Labourers' International Union of North America v. C. E. Lummus Canada Ltd.

[1983] OLRB Rep. October 1688

0850-83-U Labourers' International Union of North America, Ontario Provincial District Council and Labourers' International Union of North America, Local 597, Complainant, v. C. E. Lummus Canada Ltd., Respondent, v. Labour Relations Bureau of the Ontario General Contractors Association, Intervener.

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. Wilson and C. A. Ballentine.

APPEARANCES: David Strang, Bill Fairservice and D. Little for the applicant; R. C. Filion, C. McClelland, T Ervin and K. Pierce for the respondent; Bruce Binning and Jim Thomson for the intervener.

DECISION OF THE BOARD; October 17, 1983

1. This is a complaint under section 89 of the Labour Relations Act, alleging that the respondent employer, in attempting to have the members of the applicant work under terms and conditions less favourable than their provincial collective agreement, has violated sections 64, 66(a), 67, 72, 75 and 146(2) of the Act. The intervener represents the employer bargaining agency for the instant provincial agreement, and appeared without objection on the section 146(2) issue to protect, as it said, its provincial agreement.

2. The project at which the dispute arose is a nuclear reactor facility under construction in Port Hope for Eldorado Resources Limited. Another branch of the project is currently under way at Blind River. The respondent Lummus is the prime contractor at both locations. As background to the dispute, it appears that Lummus and the owner, Eldorado, had for some time in 1983 been discussing the cost overruns being projected for the job. The major work on the project had, by this point in time, become pipefitting, and Ken Pierce, the respondent's Construction Manager, testified that the cost overruns were in the main attributed to a decline in productivity from the pipefitters and pipefitter-welders on the job. This group made up roughly one-half of all of the tradesmen employed on the site at this point in time. The Pipefitters' collective agreement called for a 36-hour work week, composed of 8-hour shifts Monday to Thursday, and a four-hour shift on Friday. Lummus attributed the decline in the pipefitters' productivity to the very high rate of absenteeism amongst pipefitters and welders being experienced on Fridays, together with the overall low morale caused by a number of factors, including a change in methods of payment under the most-recently negotiated provincial agreement. It is not clear whether the Pipefitters' discontent was limited to the Friday work, but it is clear that they, as a group, were deliberately slowing the job down. By mid-May of this year the productivity of the pipefitting group had dropped to 25 per cent of Lummus' initial projections for the job, from a level of 120 per cent in January of the same year. The cost overruns projected from these figures were of major proportions and the owner, Eldorado, made it clear that it was not prepared to tolerate them. The evidence is that Eldorado at that point told Lummus it could have one more month to "turn things around", or the prime contract would be terminated and Lummus would be removed from the job site.

3. From that point Lummus began exploring with Eldorado various alternatives for bringing the project back within tolerable projections. Lummus' activities included a number of meetings with the Pipefitters' chief spokesman in Canada, Mr. St. Eloi. Out of these meetings came a suggestion, apparently from Mr. St. Eloi, that the members of the Pipefitters' Union work their 36-hour week on the basis of four nine-hour days, thus eliminating the problem of Fridays altogether. The ninth hour in each day would be paid on a straight-time basis. The employees' position on other benefits, it was suggested, could be maintained by Lummus agreeing to pay the normal 5 days' travel allowance for 4 days' work. Subsequent to the meeting, Lummus and Eldorado began discussing between themselves the various ways of implementing this suggestion with the other trades. One possibility was to pay for the ninth hour in each day on a premium basis as the various trades' collective agreements called for. The other alternative was to approach these other unions and see if they would agree to the same arrangement as the Pipefitters, i.e., making up the extra hours each day on a straight-time basis. It was decided that this latter was the alternative which Lummus would follow.

4. Lummus accordingly convened a meeting of all of its stewards on June 22, 1983, and explained to them what it was that was being considered. Lummus told the stewards that a number of craftsmen had approached it about going to a four-day week, and that it wanted to know how the rest of the trades on the job felt about it. It suggested that the stewards accordingly poll their members on the job to ascertain their wishes. Lummus also suggested that it might be best if this were done in writing, and offered the services of Ms. Bembenek, a clerk in the Personnel office, if anyone had a problem with the drafting.

