitration in protest. Prior to the hearing it obtained a settlement which put an end to the practice and provided compensation for unpaid union dues.

(6) During the early months of the collective agreement, the respondent changed its production practices to contract out substan­tial amounts of work which had been previously performed at North Queen. While the practice appears to have originated in the strike, once the collective agreement was signed the respondent continued the practice rather than recall unionized employees who had previously done the work at North Queen. The union filed an unfair labour practice complaint (Board File Number 0377-82-U) which resulted in a written settlement dated June 15, 1982. By the terms of settlement the respondent agreed to cease contracting out and to recall the employees in the bargaining unit to perform the work which had been jobbed out.

(7) On October 12, 1982, the union gave the company notice of its intention to bargain a renewal of the collective agreement. Bargaining subsequently took place between the parties on November 12, November 23, December 10, December 23 in 1982 as well as January 12 and April 15, 1983, the last negotiation being with the assistance of a conciliation officer.

(8) On November 18, 1982, an application for a declaration terminat­ing the union's bargaining rights was filed by employee Marvin MacKay. The hearing of the termination application was concluded on February 10, 1983. On April 6,1983, the Board ordered the taking of a representation vote which was conducted on April 25, 1983. The ballots were sealed and not counted in light of the union's complaint.

(9) In the early part of 1983, the company had a substantial order of portable gas barbecue units to fill. In the past, the assembly and finishing of gas barbecues was performed at North Queen. At the bargaining session of January 12,1983, the respondent proposed to the union that the barbecue assembly and finishing work be moved to the Hannah plant where a shortage of work threatened to cause a layoff of the non-unionzed employees. The union refused to consent to the transfer out of the bargaining unit work, largely on the grounds that the North Queen plant had itself suffered a substantial reduction in work, going from 114 employees prior to the strike to some 54 employees at the time of the negotiations.

(10) Under the terms of the collective agreement the respondent had the right to transfer employees from another plant to the North Queen location. Between January 12th and the date of the representa­tion vote the respondent transferred over 60 employees from Hannah to North Queen. There was no attempt to alter the voting constituency, as the transferred employees were not eligible to vote. The transferred employees were not, however, paid according to the collective agreement. While two employees previously transferred from Hannah to North Queen in October of 1982 had their wages adjusted to the lower rates in the collective agreement at North Queen, the same was not done for the large number of employees transferred to work on the gas barbecue production in the period leading up to the vote. The respondent continued to apply to the employees transferred from Hannah the same rates which they were paid at that location for work which they performed at North Queen. The transferred employees were all either assemblers, quality control inspectors or, in one case, a material handler. Without exception, the transferees from the Hannah plant were higher paid than the unionized employees in the same classifications with whom they worked side by side. While some of the unionized employees were paid at red circled rates in excess of the collective agreement rates, apparently by agreement with the union, the wages paid to the employees transferred from the Hannah plant were in every case greater than the red circled rates paid to North Queen employees in the same classifications.

(11) Notwithstanding its earlier agreement with the union to cease contracting out, in the first half of 1983 the respondent contracted portions of the fabrication and finishing of its portable gas barbecues to another company.

(12) During the same period and to the present, the bargaining position of the respondent has been an outstanding offer for a wage increase of 8% to employees at North Queen. The employer's offer would give the unionized employees at North Queen a lower wage rate than is presently being paid to the non-union employees at the Hannah location. There is no evidence to suggest that there is any difference in the nature of the work or of the skill and ability required of employees at the two locations or that the seniority of employees at Hannah would justify the difference.

(13) It is undisputed that the respondent is in a healthy economic position. In a letter to all employees dated May 6, 1983, company president Arnold B. Irwin announced to all employees that 1982 saw the highest profits in the company's history. The employees in both plants were each given an extra five days' pay as a profit sharing bonus.

5. Counsel for the union submits that the foregoing facts disclose a pattern of deliberate discrimination calculated to convey the message that within the respondent's company unionized employees will be financially penalized while employees who do not choose union representation will be rewarded. He submits that the intended impact of intermingling the employees of the two plants during the weeks leading up to the representation vote was to convey that economic lesson to the employees who would be voting on union representation.

