[1986] OLRB Rep. September 1190
3148-84-U; 3346-84-U Ontario Public Service Employees Union, Complainant, v. Cambrian College of Applied Arts and Technology, Respondent
BEFORE: S. A. Tacon, Vice-Chairman, and Board Members F. W. Murray and M. A. Ross.
APPEARANCES: Ian Roland and Francois Legault for the complainant; D. K. Gray, G. Crombie, F. Howe and R. C. Hurley for the respondent.
DECISION OF THE BOARD; September 25, 1986
On agreement of the parties, the above complaints were consolidated. The complaints allege violation of sections 65 and 75 of the College's Collective Bargaining Act (CCBA) in the cancellation by the respondent of courses taught by full-time teachers in the extension program in the Fall 1984 semester (Board File No. 3148-84-U) and in the cancellation of two courses scheduled in the Winter 1985 semester in the extension program to be taught by L. C. Hopkins, a full-time teacher (Board File No. 3346-84-U). The complaints assert that the former cancellations occurred because of a legal strike by full-time teachers commencing October 17, 1984 and the latter cancellations because of criticism by Hopkins of the selection of a labour representative on the respondent's Board of Governors and Hopkins' participation in the earlier strike.
Board File No. 3148-84-U initially was brought on behalf of seventeen grievors. Five individuals (A. Brutto, I. Spencer, J. Hood, P. Kallio and K. Burns) requested, in writing, that their names be deleted from the complaint. Accordingly, the matter preceded with respect to the remaining twelve grievors.
The Board heard testimony from thirteen witnesses and a number of exhibits were filed. The Board has assessed the credibility of the witnesses according to the usual criteria, namely, the consistency of their evidence, the firmness of their memory, their ability to resist the influence of interest to modify their recollections, their capacity to express clearly their recollections, their demeanor while testifying, their responses in cross-examination and what appears to the Board to be reasonably probable when the circumstances and the testimony of the witnesses are considered. For the most part, the Board regards the differences in testimony as relatively minor and to be expected given the passage of time. The Board has some specific comments regarding credibility, infra, as appropriate. Having weighed and assessed the evidence, including the credibility of the witnesses, the Board makes the following findings of fact.
On October 17, 1984, the Ontario Public Service Employees Union (OPSEU) representing full-time teachers at community colleges throughout Ontario commenced a legal strike. It was not disputed that the College's Collective Bargaining Act mandates province-wide bargaining between the Council of Regents on behalf of the twenty-two Colleges of Applied Arts and Technology and an employee organization, in this case, OPSEU. There was no dispute, as well, that the CCBA, by virtue of section 59(2), deems all employees in the bargaining unit concerned to be taking part in the strike where the employee organization gives notice of a lawful strike and payment salary or benefits to those employees during such period is prohibited.
The respondent, Cambrian College, offers a "regular" program to full-time or "day" students and an "extension" program in the evening at various locations. The extension program c9nsists of "credit" courses (courses which are accepted toward a degree, diploma or certificate) and general interest or non-credit courses on a wide range of subjects. Persons enrolling in the extension courses include those from the community and day students. In particular, day students may register in credit courses in the extension program for several reasons, including, "make ups" for failed courses and because of time tabling conflicts in the regular program. The extension program is staffed by full-time teachers at the College and part-time instructors. Generally, the full-time teachers offer instruction in credit courses in the extension program rather than the general interest courses. In the Fall 1984 semester, of the approximately four hundred extension offerings, about forty-five were credit courses taught by full-time faculty.
Many full-time faculty regularly teach one or more courses in the extension program, in one or more of the Winter, Summer and Fall semesters. Such courses are separate from the "regular" workload of full-time teachers. These positions fall outside the work covered by the collective agreement. The extension program administration contracts individually with the instructors, including full-time faculty, to teach these courses. Occasionally, a full-time teacher will offer a credit course through the extension program "on-load", that is, as part of his or her "normal" workload as a full-time teacher at the College. Instructors are hired for the extension program by the administrative staff responsible for the program in consultation with the various department h~ads and division directors. Individual full-time teachers may express interest to their department chairpersons in teaching particular courses in specific semesters and/or the department heads may approach individual faculty members before making recommendations regarding the staffing of the extension courses.