5. Mr. Don Little, the complainant's steward on the job and a member of the Union s Executive Board, testified that he went to Ms. Bembenek to have a petition drafted up, and then proceeded to canvass his members on the job. He testified that he was not personally in favour of the change in hours but felt it was proper to give the men their say. He says he did not feel he was under any compulsion to carry out the poll, and concedes that he could have consulted his Business Manager as well. He says he did not do so at that point because he felt he had nothing to report; he knew a meeting between the company and the Business Managers was being set up, and he did not know yet whether there was any support amongst his members for a change. Mr. Ervin, the Labour Relations Manager for Lummus, met Mr. Little in the time office a few days later and Mr. Ervin asked him how the canvass was. going. Mr. Little replied that all of the Labourers but two had signed the sheet. Mr. Ervin asked him if he was going to turn the sheet in, and Mr. Little said that he would see what he could do about the other two signatures. Mr. Little was never again asked to turn in the sheet.

6. On June 29th the meeting with the Business Managers took place. Unfortunately for Lummus, the Business Manager for the Pipefitters was not able to attend. Some of the other Business Managers expressed concern that they had not been consulted earlier, and that representatives of the appropriate provincial bargaining agencies had not been contacted. In any event, the meeting concluded with virtually unanimous rejection of the company's proposal. The final portions of the published Minutes of the meetings state as follows:

The LCI personnel then left the meeting to allow time for the BA's to discuss the proposal. The outcome was that eight Unions out of nine would live by their agreements. It was pointed out by the BA's that they felt the matter had been approached in the wrong way and they should have been involved earlier as any amendments to their Collective Agreements must go through proper channels. Mr. Ervin explained that, in this instance, it was the individual employees who were seeking the change.

Mr. Pierce advised that split shifting would now be considered with the UA, Boilermakers, Sheetmetal workers and Insulators working a 4 day week. The other trades could be left as they were, although Supervision and work planning would be a problem.

Mr. Ervin said that as the majority of BA's did not agree with the proposal a meeting would be held with the Stewards to explain the situation.

Mr. Pierce testified that the only other development at this point was that over lunch and cocktails following the meeting, certain of the Business Managers (these were not identified) began to indicate a more flexible attitude towards Lummus' proposal. Mr. Pierce reported all of the morning's events to Mr. Zimmerman at Blind River, and Mr. Zimmerman expressed his disappointment that support for the proposal (which had apparently been put into effect at Blind River) had not been more clear-cut. A commitment to the nine-hour day proposal had still not been received from the local Business Manager of the Pipefitters, however, and the two men agreed that a decision on the matter would be put off for the time being.

7. The next morning Mr. Pierce convened a meeting of the job stewards to report to them the result of the Business Managers' meeting. He indicated that the majority of the Business Managers had not been in favour of the proposal, and that the change would be implemented for the time being on a piecemeal basis only, pending a decision by Eldorado on whether the site would be closed on Fridays. By mid-day, however, the commitment of the Pipefitters' Business Manager to the new arrangement was finally obtained in writing, and Mr. Pierce contacted Mr. Zimmerman by telephone in Blind River to report that. Mr. Pierce testified that he and Mr. Zimmerman discussed how it would affect the job to have different hours scheduled for different trades, and how it would hurt them to have no hours scheduled on Friday (against the fixed costs of having to keep the site open for a fifth day). At the end of the discussion, Mr. Zimmerman made the decision to close on Fridays, and instructed Mr. Pierce to do so. He followed up his oral instruction by having the following letter signed and delivered to Mr. Pierce on Monday.

July 4, 1983

710: K. R. PIERCE

FROM: W. K. ZIMMERMAN

SUBJECT: Cancellation of Friday Construction Work at the Port Hope Construction Site

As discussed with you today E.R.L. cannot continue to absorb additional costs on this project. Therefore, due to the fact that the majority of the craftsmen on the project site are now working extended hours 4 days a week, you are hereby instructed that the jobsite shall remain closed on Fridays until further notice.

Meanwhile, Lummus had, pursuant to the oral instruction on Friday afternoon, posted the following notice:

To: All Employees

From: K. R. Pierce

Subject: 4 DAY WORK WEEK

Effective July 4, 1983, this job site will be scheduled for a four (4) day work week. Pipefitters, insulators, sheet metal workers, boilermakers and painters will be working extended hours on the 4 days to complete a standard work week in accordance with our agreement. Other crafts will be working 4 eight hour days unless some agreement is reached to the contrary.

