International Beverage Dispensers and Bartenders Union, Local 280 v. The Holiday (A Partnership), 1985 CanLII 1290

[1987] OLRB Rep. May 753

2410-85-U International Beverage Dispensers and Bartenders Union, Local 280, Complainant v. The Holiday (A Partnership), Holiday Entertainment Inc. (Gen­era] Partner), Formerly Harvey Weisfeld and Alan Charney, C.O.B. as the New Holiday Tavern, Respondent

BEFORE: Owen V. Gray, Vice-Chair, and Board Members F. W. Murray and R. Wilson.

APPEARANCES: Beth Symes and James Jackson for the complainant; no one appearing for the respondent.

DECISION OF OWEN V. GRAY, VICE-CHAIR, AND BOARD MEMBER F. W. MURRAY; May 1, 1987

1. This is a complaint filed under section 89 of the Labour Relations Act ("the Act"). The complainant trade union ("the union") alleges that the respondent's "refusal to employ members of the Union" constituted a breach of section 66 and other sections of the Labour Relations Act. After this complaint was filed, the respondent declared bankruptcy. No one attended on its behalf at the hearing of the complaint. Its failure to do so did not relieve the Board of its obligation to consider whether there is a proper, legal basis for granting the relief sought by the complainant.

Having carefully considered the complainant's evidence and argument, we have concluded that the complaint must fail.

2. The union was party to a collective agreement with 491657 Ontario Ltd. ("the original employer") covering its usual unit of persons employed in bartender, beverage waiter and related job classifications at a tavern it operated at 651 Queen Street West, Toronto, under the name "Holiday Tavern." On April 29, 1985, the original employer sold the land, building and equipment employed in the business of the Holiday Tavern to 651 Queen W. Investments Ltd. On May 17, 1985, 651 Queen W. Investments Ltd. leased those assets to Harvey Weisfeld and Alan Charney, in trust for a corporation to be incorporated.

3. These transactions became the subject of proceedings initiated by the union under sec­tion 63 of the Act, alleging that each transaction constituted a sale of business within the meaning of that section and requesting a declaration to that effect and to the effect that the purchaser in the first transaction and the lessees in the second were bound by the terms of the collective agreement between the union and the original employer. Those proceedings were defended, at first. Messrs. Weisfeld and Charney, having renovated the premises and opened a tavern/restaurant therein under the name "New Holiday Tavern", denied that section 63 applied and, in the alternative, applied for a declaration under subsection 63(5) of the Act terminating any rights the union might have required with respect to employees in their business. Those proceedings were heard by this panel on two days in October and adjourned for continued hearing on further dates in January 1986. Evidence given in the October hearings indicated that the respondent was the organization through which Messrs. Charney and Weisfeld had arranged to carry on the business of the new Holiday Tavern in or shortly after July 1985, when it opened for business.

4. This complaint was filed in December 1985. Notice of it was given to the respondent by mail addressed to it in care of the solicitors of record for Messrs. Weisfeld and Charney in the out­standing sale of business proceedings. That initial notice indicated that the complaint would be heard on the continued hearing dates already scheduled in the sale of business proceedings. Shortly thereafter, all parties agreed to adjourn both proceedings pending completion of settlement discus­sions. Those discussions were not ultimately fruitful and, at the complainant's request, this com­plaint and the sale of business application were relisted for hearing April 30, 1986, and the parties were notified accordingly. Thereafter, the Board was advised that the respondent had made an assignment in bankruptcy. The Board then gave the trustee in bankruptcy notice of both outstand­ing proceedings and the pending hearing dates therein. The trustee responded with a standard form letter addressed to the Board, in which it said:

We understand that you have instituted an action against the bankrupt and for that reason we wish to refer you to Section 49 of the Bankruptcy Act

which the letter proceeded to quote. Of course, the Board had not instituted an action against the bankrupt and, in the Board's view, its proceedings in this matter do not fall within the ambit of sec­tion 49 of the Bankruptcy Act: see Chandelle Fashions Ltd., [1981] OLRB Rep. Sept. 1191.

