Mauri Ahokas et al. v. The Canadian Union of Public Employees, Local 87 et al., 1984 CanLII 985

Ontario Labour Relations Board

[1984] OLRB Rep. May 759

1800-81-U; 1971-82-R Mauri Ahokas and 75 other employees, v. The Canadian Union of Public Employees, Local 87, Canadian Union of Public Employees, Grace Hart-man, C. LeBel, Eileen Okerlund, William McFarlane, Gloria Welch, Arlene Parker and Eileen Rice, Respondents; The Municipal Technicians Association of the City of Thunder Bay, Applicant, v. The Corporation of the City of Thunder Bay, Respond­ent, v. Canadian Union of Public Employees, Local 87, Intervener

BEFORE: M. G. Picher, Vice-Chairman, and Board Members J. A. Ronson and W. F Rutherford.

APPEARANCES: F I. W Bickford for the complainant and applicant; S. R. Hennessy for the respondent union and intervener.

DECISION OF M. G. RICHER, VICE-CHAIRMAN AND BOARD MEMBER W. F. RUTHERFORD; May 4, 1984

1. By its decision dated May 31, 1983, reported at [1983] OLRB Rep. May 781, the Board determined that the respondent trade union in the section 68 complaint violated the duty of fair representation. We remained seized for the purpose of hearing further submissions with respect to the issue of remedy, reserving the right to deal with outstanding issues in respect of the application for certification as part of the same proceedings. To that end a further hear­ing was held in Thunder Bay at the which the parties to both the section 68 complaint and the application for certification made full submissions on all issues then outstanding. Those issues are the remedy appropriate to redress the violation of section 68 by the respondent union and the merits of the application for certification, having particular regard to the composition of the bargaining unit. As our earlier decisions have noted, the employees, some 76 in num­ber, who were complainants in the section 68 proceedings have formed a separate employees' association representing technical and professional employees employed by the City. Their ap­plication for certification seeks to allow them to break away from the existing bargaining unit of inside municipal employees.

2. At the hearing devoted to the outstanding issues the respondent union sought to ad­duce evidence relating to the content of a collective agreement concluded since the complaint was filed as well as relating to the newly constituted executive. The purpose of its evidence was to establish that there has been a change of individuals responsible for bargaining on be­half of the unit of inside employees. Counsel for the complainant employees objected to the admission of that evidence, and his objection was overruled. During the hearing of the com­plaint we proceeded on the understanding that initially evidence and argument would be ad­duced going solely to the issue of the merits of whether there had been a violation of the duty of fair representation. It was understood that we would remain seized of the larger issue of the remedy, and the parties marshalled their evidence pursuant to that understanding. In our view it would be manifestly unfair to now prevent the union from adducing evidence which could establish some mitigation of the damage to the complainants or a bona fide attempt by the respondent union to make adjustments with a view to protecting them in the future. Labour relations realities are not frozen on the date of a given complaint. It is well established that the Board will, in any section 89 complaint, consider the conduct of the parties both before and after a complaint has been filed with a view to fashioning the most appropriate remedial response. A union could not, for example, object to the admission of evidence establishing that employees discharged for anti-union animus have been reinstated by the employer since the complaint was filed. Developments of that kind are significant facts which the Board can and should take into account in the overall determination of a remedy. For the foregoing rea­sons the Board allowed the union to adduce the evidence which it proposed to call.

3. Counsel for the complainants then indicated that he wished to call evidence to es­tablish what he alleged was a recent violation of the duty of fair representation against a tech­nical employee, Mr. William Kuzik. It appears that Mr. Kuzik was unsuccessful in an application for local union funds to attend a CUPE conference in Toronto. It is alleged that the person sent to the conference by the local was less directly involved in technical and professional matters than Mr. Kuzik and was selected as a result of discrimination or bad faith.

4. For several reasons, we declined to allow that evidence to be adduced. Firstly, Mr. Kuzik is not and never has been a complainant in these proceedings. As the evidence estab­lishes, he remained active in the respondent union, retaining an executive office as part of the bargaining committee well after the split between the respondent union and the employees rep­resented by Mr. Roy and Mr. Zapior. Secondly, and more importantly, as the Board noted in its earlier decision the duty of fair representation relates to the representation of individual bargaining unit members in their relations with their employer. It does not involve scrutiny of the political give and take internal to a union, save in the narrow exception where union conduct may involve intimidation and coercion in violation of specific provisions of the La­bour Relations Act. In the principal hearing the Board specifically overruled the attempt of counsel for the complainants to adduce evidence with respect to alleged irregularities in the allocation of funds for a union convention in Winnipeg. See The Corporation of the City of Thunder Bay, [1983] OLRB Rep. May 781 at 811-12. For the same reasons we declined to hear the additional evidence respecting Mr. Kuzik, who is not a complainant in these proceedings.