6. Counsel for the respondent submits that its actions were directed to preserving employment opportunities for its own personnel. He submits, moreover, that the differential in wages between the plants had existed for approximately a year before the intermingling began. Against that background, he maintains that the bargaining position of the respondent was not in violation of section 15 of the Act and that the transfer to North Queen of employees from Hannah at wages higher than those paid to the unionized employees was not a violation of the Act nor an interference with the ability of the employees to express their wishes in the termination vote.

7. Counsel for Mr. MacKay appeared at the hearing and made submissions with respect to his client's interest. He submits that the case does not disclose grounds for reconsidering the Board's decision to hold a representation vote in Mr. MacKay's termination application. He points to the fact that the actions complained of by the union principally occurred after the application for termination was filed, emphasizing that the impugned preferential treatment of employees from Hannah took place entirely after the circulation of Mr. MacKay's petition and, therefore, should not be allowed to prejudice his client's right to a representation vote based on a petition voluntarily signed by the employees. He submits that the ballots which were cast should be counted.

8. It is obviously not axiomatic that the unionized employees in one plant of an employer must necessarily receive the same treatment in respect of wages and benefits as comparable employees in another plant. Economic considerations may justify different wages and benefits in different work places. By the same token, it is plainly unlawful for an employer to punish a group of employees because they have chosen union representation or to reward another group because they have not. If it is unlawful for an employer to make such distinctions, it is equally in violation of the Act for it to bring them forcibly to the attention of employees as a means of discouraging union support in the course of bargaining or in a representation vote. For those reasons the facts in the instant case raise issues fundamental to the recognition of the union as exclusive bargaining agent of the employees and going to the right of employees to vote freely, without promises, threats or undue influence, on the question of union representation.

9. The complaint is made both at the level of interference with the representation vote and in respect of the quality of bargaining. In this case the evidence establishes that a collective agreement was in place at North Queen making binding provision for wage rates at that location. To produce its gas barbecues the respondent had the option of hiring new employees at North Queen or offering Hannah employees, who would otherwise be laid off the opportunity of some work at the lower North Queen rates. It chose neither. Rather, with the application for the termination of the union pending it transferred substantial members of employees from Hannah to North Queen on a rotating basis, without any adjustment in their wages to the lower rates in the collective agreement. In the result employees in like classifications worked together, with higher wages being paid in each case to the transferees from the non-union plant. At the same time, the company's outstanding monetary offer, to the union, apparently made in a time of unprecedented profits, was pitched at a level that would have left the unionized North Queen employees short of what is now being paid to the unorganized employees at Hannah.

10. The only evidence before the Board on the comparability of the work forces and the work in both plants is that of union representative Alex Muselius. While he has not visited the Hannah plant he has some general familiarity with the respondent's operations through extended contact with it since the certification of the North Queen plant. His evidence is that the plants are comparable in their product lines and in the skill and ability of their respective work forces. The respondent called no evidence to explain the historical basis, if any exists, for the wage and benefits differential between its two plants. Nor was any witness called to explain the rationale for its transfer of Hannah employees to North Queen in disregard of the collective agreement wage rates or to explain the rationale for the company's outstanding offer in the next agreement of lower wages for unionized employees than are now being paid to its non-union employees at Hannah.

11. The different treatment of employees may be explained on the basis of legitimate economic reasons. Where, however, no such reasons are apparent and, as in the instant case, no evidence is forthcoming to explain the preferential treatment of one group of employees over another, the Board must look with great care to the whole of the evidence. That is particularly true in these circumstances where, given the bargaining history, the parties are in a situation for all practical purposes likened to a first agreement negotiation. Absent any explanation, parties may be presumed to intend the conse­quences of their actions. While in this case the burden of proof generally referred to as the "legal burden", is at all times on the union, the adducing in evidence of facts which would support adverse inferences against the employer shifts the onus to the employer to come forward with some explanation for its actions.