5. None of the respondents to this and the sale of business application attended at the Board's hearing of April 30, 1986. Counsel for the union expressed some surprise that no-one had attended on behalf of Messrs. Charney and Weisfeld, as Mr. Charney's testimony had not been completed when the hearings of the sale of business application adjourned in October 1985 and their obligations under subsection 63(13) of the Act had not, therefore, been discharged. Never­theless, counsel for the union chose not to have the proceedings adjourned so that their attendance could be compelled. Instead, she elected to present the union's case with respect to both the sale of business application and this complaint.

6. The union's complaint contains the following allegations:

7. The Grievors were employees of the predecessor employer, 491657 Ontario Limited, carrying on business as The Holiday Tavern, who have been refused employment by the successor employer, the Respondent, in this Application and one of the Respon­dents in the Section 63 Application, Board File No. 0289-85-R.

8. On or about July 2, 1985, Thelma Herman, one of the Grievors was told that no applications were being taken by the Respondent, when in fact the Respondent was in the process of hiring for its new business.

9. None of the Grievors, all of whom were available for and whom the Respondent knew wanted work with them, were given work at any time from its commencement of business until the present.

10. In another period of hiring in late October and November, 1985. Linda Bratby, Myra Sullivan and Alan O'Leary all once again indicated their interest in working for the Respondent. Although the Respondent indicated that they would get back to these employees, they have not as yet heard back from them, and no offer of employment has been made. Thelma Herman. who was ill at the time, was not contacted for employment, although the employer knew she wanted to work at The Holiday Tav­ern.

11. During both the periods of hiring mentioned above, the Respondent has fully staffed its operation, including positions of waiting tables and attending bar, which were the jobs of the Grievors previously.

12. The refusal to employ members of the Union, while employing other people in the same jobs, amounts to a lock-out, and a breach of Section 3, 66, 70 and 72.

The relief claimed in the complaint originally included an order that the respondent post a notice in the usual form and "reinstate the grievors to their former positions" with compensation for lost wages, gratuities and other benefits. In view of the closure of the New Holiday Tavern and the res­pondent's subsequent assignment in bankruptcy, counsel for the complainant advised the Board that it would not pursue its claim for posting and reinstatement remedies, and would limit the com­pensation claims to the period during which it understood the New Holiday Tavern had been in operation: mid July 1985 to the end of January 1986.

7. The Board's usual practice in section 89 complaints is to deal at first instance only with the question of the respondent's liability to pay compensation; if the Board finds that there is such liability, it retains jurisdiction to deal with the quantum of compensation at a later date if the par­ties are unable to resolve that issue. In this case, however, counsel for the complainant expressly elected to address both liability and quantum in the evidence and argument presented at hearing on April 30, 1986.

8. Myra Sullivan and Linda Bratby were actively employed by the original employer when the sale to 651 Queen W. Investments Ltd. took place. Lisa Bajor was one of the owners of the original employer, 491657 Ontario Ltd. In the evening of April 27th, she told Myra Sullivan and Linda Bratby that they were in the process of selling the business, but were not sure whether the transaction would close as scheduled the following Monday. Whether it did or not, she said, the business would be closed on that Monday, and would re-open on Tuesday under either the new owners or the old ones. Sullivan and Bratby arrived at the Holiday Tavern early that Monday afternoon. The sale did close, and Mr. Title, a principal of the purchaser, arrived shortly there­after. He is quoted as saying "what the hell is everybody doing here - I bought an empty building", or words to that effect. One of the union's business agents arrived on the scene at some point, and Ms. Bajor introduced him to Mr. Title. Sullivan and Bratby heard Mr. Title tell the business agent to contact him at his office. The grievors repeatedly asked Mr. Title whether they had a job. Title avoided these questions initially, and then finally said "I don't know." The grievors recall seeing two people over by the wall of the room in which these conversations were taking place. They now identify those two people as Messrs. Charney and Weisfeld. There is no suggestion that either of them participated in or could even overhear these conversations as they took place.