5. Counsel for the complainants, who are also the members who constitute the ap­plicant in the request for certification, made a number of alternative submissions. Firstly, he maintains that the Board should certify the Municipal Technicians' Association as a separate bargaining unit because of the quality of representation which they have received in the past, the separate community of interest which he maintains they have and, lastly, the aggravated division between the technical and professional employees and the clerical employees arising out of the violation of section 68. Secondly, he seeks damages in relation to the wages which he maintains were lost to the complainants by virtue of the violation of section 68 by the the respondent union. Thirdly, he asks for an order for the payment of legal costs to the com­plainants in the section 89 complaint. Fourthly, he maintains that the complainants should be refunded all dues which they have paid to Local 87 since the date of the complaint, with interest. Finally, and in the alternative, he submits that if the Board does not accept that the existing bargaining unit should be divided in a way that would remove part of it from the hands of the respondent local, the Board should order the local to assign that part of its bar­gaining rights for the technical and professional employees to the applicant association on con­dition that it receive a charter as a local from CUPE's national.

6. Counsel for the complainants stresses the erosion of the differential in wages which has marked the history of the existing bargaining unit, noting that in 1970 the employees in the higher rated categories had a wage differential of 122.5 per cent over the employees, chiefly clerical and secretarial, in the lower rated groups. That margin was reduced to 63 per cent by 1981. He argues that while that does not disclose a violation of section 68 it does support the submission that there has been a marked deficiency in the quality of representation of the technical and professional employees who have felt compelled to form their own as­sociation. Pointing to the efforts of Mr. Roy to explain to the general membership the severity of the ongoing erosion of the position of the higher rated employees, counsel for the com­plainants emphasizes that the respondent union fully appreciated the problems of the higher rated employees and deliberately ignored them. He submits that even though there has been a re-composition of the union executive, majoritarian domination by the clerical employees will continue. In his submission, for that reason there is no reason to believe that the situation will improve in the future. In this regard counsel for the complainants also notes the apparent inability of the respondent national union to correct or substantially influence the course of events within Local 87.

7. With respect to the argument on community of interest, counsel for the applicant association stresses the standards established by the Board's Usarco decision, [1967] OLRB Rep. Sept. 526. He submits that the nature of the work performed by the technical and profes­sional employees, their conditions of employment, their skills, the administrative framework in which they are employed, the geographical location of their employment and their func­tional coherence and inter-dependence all would support the conclusion that they have a sep­arate community of interest from the clerical and secretarial employees. He maintains that the development of new technologies, particularly in the area of computers, has produced a wider gap between the professional employees and those in the clerical ranks, so as to justify still further their separate treatment for the purposes of collective bargaining.

8. Counsel for the applicant association submits that its certification for a separate unit of clerical and professional employees would be the most adequate form of redress for the violation of the duty of fair representation found by the Board to have occurred. He argues that that would be the surest guarantee against the failure of representation which he submits has occurred to date. In the alternative, he maintains that if the Board is not prepared to sever the existing bargaining unit so as to remove it from the hands of the incumbent union, it should order Local 87 to invoke those procedures under the national constitution of the Canadian Union of Public Employees which would permit it to transfer part of its jurisdiction to the applicant association, thereby allowing the association to gain the status of a new local under CUPE, subject to the approval of the national.

9. With respect to the payment of compensation, the first submission of counsel for the complainants is that the Board should order the respondent local to pay to each of the complainant employees the difference between the amount of wages which were adopted by the general membership at its meeting of May 4, 1980 and the higher rate of wages which was then contained in the alternative offer of the City which the Board has found was wrong­fully concealed from the general membership. That is the difference between the wage in­crease across the board of 67C an hour in the first year coupled with 9% in the second year and the more beneficial wage from the standpoint of the higher rated employees, which was the alternative offer of a wage increase of 8-1/2 per cent across the Board in the first year and 9% in the second. Counsel for the complainants maintains that that difference should be the measure of economic redress for the complainants, calculated with interest from January 1, 1980 to the present. Upon questioning from the Board counsel for the complainants in­dicated, as at the date of hearing, that the global sum of compensation payable pursuant to that formula would be approximately $152,000.