12. There is much in the evidence before the Board to substantiate the submission of the union that the respondent has, from the time of the union's certification and its strike, deliberately created the conditions for an early termination of the union's bargaining rights. The events immediately following the strike point in that direction. They include the contracting out of bargaining unit work and the employment at North Queen in substantial numbers of temporary non-union employees supplied by a security company. At or about the same time, the company instituted the unexplained preferential wage treatment of all employees at the non-unionized Hannah plant, along with better sick benefits. There is no evidence that the greater increase at Hannah was implemented to bring the employees there to an equal footing with the North Queen employees. On the evidence of the union, absent any explanation by the employer, we must conclude that previously the employees were on the same wage scale in both plants and that the 14% increase raised the entire scale of wages at Hannah above the union scale at North Queen. Later, at a time when it declared a profit-sharing dividend for all employees, the company's position with its unionized workers was that it could not or would not pay them at the same levels it was prepared to pay comparable employees in its unorganized plant.

13. While these facts standing alone might cause the Board substantial concern, they take on added significance in the context of the Board's representation vote. The evidence establishes that in October of 1982 two employees were transferred from the Hannah plant to the North Queen facility. At that time their wages were adjusted to come within the terms of the collective agreement in force. Several months later, when the application for the termination of the union was pending, the respondent implemented the transfer of over sixty employees from the Hannah plant oii a short-term basis without any adjustment in their wages. In all cases the Hannah employees were paid more than employees in the same classifications at North Queen and in all but two cases their present wages exceed the wages which the unionized employees are currently being offered in bargaining by their employer. As the vote approached the two groups of employees worked side by side.

14. The transfer and intermingling of the employees cannot be viewed in isolation. Given the background of the respondent's prior attempts to contract out bargaining unit work and to channel the work of the unionized plant to the employees of a security firm, they can be understood as one further step in a consistent pattern of conduct aimed at undermining the bargaining rights of the trade union.

15. It is contrary to the Act to either punish or reward employees because of their preference for union representation. (See Emnpco-Fab Ltd., [1982] OLRB Rep. Aug. 1162; Peabody Coal Company, (1982) III LRRM 1480; NLRB v. Rubatex Corp., (1979) 601 F 2d 147, 101 LRRM 2660 (U.S.C.A. 4th Cir.).) It is also a violation of the duty to bargain in good faith for an employer to advance, without any economic justification, an offer to its unionized employees which is intended as a message that they will suffer economically as long as they choose to be represented by a union or exercise the rights of organized employees. For example, the Canada Labour Relations Board has recently found that an employer violated the Canada Labour Code by bargaining to impasse collective agreement terms which it found were intended to reward employees who did not participate in a lawful strike and punish employees who did. (Eastern Provincial Airways Ltd., decision dated May 27, 1983, as yet unreported).

16. The wholesale transfer of non-union employees to the North Queen location where they worked side by side with unionized employees who were paid lower rates put the union in the worst possible position during the period of the pending application for the termination of its bargaining rights. The stark contrast in the treatment of the two groups of employees would not be wasted on those who were to vote on union representation. The differential in wages paid, coupled with the prospect of a continued disadvantage to unionized employees in light of the respondent's outstanding wage offer, was tantamount to a statement from their employer that they would be financially rewarded if they voted to reject the union.

17. We see nothing in the collective agreement to authorize the transfer of employees from the plants at rates other than those in the collective agreement. Article 21.03 of the collective agreement provides:

21.03 Temporary Transfers

(a) An employee who is temporarily transferred to meet the Company's convenience to another job for which the regular rate is less than that which the employee is receiving, he/she shall retain his/her former rate, and if such transfer is to a job with a higher rate, the employee shall receive the higher rate paid for such job.

(b) An employee who is temporarily transferred from his/her regular job due to lack of work shall be paid the rate of pay for the job to which he/she is transferred provided the time spent on the new job is one hour or more.

(emphasis added)

That provision, frequently found in collective agreements, plainly refers to the transfer of employees between jobs within the bargaining unit. It cannot, in our view, be advanced as contractual authority for the employer to freely disregard collective agreement wage rates when it transfers higher paid employees from another plant. In our view it would require clear and unequivocal language to support that conclusion.