9. Counsel for the complainant testified about her telephone and written correspondence with representatives of 651 Queen W. Investments Ltd. and Messrs. Charney and Weisfeld. On April 30, 1985, she had spoken both to Elliot Title, the principal of 651 Queen W. Investments Ltd., and Mr. Sloan, its solicitor. From them she learned that the premises were closed for renova­tion and that the company was looking for a tenant. The company was aware of the original employer's collective agreement with the union. The implications of that agreement were dis­cussed. One of the them was the right of employees to return to work. Sloan asked how many employees did want to exercise that right. That question was answered in union counsel's letter of May 3, 1985 to Mr. Sloan. The application of section 63 of the Act and the employment of the grievors are dealt with in the following paragraphs of that letter:

As of the date of sale, April 29, 1985, there was a Collective Agreement in place between Inter­national Beverage Dispensers and Bartenders Union, Local 280 and the Holiday Tavern. Pur­suant to Section 63 of the Labour Relations Act, my client is taking the position that 651 Queen W. Investments Ltd. is bound by this Collective Agreement.

The Holiday Tavern and the Union were in conciliation with respect to a new Collective Agree­ment. My client will give you Notice to Bargain pursuant to Section 63(3) of the Labour Rela­tions Act, we would suggest that the conciliation process continue.

In our telephone conversation you asked me how many employees wish to be reemployed. We have reviewed the matter with our members and there are four (4) employees who were employed on April 29, 1985 and wish to be continued in their work plus Alan O'Leary who had grieved his discharge of July 5, 1984 and was ordered to be reinstated by an Arbitrator in an awarded [sic] dated August 29, 1984. You advised that you were aware that was [sic] an appli­cation for Judicial Review pending before the Divisional Court of this award and that if that application were denied, Mr. O'Leary would be reinstated to the employment of 651 Queen W. Investments Ltd.

Because of your uncertainty with respect to the Labour Relations matter in this file, my client has instructed me to file an application under Section 63 of the Labour Relations Act to deter­mine the respective rights of the parties. I enclose a copy of that application for your informa­tion.

10. In May, Mr. Title contacted counsel for the union, told her that the premises had been leased to Weisfeld and Charney and gave her the name of their lawyer. She spoke to that lawyer on May 28, 1985. He gave her further information about the lease transaction and his client's intention to open an "entertainment club." He asked for a copy of the collective agreement. Coun­sel for the union advised him that former employees of the original employer wanted jobs in the new business and she took the position that the lessees were to take those employees back. This conversation is referred to in a letter from union counsel to the lessee's lawyer dated May 29, 1985, which made extensive reference to section 63 and enclosed a copy of the collective agreement. The only reference to employment of the grievors appears near the end of the letter:

The Union looks forward to dealing with the new owners and to try to resolve the outstanding matters. As I advised you, the Union had grieved the discharge of an employee who was fired in July of 1984. An arbitrator upheld that grievance and reinstated that employee to his job as waiter with full compensation. The Holiday Tavern chose to make an application to the Divi­sional Court for Judicial Review of that decision. The Judicial Review has been perfected, fac­tums have been filed, and we are awaiting a date for hearing before the Divisional Court.

Should the arbitration award be upheld, your clients, as successor employers, would be bound to reinstate the grievor and to pay him compensation which includes wages, benefits and gratui­ties.

11. Grievor Thelma Herman did not testify. There was no evidence with respect to the con­versation alleged in paragraph 2 of the complaint and, thus, no evidence that the conversation was with someone with actual or ostensible authority to speak or act on behalf of the respondent.