10. On behalf of the complainants, counsel also urged the Board to order the payment of legal costs, maintaining that the monies expended to obtain redress before the Board should be paid to the complainants to make them whole. He also submitted that, given the alienation of the complainants from the mainstream of Local 87, which he maintains actively worked against their interests throughout this complaint, they should be refunded all union dues which they have paid from the inception of the complaint.

11. Counsel for the respondent union argues emphatically that there should be no com­pensation paid to the complainants in the instant case. He expresses that there is no basis to conclude that if the violation of the duty of fair representation found by the Board had not occurred that the complainants would have succeeded in having the general membership ratify a collective agreement whose terms would be more favourable to them. Counsel for the re­spondent notes that the general membership had previously discussed the relative merits of percentage increases as opposed to dollars and cents across the board and had given the bar­gaining committee a mandate based on the general rejection of percentage increases in both years of the collective agreement. He also stressed that the parts of the City offer which was not disclosed at the general meeting were subsequently made known by the City in advance of the final ratification meeting. That knowledge made no difference to the outcome. In other words, according to the respondent union, the breach of the duty of fair representation which occurred when the members of the bargaining committee failed to candidly respond to ques­tions from the general membership has not been shown to have caused any real economic loss to any of the complainants. At most, it is submitted, they lost the opportunity to make full argument to the general membership on the merits of the undisclosed alternative offer from the City. Since that formula had already been rejected after full discussion by the general membership, and was not embraced after the City's disclosures, the respondent union main­tains that no causal link is established in the evidence to show that any financial loss has re­sulted to the complainants.

12. Counsel for the union also stresses the more generous provisions of the most recent collective agreement, made after the complaint was filed, as it affects the technical and profes­sional employees. He emphasizes that the present collective agreement contains a wage pro­vision incorporating a sliding scale for wage increases in the initial year, with a substantial extra benefit to the higher rated employees. The second stage of the wage package incorporates a percentage increase across the Board. Counsel for the respondent union submits that both of these wage factors in the new collective agreement represent important gains for the com­plainants and demonstrate the willingness of the local to rectify the wage compression which they have experienced.

13. Counsel also points to the conduct of the complainants themselves as a further basis for denying any compensation. He notes that the actions of Mr. Zapior and Mr. Roy, par­ticularly in their disregard of the mandate of the bargaining committee, contributed to the cli­mate of suspicion which eventually led to the impugned actions of the union's executive. Counsel for the respondent argues that the deliberate withdrawal of Roy and Zapior, as well as the complainants who sympathized with them, from the mainstream of the union contrib­uted in large measure to their own misfortune. He submits that they withdrew from active participation in the local at their own peril, and should not now be heard to complain about their limited involvement in the executive structure over the last two years. Lastly, it was sub­mitted on behalf of the respondent that the delay in the bringing of this complaint, which the Board has found to have occurred between June of 1980 and July of 1981 has not been ad­equately explained by the complainants and was in fact without any justification. Counsel for the respondent submits that to award compensation for that period of time would unduly prej­udice the union.

14. On behalf of the respondent local it was argued that the sole form of redress in this complaint should be an order of the Board requiring the restructuring of the bargaining committee. Counsel for the union notes that the inside employees are fairly evenly distributed across the wage classifications from Group 2 through Group 11. He therefore proposes that the Board fashion an order which would require the respondent local to establish a five-person bargaining committee with one representative to be elected from each of Groups 2 and 3, Groups 4 and 5, Groups 6 and 7, Groups 8 and 9 and Groups 10 and 11 respectively. Ac­cording to counsel for the respondent union that would ensure a representation of the interests of the employees in each level of the wage classifications. More importantly, it would allow the complainants the opportunity to elect their own representative to the bargaining committee from the higher rated wage classifications in which their numbers predominate.

15. We turn to consider the merits of the submissions made to the Board. Of paramount concern is the possibility of severing the existing unit of office and clerical employees, or "inside employees", as they are generally known. In any application for certification it is the obligation of the Board to consider what delineation of employees will be suited to collective bargaining as a group. While the Board has noted that it must not necessarily select the ideal bargaining unit designation, it does strive, insofar as possible, to fashion and preserve the most comprehensive unit of employees which will constitute a viable bargaining structure. The wish for self-determination on the part of a group of employees is a factor to be considered among others, but it is not the determining factor in all cases. (McDonald's Restaurants of Canada Ltd., [1974] OLRB Rep. Oct. 755; Ponderosa Steak House, [1974] OLRB Rep. Nov. 7; Canada Trustco Mortgage Co., [1977] OLRB Rep. June 330 and see also Parnell Foods Ltd, [1969] OLRB Rep. Apr. 38; Stratford General Hospital, [1976] OLRB Rep. Sept. 459.)