18. Part of the evidence adduced by the union was directed to establishing what it maintained was a violation of its settlement of June 15, 1982 in relation to contracting out work at the North Queen plant. It is not disputed that the respondent has contracted out substantial portions of the assembly and finishing work on the gas barbecue product lines. Its earlier settlement with the union contains, in part, the following express provisions:

This settlement is made pursuant to Sections 89 (7) of the Labour Relations Act and the terms are set out as follows.

1. All the work performed at the North Queen location of the Company within one year prior to the strike of the United Steelworkers of America commencing June 17, 1981 will forthwith be performed at the said North Queen Street location and will not be performed at any other location of the Company, nor by an outside contractor, agency or person.

2. Without limiting the generality of the foregoing the work referred to in point I includes the following:

(ii) All work relating to the "Bar-B-Q" product lines, except bag assembly work.

19. The respondent's practice of contracting out appears to be in clear violation of the terms of settlement reached with the union. Counsel for the respondent submits that the settlement was made for the limited purpose of securing the reinstatement or recall of employees who at the time were still not returned to work after the strike. While that may have been the motive for the complaint, and while the settlement provides for the reinstatement of bargaining unit employees, the obligations appearing on the face of the settlement are not qualified. There is nothing in the language of the settlement to limit its application or enforcement to a one-time-only basis. Moreover, the fact, admitted by the respondent, that on January 12, 1983 it approached the union for its approval to move the barbecue assembly work out of North Queen suggests that it felt bound by the settlement at that time, the terms of which precluded moving work to "any other location of the company". At a minimum, the settlement terms would appear to be enforceable for the life of the collective agreement, a contract whose terms are still subject to the statutory freeze. In these circumstances, the Board concludes that there has been a violation of the settlement and, by extension, a violation of the freeze provisions under section 79 of the Act.

20. The motive for an unfair labour practice is seldom, if ever, admitted. More often that not it must be inferred from the preponderance of the evidence. In this case the conduct of the respondent in a sustained pattern compellingly suggests anti-union motivation as the most probable explanation for its actions. The significant events include the erosion of the bargaining unit by the hiring on to the shop floor of a substantial number of employees provided by a security firm, the undermining of the respondent's bargaining rights by contracting out both immediately after the strike and again prior to the vote, the payment of higher percentage increases and more generous sick pay benefits to non-unionized employees at the Hannah plant, the intermingling of the two groups of employees without regard to the collective agreement wage rates prior to the vote and the tabling of the company's present offer which would continue, if not widen, the existing gap between union and non-union employees.

21. In light of these events the words spoken by Mr. Lowe, manager of the North Queen plant, to a group of employees opposed to the union shortly after the strike ended take on greater significance. In the hearing on the voluntariness of the termination petition the Board heard evidence that Mr. Lowe told the employees who had opposed the union that "hopefully somewhere down the line I'll be able to look after you". In light of the cross-examination in that hearing of employee Anthony Branco, who was found to have made a prior inconsistent statement, we are satisfied that Mr. Lowe also told his anti-union employees that there would be "a pot of gold at the end of the rainbow". The evidence now before us is consistent with a sustained intention to bring that promise to fruition. We are satisfied that the respondent sought deliberately to undermine the union s bargaining rights both by eroding the size of its bargaining unit and by conveying to the employees in the bargaining unit that better wages and benefits would be realized only if they rejected the union. Absent any explanation from the respondent we must conclude that the employer's actions in transferring the Hannah employees were calculated to bring undue influence to bear on the choice of the employees on the issue of the termination of the union's bargaining rights.

22. On the whole of the evidence the Board also finds that the respondent has bargained in bad faith. It has through its outstanding wage offer, held out the implicit promise of continued preferential treatment to its non-unionized employees and the economic punishment of those who would choose union representation. This it has done as a deliberate means of bringing undue influence and the implicit promise of reward to bear on the employees participating in the vote on the termination of the union. For the foregoing reasons the Board concludes that the respondent has violated sections 15, 64. 66. 67 and 79 of the Act.