12. In late October or early November, after the first two days of hearing of the section 63 application, grievors Sullivan, Bratby and O'Leary each attended (on separate occasions) at the New Holiday Tavern and applied for work there. Each of them was interviewed by Mr. Charney. Charney and the three grievors had all been in attendance and seen one another at the Board's h arings in section 63 application. Each grievor's prior employment at the original employer's Hol­itjay Tavern was discussed during his or her interview with Chamey. At the end of each interview, Charney told the grievor being interviewed that he would get back to him or her when a job came up. There is no evidence that Mr. Charney told any of the grievors that there was any position available at the time of these interviews, nor was there any evidence that the respondent hired any­one at or after that point in time. None of the grievors testified to any discussion with Charney about the hourly rates paid to or hours worked by the respondent's employees at the time of the interviews, or the number of persons employed by the respondent at that time. There is no evi­dence before us with respect to those matters. Each of the grievors had made more than one visit to the New Holiday Tavern in connection with arranging and participating in these interviews. On those occasions, the grievors observed that liquor and food were being served, although not in great quantity (which would not have been surprising, having regard to the time of day at which these attendances occurred). Apart from the inference which could be drawn from those observa­tions, there was no evidence that the respondent had employees at all.

13. As we have noted earlier, counsel for the union expressly elected to deal in evidence with the quantum of losses suffered by the grievors as a result of the respondent's alleged viola­tions of the Act. She advised the Board that no compensation was sought on behalf of Mr. O'Leary, for reasons which had to do with the still outstanding matter of the arbitration of his dis­charge by the original employer. No evidence was led with respect to Thelma Herman's losses. Linda Bratby and Myra Sullivan both identified the wage rate they had received and hours they hd worked for the original employer, as well as the amount of gratuities they ordinarily received from customers while employed by the original employer. They also testified about their attempts t obtain altemate employment and the amounts they had earned at alternate employment during the period for which compensation was sought.

14. It was the union's position that there had been "a sale of business" within the meaning of section 63 of the Act from the original employer to 651 Queen W. Investments Ltd. and a fur­ther such sale of business from 651 Queen W. Investments Ltd. to the respondent. We found that t9 be so in our decision of May 23, 1986 in Board File 0289-85-R. The collective agreement between the union and the original employer was in effect on April 29, 1985, when the first sale took place. By its terms, however, the collective agreement in question was to expire on April 30, 1985, if timely notice to bargain were given prior to that date. Such notice had been given before either sale occurred. As a result, that collective agreement had expired by May 17, 1985, when the second sale occurred.

15. Subject to the provisions of other subsections not relevant here, subsections (2) and (3) of section 63 of the Act prescribe the labour relations consequences of a sale of business:

(2) Where an employer who is bound or is a party to a collective agreement with a trade union sells his business, the person to whom the business has been sold is ... bound by the collective agreement as if he had been a party thereto

(3) Where an employer on behalf of whose employees a trade union ... has been certified as bar­gaining agent or has grieved is entitled to give notice under section 14 or 53, sells his business, the trade union ... continues ... to be the bargaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business, and the trade union ... is entitled to give to the person to whom the business was sold a written notice of its desire to bar­gain

Subsection (2) applies only to a sale of business which occurs during the term of a collective agree­ment. This Board has interpreted the language of that subsection to mean that, in those circum­stances, the successor employer steps into the shoes of his predecessor for all purposes. The union and employees retain as against the successor all the rights they had as against the predecessor under the collective agreement, including any seniority rights, rights to continued employment or rights to recall from layoff: see Emrick Plastics Inc., [1982] OLRB Rep. June 861; Caressant Care Nursing Home of Canada Limited, [1984] OLRB Rep. Aug. 1060 and Daynes Health Care Limited, [1984] OLRB Rep. Aug. 1091.