16. This is not the first time the Board has been requested by a group of technical and professional employees to give them separate representation for the purposes of collective bar­gaining. In the Stratford General Hospital case (supra) the Board examined at some length the merits of fragmenting bargaining units to accommodate the perceived separate interests of professional and para-professional employees. While that case dealt with technical and profes­sional employees in a hospital setting, the collective bargaining concerns raised in the instant case are not dissimilar. One important difference is that in this case the bargaining structure incorporating the professional and technical employees along with the office and clerical em­ployees has held for a substantial number of years, apparently without serious difficulty prior to the specific circumstances giving rise to this complaint.

17. We are also satisfied that the lines of distinction between the technical employees and the clerical employees in the instant case is, if anything, less significant than the lines which the Board found uncompelling as a basis to separate the various groups of professional and para-professional employees in the hospital setting in the Stratford case. We find it dif­ficult, for example, to distinguish between the senior utilities clerk, who is in charge of col­lecting water bill arrears and is proposed to be included in the unit of technical employees, and the tax clerk, who collects business tax accounts and is sought to be excluded by the applicant. Even where broader distinctions are found, such as between a draftsman and a clerk typist, or between a social worker and a bookkeeper, the Board's overall sense is that they share fundamental employment interests that transcend the differences in their specific duties and responsibilities. Moreover, it is not without significance that the range of employees found in the existing bargaining unit of inside employees were represented together, apparently with­out incident for a substantial number of years, prior to the specific flare up that precipitated this case. In these circumstances the Board would be disposed to disturb the established bar­gaining unit only as a last resort, if it were satisfied that the failure of representation which occurred could not be corrected by some less drastic form of remedial redress.

18. Has there been a fundamental failure to represent the professional and technical em­ployees that would justify the termination of the inside bargaining unit in its present form? In our view, the events giving rise to this complaint and application for certification can fairly be characterized as more of a skirmish than a war, more of a contest of personalities than groups. As we noted in our prior decision the decade between 1970 and 1980 saw some compression of wages in the higher rated categories of employees in the bargaining unit. While the Board does not disregard the impact of that development on the complainant employees, it should be noted that it was the City, and not the employees themselves, that initiated bar­gaining proposals to correct the imbalance. While the initial effort by the City was not suc­cessful, evidence respecting the most recent collective agreement indicates that substantial initiatives have been undertaken to restore the wage differentials in the inside bargaining unit in Thunder Bay to some reasonable comparability to differentials found in other municipalities in the province. In other words, while a tension may have developed over the issue of compression and the initial attempt at corrective action was not successful, the beginnings of a restorative process seems nevertheless to be under way within the framework of the existing bargaining unit.

19. On the whole, the dispute before the Board stems primarily from the conflict be­tween several individuals in relation to one set of events. It is, in other words, a conflict more personal than institutional. Much of the mistrust and misunderstanding which precipitated this complaint originated in the bitter personal conflict between Mr. Roy and Mr. Zapior, on the one hand, and Ms. Rice and Ms. Parker on the other. The evidence now establishes that Ms. Rice and Ms. Parker, whose actions we found to be in breach of the duty of fair represen­tation, no longer hold any union office. While the feud among these individuals did spread its bitterness to others in the bargaining unit, it appears to the Board that the new union ex­ecutive is in a position to heal the old wounds and make a new beginning. We are fortified in that conclusion by the catch-up provisions for the complainant employees reflected in the sliding scale wage formula incorporated into the most recent collective agreement.

20. While the improvements of one agreement may not be conclusive proof that the dissident employees will henceforth get representation more sensitive to their interests, it is a positive indication that the existing wounds can be healed. The collective bargaining proc­ess, including the section 68 complaint, appears to have led to some substantial correction in the wage differential of the higher rated employees in the bargaining unit. The Board is not unmindful that the instant complaint may have been instrumental in redirecting the course of events in a way favourable to the complainant employees. We do not believe that that should be held against the respondent union. Corrective action in the face of a complaint should al­ways be hoped for. That very development is within the scheme of accommodative solutions to disputes contemplated in the provisions of the Labour Relations Act. There is, on the whole, substantial evidence to suggest that the bargaining unit as it is presently constituted can and will function effectively to represent the various interests of the employees within it.