23. We turn to consider the remedy. The Board accepts the submission of counsel for the union that its remedy should be directed, insofar as possible, to restoring the union to a situation in which the harm suffered by the unionized employees and the union is undone. It appears from the agreed facts that the union was aware of the better wages and benefits being paid at the Hannah plant since early 1982. That situation continued for over a year without complaint from the union, and it is only when the employees were intermingled in disregard of the terms of the collective agreement that this complaint materialized. The real thrust of the union's complaint is the mixing of the two groups of employees in the freeze period prior to the representation vote, coupled with the apparently punitive offer of the respondent in bargaining. Those are the actions of the employer which have undermined its ability to exercise and retain its bargaining rights.

24. It appears to the Board that these effects of the respondent's unfair labour practices can be remedied by a number of affirmative orders directed to the union's legitimate collective bargaining concerns. It is appropriate to make a bargaining order predicated on the normal expectation that any new wage provisions will be retroactive to the expiry date of the first collective agreement. This can be achieved by ordering the tabling forthwith of a non-discriminatory wage offer with retroactivity to January 5, 1983. That would restore the unionized employees to the knowledge that any imbalance in their wage treatment over the retroactivity period, which is the same period the Hannah employees were transferred to North Queen, will be remedied. They may then vote on union representation knowing that the discriminatory wage treatment they received over that period would be undone by the terms of the new collective agreement. We are therefore satisfied that the harm to the union can be redressed by an order that will put an end to the unfair intermingling of employees in the future coupled with an order requiring the respondent to table a retroactive wage offer that is not discriminatory towards its unionized employees.

25. We are further of the view that in light of the substantial unfair labour practices of the company, the representation vote held on April 25th cannot be relied on as an expression of the free wishes of the employees in the bargaining unit. The Board accepts the submission of counsel for Mr. MacKay that the rights of those employees who voluntarily petitioned to terminate the union's bargaining rights should not be unduly prejudiced by the employer's violations of the Act. It appears to the Board, however, that the interests of the termination applicants and those of the union can be balanced. The taking of a second representation vote, deferred to a date which will allow a reasonable period of time for the Board's remedial order to undo the effects of the employer's unfair labour practices will achieve that end. We are satisfied that the taking of a second representation vote of the same employees who were entitled to vote previously three months from the date of this order will reasonably balance the interests of the termination applicants and the union.

26. The Board therefore orders as follows:

27. The respondent shall forthwith cease and desist from the contracting out of bargaining unit work contrary to its settlement of June 15, 1982;

28. The respondent shall cease and desist forthwith from the transfer of employees to its North Queen plant from its Hannah plant unless employees from both locations in the same classifications are paid the same rates or such other rates as may be consented to by the Union.

29. The respondent shall table forthwith a wage offer the terms of which shall not be discriminatory towards unionized employees and the retroactivity provisions of which shall compensate the employees at North Queen for discriminatory wage differentials in effect in the North Queen plant after January 4, 1983.

30. The respondent shall cease and desist from bargaining in bad faith and shall refrain from making any other offer intended to discrimi­nate against its unionized employees.

31. The respondent shall post forthwith copies of the attached notice marked "Appendix", duly signed by its appropriate officer in conspicuous places at its places of business or work centres where bargaining unit employees are based, including all places where notices to employees are customarily posted, and keep these notices posted for 60 consecutive working days. Reasonable steps shall be taken by the respondent to insure that the said notices are not altered, defaced or covered by any other material.

32. The Registrar is instructed to destroy the ballots cast within thirty days of this decision and to re-conduct the representation vote herein on the first convenient date after the expiry of three months from the date of this decision.

DECISION OF BOARD MEMBER JAMES A. RONSON;

1. By majority decision dated April 6, 1983 the Board ordered a representation vote of all employees of the respondent employer employed at 165 North Queen Street, Etobicoke ("North Queen Plant"). That order was a result of an application for termination under section 57 of the Labour Relations Act which was filed on November 18, 1982, and in which hearings were concluded on February 10, 1983. Following that decision the applicant union began the present proceedings on April 12, 1983. The allegations made in these proceedings were not raised in the previous application for termination.