This alteration to working hours has been made at the request of and with the agreement of the majority of crafts on site. Our Client has dictated that the job site be closed on Fridays. The hours of work shall be:

(a) Crafts working 4 eights shall work 7:30 a.m. until 4:00 p.m.

(b) Crafts working extended hours shall begin work at 7:00 a.m. and work until the completion of shift.

Pipefitters, sheetmetal workers, insulators shall work 9 hours per day; boilermakers and painters shall work 9-1/2 hours Monday, Tuesday & Wednesday and 9 hours on Thursday.

Lunch and break times shall remain as per the present arrangement, i.e., lunch at 11:30 a.m. and breaks at 9:30 a.m. and 2:00 p.m.

8. Mr. Pierce testified that by Friday, July 8th, only the Labourers, Electricians, Millwrights and Teamsters had declined to accept the company's proposal for extended hours on a four-day week. The evidence is that those members of the Labourers' Union normally scheduled to work the Friday showed up on July 8th, even though they knew that no work would be afforded them. This was done, Mr. Little testified, simply to "prove the lockout". The Labourers have, since the week of July 4th, been working only 8 hours a day, for the 4 days the site is open. Mr. Pierce acknowledged to the Labourers' counsel in cross-examination that the 9th or 10th hour is available to members of the union on each day, "but not on an overtime basis". The Millwrights and Teamsters apparently have subsequently accepted the company's offer, leaving only the Labourers and Electricians as hold-outs. Both of those unions filed lockout complaints with the Board, the Labourers' being the present one. The evidence of Mr. Little is that he attends at the job site to observe what is going on in both the half-hour before his shift and the half-hour after (when the other trades are working) and he observed Lummus supervisors doing cleanup, and, of more significance to him, carpenters doing labourers' work. Mr. Little conceded that the carpenters in his view have always been doing labourers' work, and that he complains to Lummus constantly, but says that the present situation is worse, because "at least at the other times we're there working with them". Mr. Pierce, on this point, agreed with counsel for the employer bargaining agency that, when forms are being worked on during these two half-hours, the difference in work hours has meant that Lummus has altered its normal crew complement of carpenters and labourers. It should be noted that the Labourers' have in fact filed a grievance against Lummus, but have allowed it to remain dormant, pending a hearing of the present application before the Board. That grievance is dated July 13, 1983, and claims that Lummus:

(1) Failed or refused to employ members of the Union to perform all Labourers' work at its Port Hope Job Site on July 7, 1983, and continuing.

(2) Reduced the regular work week of members of the Union employed at its Port Hope Job Site.

(3) Sought and continues to seek by reducing the hours of work of members of the Union to cause the Union to agree to a change in the terms and conditions of employment at its Port Hope Job Site.

(emphasis added)

9. Mr. Strang on behalf of the applicant argues that the foregoing constitutes violations of a number of sections of the Labour Relations Act. He argues, firstly, that in initially seeking to go directly to its employees to effect a change in working conditions, and to attempt to "co-opt" the Union's steward to assist it in doing so, Lummus violated section 64 of the Act. Section 64 provides:

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.

The Board ruled orally at the hearing that the evidence did not disclose any undue pressure on the job stewards, who had been approached as a group, on this extensive project, so as to constitute a violation of section 64. The Labourers' steward acknowledged that he felt perfectly free to refuse to poll his members, or to consult with his Business Manager in advance, and the Board in the particular circumstances of this case, does not find the employer's mode of contact with the union, through its steward on the site, to have been improper.

10. Counsel further argues that the respondent's conduct is a breach of section 66(a), and in so doing ties this section in with his reliance on sections 72 and 75 of the Act. The sections read:

11. 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...

72.(l) Where a collective agreement is in operation, no employee bound by the agreement shall strike and no employer bound by the agreement shall lock out such an employee.

(3) No employee shall threaten an unlawful strike and no employer shall threaten an unlawful lock-out of an employee.

75. No employer or employers' organization shall call or authorize or threaten to call or authorize an unlawful lock-out and no officer, official or agent of an employer or employers' organization shall counsel, procure, support or encourage an unlawful lock-out or threaten an unlawful lock-out.