21. Of natural concern for the Board is the viability of a bargaining unit restricted in its membership to technical and professional employees of the City of Thunder Bay. Presently the City bargains with three units of employees, being the inside and the outside work force and the library employees. For the Board to accept the position of the applicant for certifi­cation would create a fourth bargaining unit composed of one segment of inside employees. That unit would be created at the expense of virtually halving the present bargaining strength of the office, technical and clerical employees. The viability of a unit so fragmented is in serious question. Of equal importance, the City would be required to incur the time and ex­pense of a fourth set of negotiations and ongoing relations with yet another bargaining agent as collective agreements are successively renewed.

22. A separate concern is the jeopardy to job mobility inherent in a two unit structure. It is not disputed that a number of the employees characterized by the applicant as technical or professional have no professional training or qualifications, and have themselves been pro­moted through the lower rated clerical ranks to the positions of responsibility which they now hold. The establishing of two different units, with separate seniority lists and protective pro­motion and job posting barriers could substantially reduce the job mobility of numbers of em­ployees in the existing bargaining unit. By the same token, it would limit the flexibility which the employer now has in promoting a broader career path for its inside employees.

23. One final concern is the interest of industrial stability in the operations of a sub­stantial public sector employer. A municipality such as the respondent in this application pro­vides a range of services to the public. Some of the services it provides are critical to local industrial and commercial activity. While these are not legislatively designated as essential services, nevertheless a labour board dealing with municipal bargaining units must be mindful of preserving rational and comprehensive bargaining structure which will conduce to a min­imum of interruptions of service. Doubling the number of bargaining units for the inside workers, with the attendant risk for greater disruptions of service in the event of strikes, raises serious concerns for the general public interest (cf. lnsurance Corporation of British Colum­bia, [1974] 1 C.L.R.B. Rep. 403 (B.C.L.R.B.); B.C. Ferry Corporation, [1977] 1 C.L.R.B. Rep. 526). Uncertainty in respect of the stability of bargaining is further raised by both the recent proliferation of technical and professional specializations, and the already segmented nature of municipal management (see, generally, Adams, "Collective Bargaining by Salaried Professionals" (1977) 32 I.R. 184; Kochan "City Employee Bargaining with a Divided Man­agement" (1971, University of Wisconsin Press) and Simmons "Collective Bargaining at the Municipal Government Level in Canada", (Draft study for the task force on labour relations, Privy Council Office, 1968)).

24. The Board does not view these as attractive alternatives. If we were satisfied that the interests of the complainant employees could not be fairly represented within the context of the larger bargaining unit we would not shrink from adopting the bargaining structure pro­posed by the applicant association. On the whole of the evidence before us, however, we are not satisfied that that formula, fraught as it is with difficulties, is either necessary or appro­priate in the circumstances of this case. We are satisfied that the interests of the technical and professional employees who are complainants in the section 68 complaint can be adequately redressed by a significant remedial order under section 89. We cannot conclude on the ma­terial before us that there has been an overall failure of representation so fundamental that the bargaining unit itself should be permanently dismantled. We are satisfied that the unit as pres­ently constituted remains the unit appropriate for collective bargaining. Given that the mem­bership evidence submitted by the applicant association represents less than forty-five per cent of the existing bargaining unit on the date of the application, the application for certification must be dismissed.

25. We turn to consider the remedy appropriate to redress the violation of section 68 found to have been committed by the respondent union and the members of its executive. We deal firstly with the issue of compensation. The Board finds substantial merit in the submis­sion of counsel for the respondent union that the evidence falls short of establishing any mean­ingful causal link between the wage settlement finally adopted by the union and the actions which we have found to be inconsistent with the duty of fair representation. As noted in the Board's earlier decision on the merits of the complaint, Mr. Roy and Mr. Zapior had every opportunity to persuade the general membership of the merits of an across the board per­centage increase. This in fact was done at a general meeting which subsequently rejected the view which they advanced, and conferred a different mandate upon the bargaining committee. There is little, if any, reason to believe that the general membership would have come to any different conclusion if there had been a disclosure at the subsequent general meeting of the alternate offer of the City for a wage increase in terms of percentage across the board. We are fortified in that conclusion by the fact that when the City itself made its alternate offer known directly to the employees in advance of the union's final ratification vote, it made no significant difference.

26. While the Board has indicated that where appropriate compensation will be awarded in respect of lost opportunity, the value of the opportunity lost must be realistically assessed, and the amount of compensation awarded must be a fair reflection of that value. Compensation for lost opportunity, like all heads of compensation, should not amount to punitive or ex­emplary damages, nor should it be a windfall which would not in any event have been enjoyed by the complaining party.