16. On the other hand, if there is no subsisting collective agreement at the time of sale then, even though the predecessor may have been obliged by section 79 of the Act to continue to observe the terms and conditions of employment which had been applied during the currency of the collective agreement, the successor employer is not put in the shoes of the predecessor for all purposes. Subsection 63(3) preserves only the trade union's right to act as exclusive bargaining agent for persons employed by the successor in "the like bargaining unit in that business." The suc­cessor is not obliged to continue the employment or employment practices of his predecessor, but only to engage in collective bargaining with the trade union after being given the notice to bargain contemplated by subsection (3): Re 380611 Ontario Ltd. (Colonial Tavern) (1979), 1979 CanLII 3929 (ON LA), 23 L.A.C. (2d) 150 (Adams); Oxford Manor Rest Home, [1980] OLRB Rep. Dec. 1786; Davidson-Walker Funeral Homes, [1981] OLRB Rep. Oct. 1359; and, Winchester Press, [1982] OLRB Rep. Feb. 284. As the majority observed in their award in 380611 Ontario Ltd. (Colonial Tavern), supra, at pages 155-156:

s.55(3) continues the bargaining rights of a trade union, but not the employment relation­ships existing between the vendor and its employees. Section 55(3) is quite clear in stipulating the trade union, in facts similar to those at bar, continues to be the bargaining agent "for the employees of the person to whom the business was sold". This wording is quite unlike that of s. 55(2) which binds the person to whom a business is sold to any existing collective agreement "as if he had been a party thereto". These strong words convey a clear legislative intention to depart from the common law dictates of privity of contract and thereby impose a contract of sorts on a third party who was never a party to such an agreement. It is our opinion that had the Legisla­ture intended to carry over the individual contracts of employment to the purchaser of a busi­ness, when no collective agreement from which individual rights are derived is in operation, wording similar to that found in s. 55(2) would have been resorted to.

17. As the transaction between 651 Queen W. Investments Ltd. and the respondent was one to which subsection (3) of section 63 applied, the grievors' rights to employment in the sold business were not preserved. The respondent was under no legal obligation to employ them in any jobs which could be described as "the same jobs" they had performed for the original employer, or any other jobs. It could deal with any question of their employment as it wished, subject only to the unfair labour practice sections of the Labour Relations Act and to the results of any collective bargaining which might follow the giving of the notice to bargain contemplated by section 63(3) of the Labour Relations Act. Although nothing particular turns on it, we note that, as of April 30, 1986, the applicant had no record of having given a notice to bargain to the respondent.

18. The union alleges breach by the respondent of four sections of the Act: sections 3, 66, 70 and 72. Section 3 does not itself create a substantive offence or unfair labour practice capable of being remedied under section 89 of the Act (see Keith MacLeod Sutherland, [1983] OLRB Rep. July 1219 and cases cited in paragraph 6 thereof). Specific conduct contrary to either section 70 or section 72 was neither alleged nor proven.

19. The relevant portion of section 66 provides:

20. No employer, employers' organization of 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 of 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;

It cannot be said that a respondent has "refused to employ or to continue to employ" a grievor unless the grievor had applied for employment by, or was an employee of, the respondent at the time the alleged unfair labour practice is committed. From the use of such terms as "reinstate” in the forming of the complaint and from some of the submissions of counsel in the early stages of the April 30th hearing, it appears that the union approached this complaint as though it involved a refusal to continue employment to which the grievors were entitled by operation of law. As we have noted, the grievors were not entitled to employment by the respondent, because the sale to the respondent fell under subsection 63(3) and not under subsection 63(2). Had it fallen under sub­section 63(2), there would have been a right to employment, and the evidence presented to us would have been an adequate basis on which to grant the compensation sought. As the sale did not fall under subsection 63(2), the threshold question was not whether the respondent had refused to continue an employment relationship with the grievors but whether it had refused to enter into one.

20. There can be no "refusal" by an employer to enter into an employment relationship with a grievor unless the grievor has applied for employment. The grievors themselves did not apply to the respondent for employment until late October or early November 1985.