2. The evidence that we heard from the union was not long or complicated. Both the union and the employer are in substantial agreement on the material facts. Where they disagree is on the inferences that we, as an administrative tribunal, should draw from these facts. This is not a situation where section 89(5) of the Labour Relations Act applies. There is no onus on the employer to disprove the assumption that its conduct is unlawful. The onus is on the union to prove its allegations on the balance of probabilities. It is not for this Board to make assumptions which the employer must disprove.

3. The union sought to show a pattern of unlawful anti-union conduct by the employer through a series of events stretching back almost to January, 1982. the month in which a first collective agreement was signed following a six month strike. The culminating incident to the pattern was the use by the employer of employees from its non-union operations on Hannah Street in Toronto (the "Hannah Plant") to assemble out(loor gas barbecues at the North Queen Plant. On January 12, 1983 (while hearings were still proceeding before the Board on the application for termination) the employer advised the union that it had substantial orders for barbecue units for the summer season and wished to assemble them at the Hannah Plant. There was insufficient work at the Hannah Plant and the alternative would be to lay-off employees at that location. The union took the position that the work had to be performed at the North Queen Plant. The employer took the position that it could do the work at the Hannah Plant if it wished.

4. Alex Muselius, a staff representative for the union, gave evidence. He testified that:

(a) he knew employees from the Hannah Plant were working at the North Queen Plant in January, 1983;

(b) at a meeting on January 12, 1983 the wage rates of the Hannah Plant employees were discussed between the employer and the union.

(c) temporary transfers of employees between the two plants was specifically allowed by the collective agreement and such employees transferred from the Hannah Plant to the North Queen Plant would maintain their higher rate.

(d) many employees at the Hannah Plant had wage rates in excess of what was in the collective agreement. In the collective agreement those employees were "red-circled" i.e., they received the higher of the negotiated rates or their present rate plus 13%.

(e) shortly after the signing of the collective agreement the employ­ees at the Hannah Plant received a 14% wage increase and a superior sick pay plan. When asked if the Hannah Plant employees did the same work as the North Queen employees, Mr. Muselius replied that it varies from the work done at North Queen the products are toys and small items and he did not have first hand knowledge;

(f) the parties are discussing wages, sick pay, maternity leave, and a dental and hospital plan in the current negotiations for a new collective agreement; and

(g) there is no part-time unit at the North Queen Plant and part time workers are excluded from the bargaining unit; (Mr. Hayes then advised that the union's position was that part-time workers were covered by the scope clause in the collective agreement.)

5. As part of their finding of a pattern of illegal activity my colleagues rely on the facts that:

(a) the employer may have hired temporary employees from an agency in violation of the collective agreement; and

(b) the employer may have contracted out work in violation of settlement dated June 15, 1982 (Exhibit 2). I use the word "may" in both instances because when the pattern is examined it is readily apparent that there are bona tide arguments on both sides as to whether or not the hiring of temporary employees or contracting out is allowed. These are issues quite separate from the necessary illegal intent required by the Labour Relations Act.

6. The union filed a grievance over union dues that had not been remitted for the temporary employees. That grievance was settled. The only facts from which any inference can be drawn are that temporary employees were used as required by the employer. The need for, and the use of such temporary employees obviously continues, as is clear from the use of the Hannah Plant employees to temporarily assemble the barbecue units. We heard evidence that the Hannah Plant employees were moved in and out of the North Queen Plant on an "as needed" basis and the union had great difficulty in keeping track of how long they stayed at the North Queen Plant. Union dues were remitted for the Hannah Plant employees working at the North Queen Plant.

7. With respect to contracting out there was a polar split between the parties as to the interpretation of the June 15, 1982 memorandum of settlement. Mr. Muselius testified that the union felt the agreement was in full force and the employer's position was that it no longer applied. My colleagues take an arbitrable difference of long standing and turn it into an unfair labour practice. On examination of Exhibit 2, 1 find there is indeed a valid argument that the settlement was intended only to apply with respect to those employees who were on lay-off in June, 1982. There are no employees on lay-off with recall rights at the North Queen Plant now. Rather, at the hearing, the union argued that new permanent" employees should be hired at North Queen to do the work that was contracted out.