27. We are compelled to conclude, on the balance of probabilities, that no practical difference would have resulted if Ms. Rice and the other members of the bargaining committee had disclosed the alternative offer when they were asked about it in the general membership meeting by Mr. Roy and Mr. Zapior. In other words, we are satisfied, on the preponderance of the evidence, that the wage outcome affecting the complainants did not flow from the vi­olation of the duty of fair representation. We also doubt the remedial value of making an order of compensation which would, in effect, amount to a transfer of money from one group of employees to another. The wage compression itself was not a violation of the Act. The duty of fair representation was breached by the misrepresentation and procedural maneuvering of a small group of individuals who have since forfeited their office. In these circumstances, the payment of damages sought by the complainants would be tantamount to compensating them for their losses resulting from wage compression. Moreover, given our conclusion that the bargaining unit should not be severed, we must have additional concerns. Any compensation ordered would be paid by the members of the Local. In these circumstances we seriously doubt the wisdom of an order whose practical effect will be to take money from one group of em­ployees — who did not themselves commit the unfair labour practice — and put it into the pocket of the complainants. Quite apart from the impropriety of that order, it would in all likelihood exacerbate rather than heal the differences between these two groups. It would have a negative effect from a labour relations standpoint. In light of the Board's conclusion on the issue of compensation it is not necessary to deal with the alternative argument of the respondent union in respect of delay.

28. We have more difficulty still with the submission of counsel for the complainants that they should be reimbursed for union dues paid since the inception of their grievance. There is no evidence to suggest that they have not continued to have the benefit of union represen­tation during that time. On the contrary, as noted above, a collective agreement with sub­stantial special benefits for the complainant employees has been concluded in the interim. If the complainants withdrew from active involvement in the day-to-day affairs of the respondent local, they did so at their own risk. The collection of dues is essential to the successful op­eration of any union, and to allow that head of recovery would, in our view, unduly penalize the respondent union and its members and would confer a windfall on the complainants. For reasons elaborated in previous Board decisions, we are also not of the view that this is a case in which the Board should make any order in respect of costs. (Repac Construction & Ma­terials Ltd., [1976] OLRB Rep. Oct. 610; The New Gregory House Inc., [1980] OLRB Rep. June 873 at pp 874-75).

29. A remedial order under section 89 of the Act should be fashioned to respond to the particular circumstances of the case. The many kinds of problems and complaints that can arise in the collective bargaining context are not susceptible to redress by a limited number of boilerplate remedies, (Radio Shack, [1979] OLRB Rep. Dec. 1220). In this case the Board concludes that the problem is one of communication and trust. For the reasons elaborated in the Board's earlier decision, a segment of employees in the bargaining unit have lost confi­dence in the truth of what they are being told by the members of the inside bargaining com­mittee and have consequently lost faith in the ratification process conducted by the local. The extent of that concern caused some 75 employees to form a separate association, file a com­plaint under section 68 of the Act and seek certification as a union in their own right. While, as the Board has noted, we do not feel that this is an appropriate circumstance to fragment the existing bargaining unit, we are equally satisfied that the legitimate concerns of the com­plainant employees can be satisfactorily protected by a remedial order pursuant to the section 68 complaint.

30. The collective bargaining problems underlying the complaint and application for certification are not unprecedented. The technical and professional employees of the City feel that their special interests have not been sufficiently appreciated and protected by the respond­ent local, principally because it has been influenced by the majoritarian interests of the clerical employees. The concern of the minority group in this case is analogous to the special concerns of skilled employees in established crafts who form part of a larger bargaining unit of pro­duction employees represented by an industrial union. The tension between industrial and craft interests has been a recurring theme in the history of the North America labour movement, although the old rivalries between craft and industrial unions substantially abated with the merger of the A.F.L. and C.I.O. in the United Stated and the emergence of the C.L.C. in Canada. More recently, the issue of accommodating the interests of skilled trades within an industrial bargaining unit has come to be resolved within the framework of the individual trade unions. Some unions have responded by giving to skilled members a number of guaranteed seats on their general policy-making bodies. Others have made constitutional provisions for the participation of special representatives of the skilled trades in the negotiation of collective agreements, notably in the auto industry. In some circumstances craft participation in industrial union government has been implemented by setting up separate locals for some categories of skilled employees. The mainstream of the union movement, however, appears to favour the representation of the skilled trades within the context of larger industrial bargaining units, with special provisions to protect their interests. (See, generally, Webber "The Craft-Industrial Is­sue Revisited: A Study of Union Government", (1963) 16 Industrial and Labour Relations Review, 381.) While the circumstances of the instant case may not precisely parallel those that led to corrective action to protect the interests of the skilled trades within the industrial unions, we find the history of industrial bargaining units helpful in thinking about the prob­lems that have led to this complaint. Experience has shown that divergent employee interests can be accommodated within a comprehensive bargaining structure. The lessons learned in the blue collar sector may be instructive in resolving comparable problems that may arise among white collar employees.