Counsel concedes that the collective agreement contains no guarantee of hours per week, but points to Mr. Pierce's acknowledgement that the make-up hours continued to be available on Monday through Thursday, if only the union were to agree to waive the provisions of the collective agreement. Under section 66(a), counsel argues that this is a "refusal to employ" in order to cause employees to refrain from exercising their rights under the Act, namely, their right to insist that the provisions negotiated into their collective agreement be adhered to. But more particularly, counsel argues that the actions of Lummus constitute a lockout. "Lock-out" is defined in the Act as follows:

"Lock-out" includes the closing of a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of his employees, with a view to compel or induce his employees, or to aid another employer to compel or induce his employees, to refrain from exercising any rights or privileges under this Act or to agree to provisions or changes in provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, an employers' organization, the trade union, or the employees.

When the employer has 40 hours of work available, counsel argues, but says to the employees and their union, "You're only going to get 32 hours until you agree to a change in your agreement", that's a lockout.

11. The point raised is a difficult one. Given the definition of "lock-out", an employer who speaks during the term of a collective agreement of the need for concessions as a condition of further employment must be mindful of the basic structure of our Labour Relations Act. During the term of a collective agreement, an employer is not entitled to simply say, "I want a better deal, and I'm not going to continue to use your services, or part of your services, until I get it". That is prohibited as an untimely "lock-out", just as the opposite conduct on the part of employees and a trade union is prohibited as a "strike". On the other hand, an employer may, from time to time, find himself in a position where economic necessity has raised the spectre of management decisions which will significantly impact on the employment opportunities of his employees. In such circumstances, it would seem to make labour relations sense to permit the employer to invite the bargaining agent to engage in meaningful discussion designed to avoid or minimize such impact, and indeed, this has been a main theme of the Board's "bargaining in bad faith" cases in recent times. Compare Westinghouse Canada Limited, [1980] OLRB Rep. April 577; Sunnycrest Nursing Home, [1982] OLRB Rep. Feb. 261; and Consolidated Bathurst, [1983] OLRB Rep. Sept. 1411. The Board's interpretation of the law ought not simply to deny the employees, through their trade union, (or employee bargaining agency, as the case may be) this opportunity for input in every case where the problem comes to a head during the term of the collective agreement itself. But, as noted, a fundamental prohibition exists against "lock-outs" or threatened "lock-outs" during the term of the collective agreement, just as it does for "strikes", and the Board must be scrupulous in its analysis of each case, lest a plea of "economic circumstance" be used to mask an attempt simply to obtain better terms and conditions than have been agreed upon in the collective agreement. The Board recognizes that the issue of "economic necessity" can be a complex one, making a judgment on the employer's true motivation difficult; but the Board cannot shy away from making such judgments, if employees through their bargaining agent are to be permitted an opportunity to exercise some degree of control over their economic lives, on the one hand, and the identification and control of unfair labour practices, engaged in under a cloak of "economic necessity", is to be achieved on the other.

12. As important as this issue is, Canadian jurisprudence on it has, to date, been sparse. The Alberta Labour Relations Board has, however, had some recent experience with it, most notably in the case of Hotel and Restaurant Employees and Bartenders, Local 47 v. Royal Canadian Legion, 83 CLLC ¶16,013. There the Board summarized the essential facts as follows, at page 14,123:

At that "Union" meeting we find as fact that the employees were told that the Legion was losing money and there would have to be a roll-back or the Legion would have to implement self-service with an understanding by all that the implementation of self-service would cause lay-offs. It was also represented to the employees that the Legion could not live with the 12% increase and if a roll-back was not accepted, self-service would be implemented. At that meeting a substantial number of the employees, quite possibly a majority were in favour of a roll-back, and Local 47 later refused to accept the proposed roll-back.

and continued at page 14,125:

... The members [of the Legion] were informed that the attempt to obtain a roll-back had been unsuccessful and that henceforward the provisions of the agreement with respect to wages would be followed. In passing the resolution at that meeting to "back the Executive 100% in their proposition to go to self-service in order to maintain current costs to membership" the membership did so having accepted that there would not now be a roll-back. Having accepted there would not be a roll-back, the Legion made a decision to implement partial self-service in the Lounge and Canteen. That was a legitimate business decision.

On the basis of those conclusions, the Board found no "lock-out" to have taken place.