8. Exhibit 5 is a list of 101 bargaining unit employees at the North Queen Plant during the period January 4, 1983 to February 19, 1983, (i.e. prior to the Board decision ordering a vote). It contains the job classification and wage rate for each employee. It contains the seniority date for 52 employees. With respect of Exhibit 5, Mr. Muselius said that:

(a) employees numbered 48 to 53 were newly hired persons on probation. They received the contract rate and had no seniority date because they were on probation;

(b) if a Hannah Plant employee was transferred to a permanent position at the North Queen Plant, he or she would get their full earned company-wide seniority after the probationary period was over. Employees numbered 21 and 43 were transferred from the Hannah Plant to the North Queen Plant in October, 1982. They kept their company-wide seniority, but their wages were reduced to the base rate for their classification under the collective agreement;

(c) the collective agreement allowed temporary transfers from the Hannah Plant to the North Queen Plant at the employees' normal wage rate. Employees numbered 55 to 97 were Hannah Plant employees transferred to the North Queen Plant. They were paid their Hannah Plant rate and have no seniority shown vis-a-vis the North Queen Plant employees.

9. My colleagues use Exhibit 5 to infer that the employer is guilty of discriminatory conduct. By my count there are 54 permanent employees at the North Queen Plant shown on that exhibit:— there are 29 different wage rates amongst them and 21 of them are earning more than what their wage rate should be pursuant to the collective agreement, i.e. there are 21 "red-circled" employees out of 54. If there is anything that can be inferred it is that the employer treated employees numbered 21 and 43 as permanent employees at the North Queen Plant and employees numbered 55 to 97 as temporary employees at North Queen. Employees numbered 21 and 43 received rates as new employees at North Queen. Employees numbered 55 to 97 were treated as if they were still Hannah Plant employees. If they had not been so treated the employer could be accused of "padding the list" in preparation for a possible decertification vote.

10. Exhibits 5 and 7 indicate that employees from the Hannah Plant in the following wage classifications were used at the North Queen Plant:

No. of employees:

Assembler: 58

Material Handler: 1

Quality Control Inspector: 4

Their wage rates were as follows:

Assembler: 27 different hourly wage rates ranging from a low of $4.22 to a high of $5.99

Material handler: $6.50/hr.;

Quality control inspector: S4.99/hr.; $5.12/hr. :$5.40/hr.; $5.64/hr.

11. Of the North Queen Plant employees on Exhibit S there are four assemblers:

Number Wage Rate/hr.

14 $3.70 21 3.70 42 3.96 43 3.70

(Number 21 and number 43 are employees permanently transferred from the Hannah Plant in 1982.)

There are no North Queen material handlers on Exhibit 5, but there is one quality control inspector (number 15) and he is paid $4.90 per hour.

12. To reiterate, we do not know what kind of work the assemblers do at the Hannah Plant nor do we know what the wage differential was between the two groups of employees before their most recent increases. What we do have is the answer that Mr. Muselius gave in answer to a question by the Vice-Chairman: he was asked if there was wage parity in the two plants and he answered that Hannah Plant employees were paid more both before and after the collective agreement, but it was very hard to sort out because there were a lot of rates.

13. Counsel for the employer submitted that the employer was in a "no-win" situation when it obtained the orders for a large number of barbecues. It felt that it could assemble the units at the Hannah Plant but it did not wish to influence the possible vote by the employer at the North Queen Plant. When the union refused to agree to the work being done at the Hannah Plant the employer decided to use Hannah Plant employees as it was entitled under the collective agreement. This would also keep Hannah Plant employees from being laid off. The Hannah Plant employees were treated as temporary and were paid their normal wage rate. If it had cut their wage rates and told the employees that it was what the union bargained for, "the employer would have been before this Board SO fast it wouldn't be funny". Wages above the base rate at the North Queen Plant are the norm rather than the exception because of "red-circling". The union knew of the wage rates paid to the temporary employees in January, 1983 but did not object until March. And before the Board the union now argues that the rates should not be lowered, but rather the ballot box should be sealed. In point of fact there are only three assemblers at the North Queen Plant who could possibly be influenced in any way by the wages paid to the employees from the Hannah Plant, two of whom had already taken a pay cut when they moved from Hannah to North Queen. If the employer wanted to "diddle" the North Queen Plant it could move Hannah Plant employees in on a permanent basis, keep them working for three months until they had company-wide seniority, and when the barbecue work was over they would be able to bump out the union members at North Queen. While the decertification proceedings were still taking place, the employer was "damned if it does and damned if it doesn't", save to stop building gas barbecues and "we certainly have business reasons for not doing that."