31. The remedial challenge in the instant case is to restore trust and accountability in the process surrounding the negotiation and ratification of the collective agreement. The Board agrees with counsel for the respondent union that this can be best achieved by implementing special protections for the complainant employees at the level of the bargaining committee structure. A system of proportional representation, requiring that the bargaining committee be composed of five members separately elected from different tiers of the wage grid should be implemented forthwith. That will insure that the complainants, who are the minority in the overall unit but are an overwhelming majority in the higher paid wage categories, will have a meaningful place at the bargaining table.

32. In a bargaining committee so structured the employees in the higher rated groups will be assured representation of their interest in a number of important ways. ThroLgh their own representatives they will be involved from the outset in the formulation of the union's bargaining objectives. They will have a hand in framing the positions and responses which are adopted by the union as bargaining progresses. They will have input into the way in which the union's demands and arguments are put to the employer's bargaining representatives. Per­haps most importantly for the concerns of the complainants in this case, they will witness firsthand the employer's responses and will be privy to the terms of any offer which it makes. Lastly, they will be in a position to insure faithful reports to the general membership on the state of negotiations and the terms of any outstanding offer. They will, in short, be in a po­sition to insure that the events which led to this complaint do not happen again. The bar­gaining committee so structured will avoid the possibility of either deliberate or indifferent misinformation of the technical and professional members of the bargaining unit in the ne­gotiation of a collective agreement.

33. A Board remedy should, insofar as possible, not interfere unduly with the long term prerogatives of an employer or a union to manage its own affairs. In our view, however, the adjustment in the composition of the bargaining committee suggested by the local should be implemented on a permanent basis to ensure adequate representation of the interests of all employees in the bargaining unit.

34. We are also of the view that this is an appropriate case to order a posting. A public statement posted and mailed to all members of the local, signed by its president, acknowl­edging the violation of the Act found by the Board and undertaking to observe the duty of fair representation in the future should contribute substantially to restoring the confidence of the complainants in the willingness and ability of the union to fairly represent them.

35. It is the Board's judgement that the foregoing remedies will redress the excesses and mistrust of the past and that the prognosis for the future of the bargaining unit is good. That view is fortified by the substantial special wage gains which the local made for the com­plainant employees in the last round of negotiations and, secondly, the complete change in the composition of the local's executive which has taken place since the events giving rise to this complaint. In light of these events we have every reason to believe that the complainants will be fairly represented in the future. Should our confidence in this regard prove wrong, more extreme corrective measures will be available.

36. For the foregoing reasons, therefore, the Board orders as follows:

(1) (a) The bargaining committee of the local shall be restructured to be composed of five representatives with one representative from each of classification Groups 2 and 3, Groups 4 and 5, Groups 6 and 7, Groups 8 and 9 and Groups 10 and 11 respectively. Should the foregoing classifications be changed, a similar formula to insure proportional representation shall be adopted, mutatis mutandis.

(b) Ballots for the election of each group representative shall be cast exclusively by employees within the affected groups. The five representatives so chosen shall be voting members of the com­mittee. They shall elect a chairperson from among their number as well as such other officers as the local may, through its by­laws, deem appropriate. The foregoing provisions shall not ab­rogate or limit the attendance at bargaining committee meetings of such other observers or resource persons as may be provided in the constitution and by-laws of the Local union.

(2) A notice in the form of "Appendix A", signed by the President of the local, shall be sent by the respondent Local 87 by prepaid mail to each member of the inside bargaining unit and shall be prominently posted for 60 consecutive working days on any no­tice board in the workplace normally used for the posting of union notices or bulletins.

36. The Board remains seized of this complaint in the event of any dispute between the parties with respect to the interpretation or implementation of its remedial order.

DECISION OF BOARD MEMBER J. A. RONSON;

1. In my earlier decision in this matter I concluded that the complainants sustained real and substantial harm when the local union removed Messrs. Zapior and Roy from the bar­gaining committee and then compounded the harm by refusing to disclose to the local mem­bership the full offer made by the employer. I found there was a fundamental failure by the local union to represent the complainants and protect their bargaining rights.

2. We are dealing not just with a conflict between personalities, but with a conflict between philosophies — i.e., who deserves the bigger slice of pie. Within the confines of a union bargaining unit, there can hardly be a conflict that is more "institutional" in nature.