7 With the onset of the strike, the full-time faculty ceased to teach both their regular courses and those in the extension program. Students in the extension program were informed through press releases and in-class announcements just prior to the strike that most extension courses would continue. Those courses taught by full-time faculty, however, were temporarily suspended and those students individually notified of this. That is, those students remained registered but were told that, if the strike was lengthy, they would be notified about applying for a refund of fees.
It is appropriate to indicate the roles and identities of several of the administrative staff relevant to these complaints: G. Crombie, College President; T. Blundell, the Dean of College Programs; D. Lake, Director of the Science and Technology Division, previous Department Chairperson and also responsible for the Labour Studies Program; P. Taylor, Chairperson of the Department of Chemistry, Metallurgy and Physics; P. Derks (formerly Neuper), Director of Community Programs; S. Del Missier, Community Programs Manager.
Not surprisingly, the strike occasioned considerable uncertainty with respect to all courses scheduled in the Fall semester in the day school and those courses which were temporarily suspended in the extension program. The administration established an evaluation committee which met frequently throughout the strike to assess matters. An effort was made by the College administration to establish a communication link with the union during the strike to deal with a variety of concerns but this was apparently rebuffed. The extension courses which were not taught by full-time faculty were monitored throughout the strike by the administrative staff with respect to attendance, incidents and complaints. Crombie informed those attending an administrative meeting held at the strike's commencement of the College's initial responses and that the situation would be reviewed in approximately two weeks, namely, at the end of October, should the strike continue.
On October 31, 1984, Crombie and Derks met to discuss the impact of the strike on the extension program. It was decided to seek replacements for the full-time teachers whose extension courses thus far had been suspended. Del Missier was directed to prepare a listing of those courses taught by full-time faculty. She did so, categorizing those courses as "easily" replaced, "difficult" to replace or "virtually impossible" to replace and indicating recommended replacements where possible. As Derks was away, Del Missier met directly with Crombie on November 2 (Friday) to review her listings. She was instructed by Crombie to commence immediately replacing instructors wherever possible in consultation with appropriate divisional directors.
Del Missier began that process on the Friday, following the meeting with Crombie, and continued to contact possible replacements on the weekend (November 3 and 4) and early the following week. By Monday, November 5, several replacements had given commitments to teach the remainder of the courses in question, including D. Boyer, J. St. Pierre, P. Montgomery and G. Cooper, to give some examples. Del Missier indicated some replacements were informed that they could have a week to prepare, if necessary. In fact, several replacements actually commenced teaching or meeting classes in the week of November 5. As soon as replacements were confirmed, the Registrar's office contacted students by telephone to indicate when the classes would recommence. In perhaps two instances, the schedule of the replacement necessitated a change in the original night allocated for that class. Students were canvassed as to the acceptability of an alternative night and, where that was acceptable, the new slot was confirmed. Students who could not meet that time were given refunds.
Crombie and Derks, in mid-week, reviewed the lists of suspended courses in the context of the numbers of replacements who had been located. On Wednesday afternoon, November 7, Crombie indicated that those courses for which replacements had not been found were to be cancelled. That was communicated late Wednesday or early Thursday to Del Missier who started contacting the relevant full-time faculty later on Thursday. The Board accepts Del Missier's characterization of those telephone calls as an unpleasant duty. The calls were generally quite brief; Del Missier indicated that the classes had been cancelled or would be completed by a replacement. The process of notifying the full-time faculty took several days given some were not reached at the initial attempt. A few faculty were notified by department chairpersons. Students in those classes to be cancelled were telephoned by the Registrar's office commencing late Wednesday or early Thursday; students were told of the cancellation and that a full refund would be forthcoming.
The Board does not regard it as necessary to comment on all of the telephone conversations between Del Missier and the various full-time faculty about which the Board heard evidence.
The Board does note that P. Brousseau called Del Missier on Thursday morning, November 8, to inquire about her course in the extension program. Brousseau is a personal friend of Del Missier. The Board accepts Del Missier's account that she hesitated to tell Brousseau outright that morning that a replacement had been found to complete Brousseau's course until Del Missier had double-checked that the decision had not been rescinded. The Board also concludes that Del Missier was likely somewhat evasive in that first conversation given the personal relationship between the two. ~ nce Del Missier confirmed with Derks that the courses were cancelled and the replacements ould continue where replacements had been found, she called Brousseau back and relayed that information. Another full-time instructor, H. Wicke, informed Del Missier when she called that the bulk of his course, which had a practicum and in-class components, had been completed. Del Missier replied that she would pass on his concern; she did so and relayed the response that the c~ecision to cancel would not be rescinded. Finally, another faculty member, J. Wardle, was initially notified by Del Missier that both his courses in the extension program were cancelled. However, one of those courses was part of his normal teaching load at the College. Del Missier checked with Derks and the "on-load" course was continued.