21. With respect to the grievors' non-employment by the respondent in the summer of 1985, counsel for the complainant argues that the requisite applications for employment are to be found in the discussions with Mr. Title of April 29, 1985, and the written and telephone corre­spondence referred to in paragraphs 9 and 10 of this decision. She argues that communications with Mr. Title on behalf of 651 Queen W. Investments Ltd. are matters of which the respondent is deemed to have notice because the lease to Charney and Weisfeld provided that until the liquor licences transferred from the employer to 651 Queen W. Investments Ltd. were further transferred to them, they would operate the tavern business "as the Landlord's Bar Manager", but for their own account. In an imaginative reversal of the ordinary rule, counsel argues that notice to or knowledge of Mr. Title is constructive notice to or knowledge of his corporation's agents, Messrs. Charney and Weisfeld, and, hence, is notice to or knowledge of the respondent corporation of which Charney and Weisfeld are principals. Even if the knowledge to be ascribed to Charney and Weisfeld was knowledge Title acquired after their fictive agency began, we are unaware of any legal principle by which that knowledge could be ascribed to them except by proof that they were actually aware of it. Even taking into account the evidence that Charney and Weisfeld were on the sidelines on April 29, 1985, we can find no such evidence.

22. Thus, any application to the respondent for employment in the summer of 1985 must be found, if at all, in communications with persons clearly acting on behalf of the respondent. The only such communications are the telephone and written communication between union counsel and the respondent's solicitor in May 1985. The union's message in those communications was clearly that certain persons had the right to employment, not that they wished to apply for employ­ment. We find it hard to characterize these communications as applications for employment in the ordinary sense. In any event, there is another aspect of these communications which makes it impossible to characterize them as applications for employment: the persons alleged to desire employment were never identified to the respondent's solicitor by name. While we accept the proposition that a trade union may act as the agent of its member in soliciting offers of employ­ment or making applications for employment, the mere fact that an employer invites no further information upon being told by a union representative that "we have members who would like to work for you” is surely not a violation of the Labour Relations Act, whatever the motivation may be for not pursuing the conversation. The applicant for employment must at least be named in a union agent's conversation with a potential employer before that conversation can be characterized as an application for employment. Accordingly, this complaint does not disclose a violation of sec­tion 66 at any point in time prior to the grievors' actual applications for employment in October of 1985.

23. Turning to those applications, the evidence establishes that Linda Bratby, Myra Sulli­van and Alan O'Leary applied to the respondent for employment and were not thereafter employed by the respondent. There is no evidence that the respondent was considering hiring any­one when these applications were made, nor that the respondent hired anyone then or at any time thereafter. Putting aside for a moment the question whether there has been a violation of section 66(a), there can be no award of compensation to any grievor if there is no evidence of loss. As the grievors had no legal right to continued employment in the sold business, the question is not what the grievors would have earned had they remained employed in the sold business. The question is: what they would have earned at whatever employment was available with the respondent at the time? We need to know how long each of the two complainants for compensation would have worked, and at what rate of pay, had they been hired by the respondent following their interviews in October 1985. We have no evidence whatsoever that there was any position they could have per­formed which was open at or after that time. If there were ever such positions, there is no evidence of their duration. Some evidence with respect to the availability and duration of and remuneration for work opportunities with the respondent following the grievors' interviews could have been put before the Board by serving a summons on one of the respondents' principals requiring him to bring to the hearing all employment records of the respondent. However much subsection 89(5) might assist in finding a violation, it cannot assist in finding a resulting compensable loss. Subsec­tion 89(5) does not cast on a respondent the obligation to demonstrate that a complainant or grievor has suffered no loss. The complainant must adduce evidence respecting the nature and extent of damages suffered if the Board is to make any order as to remedy, particularly in relation to compensation: see Windsor Airline Limousine Services Ltd., [1980] OLRB Rep. Feb. 272 at paragraph 71.