13. While the definition of "lock-out" has been considered in this province many times, our own Board has not had to deal with the issue of concessions in precisely this context. The issue did arise, however, in an unreported arbitration decision, Midland Professional Firefighters Association v. Town of Midland, (Prichard), released October 19, 1982. There the trade union accused the Town of engaging in an unlawful lock-out when, during the term of the collective agreement the Town, after expressing its concern over the richness of the most recently-negotiated salary increase, and inviting a trade-union response, laid off two members of the force. After framing the issue in terms of bona fide economic necessity, the arbitrator made his essential finding of fact that "[the Town official's] inquiry about a possible wage roll-back was borne of his genuine desire to avoid layoffs and not of a desire to coerce the firefighters". In his concluding remarks he then observed:

"In dismissing the grievance, I hope I have made clear that so long as the parties approach the matter in a good faith, the collective agreement and the law of labour relations do not create a bar to mutually beneficial discussions aimed at adjusting to changed economic circumstances."

14. Westinghouse Canada Limited, supra, was itself a case where the employer was found to have unlawfully acted, during the term of a collective agreement, and without ever having raised the matter for response by the trade union, "to remove itself from the collective bargaining relationship". But, having made that finding, the Board went on to consider, at paragraph 65:

... What of the employer who, faced with an economic crisis caused by collective-bargaining related factors, seeks relief from the union and is met with an unsympathetic or unsatisfactory response? Assuming that these factors could be established, the answer is by no means clear. The question, however, is not raised by the facts of this case.

15. The question is, however, raised in general terms by the facts of this case. Counsel for the employer argues that Lummus at all times acted with no choice in the matter, whether put in terms of the dictates of its client, or in terms of the economic turnaround which Lummus had to make to retain its presence on the job site. Either way, counsel argues, the situation arose solely as a matter of economic reality. Counsel points out that the closure of the site on Fridays became a fact as of June30th, and that no one has taken the position that an owner lacks the right to dictate the hours of access to his job site. With the Friday work gone then, was it really an unfair labour practice, counsel asks, for Lummus to have approached the trade unions and offered them the opportunity to make up the hours Monday through Thursday on the only basis that it was felt the project could afford i.e., with an alteration to the collective agreement?

16. On the facts of this case, the Board must conclude that it was. That the dissatisfaction of the Pipefitters, and their consequent job action, was at the root of the present prob1cm is beyond doubt. Nor do we doubt that that action was creating real economic problems for the job. But an employer, and especially a multi-trade construction employer, cannot select its response to such action without being mindful of its impact on the other groups of employees with whom it has contractual relations. Nor can pressure from an owner/client to cut costs, by itself, provide justification for attempting to do so in an unlawful way, if the Board finds the requisite motive for a "lock-out" still to exist. Here the employer, Lummus, clearly was mindful of the implications for the other trades, but it is its response to that situation which causes the Board concern. The Pipefitters' agreement meant that to maintain existing crew complements and construction levels, the other trades on the job would have to be put on 9-hour days as well. But both Lummus and Eldorado knew that the nine-hour day would attract overtime premiums under the other collective agreements on the site. That would have built back in much of the costs sought to be saved by the Friday closing, and was not an option that Lummus and the owner were willing to consider (particularly after they had just obtained a deal with the Pipefitters to work the make-up hours at straight time). On all of the evidence, the conclusion is inescapable that Lummus and the owner were banking on getting, one way or another, the agreement of at least the bulk of the other trades to the arrangement worked out with the Pipefitters. Having tried to obtain that agreement voluntarily, and failed, it appears to us that Lummus and Eldorado decided, the moment they had the Pipefitters' commitment in writing, to proceed with the closing on the calculated basis that the act of taking away the hours on Friday (and the refusal to pay overtime) would generate sufficient pressure to cause the other trades to fall in line; i.e., the other trades would agree to make up the hours on a straight-time basis. The ultimate response of the great majority of the trades bears out that thinking. Lummus states that it at all times was prepared to live with the possibility of the Labourers refusing to work the extended 4-day hours. Whether it did in fact live with that situation within the work-assignment provisions of its collective agreement would only be determined by litigation of the Labourers'. grievance. But whether or not Lummus was prepared to live with that eventuality, it was patently to its advantage to bring as many of the trades as possible into line with its Pipefitter arrangement, and in drafting its Notice of June 30th, it clearly had decided to pursue that end. The Notice began, once again:

Effective July 4, 1983, this job site will be scheduled for a four (4) day work week. Pipefitters, insulators, sheet metal workers, boilermakers and painters will be working extended hours on the 4 days to complete a standard work week in accordance with our agreement. Other crafts will be working 4 eight hour days unless some agreement is reached to the contrary.