14. A consideration of the various solutions open to the employer is helpful:

(a) Hire new employees or "strangers" at the North Queen Plant SO as not to have an adverse effect on the union. This would result in the lay-off of employees at the Hannah Plant. Is this how we want an employer to treat its employees'? Is this discrimination against employees because they are not represented by a union; or

(b) Move the Hannah Plant employees to the North Queen Plant as permanent employees and pay them the collective agreement rates. They would be able to vote if this Board ordered a decertification vote. And, after 3 months they would have company-wide seniority at the North Queen Plant. They would be able to bump out those "union employees" at the plant with less seniority should a lay-off occur, i.e. the work on the gas barbecues is finished. The unfair labour practice implications are self-evident; or

(c) Move the Hannah Plant employees to the North Queen Plant as temporary employees but pay them the collective agreement rates. Heaven help the employer if it does this and the union is attempting to organize the Hannah Plant. And, not surprisingly, the union did not request this relief from the Board; or

(d) Move the Hannah Plant employees to the North Queen Plant as temporary employees at their normal wage rates. This has an effect on the union presence at the North Queen Plant, but since only two employees (one assembler and one quality control inspector) might be influenced by the differences in wage rates, the effect is minimal; or

(e) Manufacture the units at the Hannah Plant. This would have the maximum adverse effect on any possible vote; or

(f) Don't manufacture the barbecue units!

15. My colleagues draw adverse inferences from the bare facts that the employees at the North Queen Plant received a 14% wage increase and a better sick pay plan. The problem with that approach is that it is predicated on the assumption that a unionized plant always leads—it is the one that always comes out on top for the benefit of its members. If a non-union plant has better working conditions than that is discrimination per se. Quite apart from the wisdom of this Board making and accepting such an

assumption, 1 can only wonder why the union took over a year to complain to us about this treatment.

16. It may be said by some that when my colleagues draw adverse influences from a settlement and a long-standing arbitrable difference, they are applying the policy of the Board of making adverse inferences whenever there is evidence of an action having an adverse effect on a trade union. If that is so, then an employer is faced with a reverse-onus situation whenever it comes before this Board to answer unfair labour practice charges. A trade union does not even have to prove a prima facie case, it need simply show effect and it is then up to the employer to disprove wrongful intent. Without legislative sanction I find such trial by innuendo to be repugnant. On the same basis, by merely writing this decision I can find myself accused of being anti-union and then having to prove the negative.

17. And if this Board is disposed to draw adverse inferences from evidence of adverse effect it becomes next to impossible for an employer, (which has exercised its rights and played a good game of hardball bargaining), to convince the Board that it has no anti-union motives within the Board's definition of what is unfair. It seems to me that the Board has to accept the adversary system of labour relations or define its concept of labour relations to the community of employers. We use an adversarial test in deciding whether or not to certify a union and then seem to forget that what follows is a struggle between relative bargaining strengths. I don't think the preamble to the Labour Relations Act was intended to allow us to ignore this fact.

18. As part of their remedy my colleagues order the employer to table an offer that is not discriminatory. Based on the evidence we heard about the myriad number of rates and "red-circling" I wonder what offer can be made that is not discriminatory according to their reasoning.

19. When all is taken into account and considered, it seems to me that my colleagues are confusing the effect of a business decision with unlawful intent. The union, has failed to prove the necessary intent to commit the unlawful labour practices alleged. And what it has great difficulty in obtaining at the bargaining table, it now seeks to obtain by order of this Board. I would dismiss this application by the union, and order the vote be counted.