3. But for one aspect (which I will come back to) I agree with the remedies ordered by my colleagues. But I do have reservations: given the attitude of the persons who testified and human nature being what it is, there is going to have to be a marked changed in those attitudes by all concerned in order for collective bargaining to work. Having tried to work within the rules framework of their local union, and having been clubbed by the majority of their fellow employees in total disregard of those same rules, the complainants will be most concerned at having to bargain within the same majoritarian framework. The resolution of the problems in this local will require the fastidious exercise of good faith between the local union and the complainants and between all groups of employees in the particular bargaining unit.

4. I would go further than my colleagues and award the complainants damages for the harm suffered. The recent decision of the Board in Consolidated Bathurst Packaging Ltd. [1984] OLRB Rep. Mar. 422 reiterates the Board's position about assessing the loss of op­portunity to negotiate a collective agreement when that loss was occasioned by a breach of the Act. In order to award damages in such a situation the Board applied the reasoning of the Supreme Court of Canada in Kenkel et al v. Hyman et al 1939 CanLII 7 (SCC), [1939] 4 D.L.R. 1 found at page 7:

"For my part I can find no authority in either Chaplin v. Hicks or Car­son v. Willits justifying any Court in awarding any more than a nominal sum as damages for loss of a mere change of possible benefit except upon evidence proving that there was some reasonable probability of the plain­tiff realizing therefrom an advantage of some real substantial monetary value."

(emphasis added).

The reasonable probability of monetary advantage must be assessed as of the instant imme­diately preceding the unlawful actions by the local union. To consider what occurred shortly thereafter is to allow the local union to benefit from the illegality.

5. Is there evidence from which it can be concluded that the complainants had a rea­sonable possibility of concluding a better deal for themselves in the collective agreement? I so conclude based on the following:

(a) the employer agreed with the efforts of Zapior and Roy to alleviate the wage compression;

(b) if the local union felt the membership would not act to reduce compression, why did it withhold the full offer from its members; and

(c) the most recent collective agreement contains more generous provi­sions as it affects the technical and professional employees.

6. There is no reason why the Board should hesitate to award damages in this case on the same basis as in Consolidated Bathurst Packaging Ltd., supra, unless it is for some policy reason as alluded to by the Board in Canada Cement Lefarge Ltd., [1981] OLRB Rep. Dec. 1722. If so, the applicable parameters of that policy should be delineated.

7. I would further award the complainants the damages calculated as set out in par­agraph 9 of my colleagues' decision, totalling approximately $152,000 with the Board re­maining seized should the parties not be able to agree on the exact quantum of damages.

Appendix A

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE, LOCAL 87, CANADIAN UNION OF PUBLIC EMPLOYEES, HAVE ISSUED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH WE PARTICIPATED. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT AND HAS ORDERED US TO INFORM ALL EMPLOYEES IN THE INSIDE BARGAINING UNIT OF THE CITY OF THUNDER BAY OF THEIR RIGHTS:

THE ACT GIVES INDIVIDUAL EMPLOYEES THESE RIGHTS:

To BE REPRESENTED BY A TRADE UNION AND TO

PARTICIPATE IN ITS LAWFUL ACITIVTIES.

To BE REPRESENTED BY A TRADE UNION IN A WAY

THAT IS NOT ARBITRARY, DISCRIMINATORY OR IN

BAD FAITH.

WE ASSURE ALL EMPLOYEES IN THE INSIDE BARGAINING UNIT OF THE CITY OF THUNDER BAY REPRESENTED BY LOCAL 87 OF THE CANADIAN UNION OF PUBLIC EMPLOYEES THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH

THESE RIGHTS.

WE WILL NOT ENGAGE IN MISREPRESENTATION OR

PROCEDURAL MEASURES THAT RESTRICT THE RIGHTS

OF ANY EMPLOYEES TO PARTICIPATE IN THE PROCESS

OF COLLECTIVE BARGAINING.

WE WILL NOT ENGAGE IN ANY CONDUCT THAT IS

ARBITRARY, DISCRIMINATORY OR IN BAD FAITH IN

THE REPRESENTATION OF ANY EMPLOYEES.

WE WILL IMPLEMENT THE RESTRUCTURING OF THE

BARGAINING COMMITTEE FOR THE INSIDE BARGAINING

UNIT AS ORDERED BY THE BOARD.

LOCAL 87, CANADIAN UNION OF

PUBLIC EMPLOYEES

PER: _______________________________PRESIDENT

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.

DATED this 4TH day of MAY .1984.