(emphasis added)

That invitation, together with all of the circumstances under which Lummus had approached the other trades, leaves no doubt in our minds that Lummus was aiming toward the goal of having all trades adopt a work week that was in line with the Pipefitters', without the necessity of having to pay overtime under the respective collective agreements.

17. The foregoing recital of the facts also makes it clear that the actions of the owner cannot, for purposes of the developments material here, be separated from those of the employer, Lummus, and the fact that the actual direction to close on Friday came ultimately from the hand of the owner is not, in the circumstances, determinative. In terms of deciding upon a specific course of action in response to the "Pipefitter" problem, it is evident that Eldorado was at all material times acting in concert with, and to a large degree on the advice of, Lummus. The two were not entitled to voluntarily enter into an agreement with the Pipefitters (lawful or otherwise) and then rely upon that agreement as part of the de facto justification for what would otherwise be a "lock-out" under the Act. The closure on Friday was a direct result of the agreement negotiated with the major trade union on the job site, and neither of those events can, in the circumstances of this case, be attributed to wholly external forces. The Board in the result finds that Lummus, when it followed through on its June 30th notice, engaged in an unlawful lock-out of the complainant's members.

18. A further serious problem in this case is that arising under section 146 of the Act, dealing with the special status of province-wide bargaining in the industrial, commercial and institutional sector of the construction industry. That section provides:

146.-(l) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.

(2) On and after the 30th day of April, 1978 and subject to sections 139 and 145, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void.

(emphasis added)

It is obvious that the enactment of any scheme of province-wide bargaining involves a complex series of "trade-offs", with substantial impact upon those interests which the Legislature finds must be subservient. Once the Legislature has made that assessment, it is up to the Labour Board to effectuate the purposes of the Act. For that reason, the Board has stated from the outset of this piece of legislation that it will not be restrictive in its interpretative approach when called upon to deal with a "mischief" section like 146(2). See, e.g., Sikora Mechanical, [1982] OLRB Rep. June 941.

19. Counsel for Lummus concedes that the word "arrangement" in subsection 146(2) substantially broadens the section, but argues that the present case does not involve the sort of "mischief" that the section was directed at. The Board, to the contrary, finds that this is precisely the sort of local "private" deal that section 146(2) is aimed at, whether during or after negotiations, or before or after a job is bid, and the concern of the employer bargaining agency in these proceedings tends to confirm that. It is not in dispute that what Lummus was seeking was a variation from the provincial agreement. Whatever the economic circumstances, an employer under the regime of province-wide bargaining simply cannot attempt to "cut his own deal", even for a single project. The Board is not unmindful of the practical difficulties which may arise for an individual contractor in seeking to work out a special arrangement through the offices of the employer and employee bargaining agencies; but that is how, under the terms of this legislation, it clearly must be done. There is no evidence whatever that that is what the respondent had in mind in the present case. The Board accordingly finds the respondent Lummus to have acted in violation of section 146(2) of the Labour Relations Act, which makes it an offence to even attempt to work out a separate arrangement.

20. The Board accordingly declares that the respondent, Lummus, has violated section 146(2) of the Labour Relations Act, and directs it to cease and desist from attempting in any way to bargain for, or conclude any arrangement inconsistent with the complainant's provincial agreement, other than through the medium of the designated employer and employee bargaining agencies.

21. The Board further declares that Lummus has engaged in a lock-out of the members of the complainant at the Port Hope job site, in contravention of sections 72 and 75 of the Labour Relations Act.

22. All parties are of course aware that the Board in File No. 0942-83-U, in a decision issued September 28,1983, has made a similar determination of a lock-out in response to the complaint of the IBEW over these same events. That decision concluded as follows:

"The complainant has asked for damages in respect of this lock-out, and we are of the view that they are entitled to such relief. We remain seized of this matter in the event that the parties are unable to agree on the quantum of damages herein."

The Board in the present case as well finds that damages will flow from the respondent's unlawful lock-out. But, in line with the other case, the Board leaves the matter of damages to be dealt with initially by the parties. The Board will remain seized of the complaint in the event that the parties are unable to reach agreement on that issue.