24. Counsel chose to deal in one hearing with both compensation and liability. There is no evidence directed to those elements of damages which must be established in quantifying compen­sation for a refusal to employ when there is no existing right to employment. We cannot invent a basis for awarding compensation, and can award none with respect to the alleged refusals of employment of Sullivan and Bratby.

25. As we noted earlier, the union expressly withdrew its requests for an order that the grievors be "reinstated" and an order that the respondent post a notice to employees in the usual form. It withdrew those requests because it knew the respondent was bankrupt. There was, conse­quently, no present employment to restore and no psychological or pedagogical purpose to be served by a notice about employee rights subscribed to by an entity not expected to engage in any f4rther employment. For those same reasons, and assuming such a declaration could be made in these circumstances, it does not appear to us that any useful purpose would be served in these particular circumstances by a bare declaration that the respondent has violated the Act with respect to the non-employment of Sullivan, Bratby and O'Leary following their interviews in late October and early November, 1985. The scope of the principle which our colleague describes in his dissent might be the subject of debate, if only as a consequence of the subsequent abandonment by the Board of the screening process to which the Board made reference in paragraphs 29 to 32 of its decision in I.C.B. Warehousing, [1976] OLRB Rep Oct. 621. With great respect to our colleague, we think it unnecessary and undesirable to put the limits of that principle in issue in the circum­stances of this case.

26. We have come to the same conclusions with respect to the claim in paragraph 4 of the complaint that, in late October and November 1985, Thelma Herman "was not contacted for employment, although the employer knew she wanted to work at the Holiday Tavern." As we have noted earlier, we have difficulty with the proposition that an employer should be put on the defensive by an allegation that it knew someone wanted to work for it, in the absence of an allega­tion that an application for employment had been made by that person or by someone expressly acting in that person's name. Our sensitivity to that problem is heightened by the contrast between paragraph 3 of the complaint and the evidence which emerged as to the respondents' knowledge of the identity of persons said to want to return to work. In any event, there is no evidence that Herman has suffered any loss in respect of which a remedy would be appropriate. Finally, and assuming we could do so, we see no reason to make a bare finding of a violation in the circumstances.

27. For these reasons, we dismiss this complaint.

DECISION OF BOARD MEMBER R. WILSON;

1. I dissent on the decision of my colleagues with regard to this application.

2. I think there are two distinct perspectives from which to examine this case. One per­spective focuses on the collective bargaining relationship of the immediate parties. It could be argued that no useful purpose would be served in these particular circumstances by a bare declara­tion that the respondent has violated the Act. I believe the second perspective being one of princi­ple must be considered as well.

3. Subsection 89(5) provides protection from covert employer interferences with funda­mental individual and collective bargaining rights under the Labour Relations Act.

4. It focuses on any management behaviour which may be motivated by anti-union antimus. It recognizes the ultimate weakness of many of the substantive protections against anti-union behaviour if the victims of such behaviour had to establish the state of mind of management deci­sion-makers. It is important not to minimize the clear obligation of the respondent employer to come forward with an explanation for suspect behaviour. Even if a declaration can serve no useful purpose in the relationship before the immediate parties before the Board. A declaration may be desirable to reinforce the principle of subsection 89(5).

5. I agree there can be no denial of employment before it as applied for and that there can be no breach of section 66 before Ms. Sullivan, Ms. Bratley and Mr. O'Leary made application to Mr. Charney in late October and early November 1985.

6. The time frame following late October and early November remains unresolved and although I do not wish to suggest the union bore some formal onus to prove that there were in fact job openings or that the complainants believed there were job openings or that there was a real prospect of job openings in a declaration of breach of the Act. Evidence of this nature in this par­ticular case, I believe would have assisted the Board in its deliberations.

7. Therefore, based on the evidence and circumstances of this case, I would have found a breach of section 66 of the Labour Relations Act, while agreeing with my colleagues that there can be no award of compensation.