The process of seeking replacements and cancelling extension courses for which no suitable replacements could be found took place against the backdrop of continued negotiations between the Council of Regents and the union during the strike. As noted earlier, an evaluation committee met regularly to assess the impact of the strike. Reports were continuously forwarded by the College administration to the Minister regarding the effect of a strike of varying duration on the prospect of completing the semester and the educational program of the students. A report forwarded on Wednesday morning, November 7, advised the Minister that, in the view of the College administration, the strike could continue to January 1985 without jeopardizing the students' academic program. On Wednesday and Thursday, however, there were rumours that legislation would be introduced ending the strike and ordering the teachers back to work. On Thursday afternoon, the Minister announced that legislation would be introduced later that day; the Bill received first reading at 4:00 p.m. but it was less certain when the Bill would be passed into law. The College put out a public service announcement on Friday, November 9 that, if the legislation was passed that day, regular classes would resume on the following Monday, namely, November 12. According to Hansard, the legislation was given third reading at 4:50 p.m. and Royal Assent immediately thereafter.
In preparation for the day students' return, D. Lake and F. Wilson, both divisional directors, met on the weekend of November 10 and 11 to revise the timetabling in order to implement a decision to extend the Fall 1984 term to compensate for the time lost due to the strike. Earlier versions of revised timetables to reflect time lost to the strike had been submitted to President Crombie throughout the work stoppage. Day students were informed that the Fall 1984 semester would continue into January 1985, with classes themselves scheduled until January 23, 1985. The Fall semester for the extension program was formally extended as well and a few of the courses taught by the replacement teachers continued into early January. The Winter 1985 semester for the extension program commenced in early February, following the start of the (delayed) Winter day semester by the usual period.
The Board considers it expeditious to next outline its factual findings touching on the teaching of Hopkins in the extension program. First, though, it is necessary to briefly sketch the policy regarding enrolment in extension courses. Generally, courses required paid registrations of at least ten students or were cancelled. This policy was not formal but reflected a long-standing practice. There were several exceptions to the policy. For example, general interest courses could run with fewer than ten students as these were operated on a cost-recovery basis. Some courses were offered by the College on a "contract" basis wherein costs were billed to an employer, for example, pursuant to an agreement. For credit courses, funding was linked to enrolments and the minimum of ten students approximated a break-even point. In some circumstances, credit courses were offered despite an enrolment of less than ten. For example, exceptions to the "ten students" policy were permitted where the course was offered in one of the smaller communities served by the College, where the course was the last requirement in a certificate or diploma program or where the course was offered for the first time in order to get the course "off the ground", so to speak. In the Board's view, while the enforcement of the policy may have been somewhat less rigorous prior to Derks becoming Director of Community Programs, during her tenure in that position the policy was more consistently followed.
Hopkins had taught physics and/or chemistry in the extension program on a fairly regular basis. In the Fall 1984 semester, Hopkins was scheduled to teach one course, Chemistry I. Chemistry I initially was to commence on September 19. On September 13 or 14, Del Missier informed Hopkins that a minimum of ten registered students was needed or the course would be cancelled; at that point, six students were enrolled. Hopkins indicated he would endeavor to obtain further registrants. Del Missier agreed to cancel the first class and, thus, delay the course for one week to see if further enrolments materialized. Del Missier spoke with Hopkins on September 27 at which point eight students were formally registered. The Board heard detailed accounts of the number of students enrolled, of one student who withdrew and was to re-register, of one student who was to transfer from another course and of two students whose registration cheques Hopkins was holding during the period when it was unclear if the course would be offered. The Board finds that Del Missier's account of the telephone conversation with Hopkins is far more credible and consistent with a reasonable interpretation of the evidence, including the documents filed. That is, the Board finds that Hopkins assured Del Missier that the minimum of ten students would be reached by the new start date for the course. On this assurance, Del Missier permitted the course to run. In the Board's view, Del Missier was a highly credible and candid witness. The Board notes that Del Missier's account is partially corroborated by Lake, a friend of Hopkins, who testified that his impression from his conversations with Hopkins was that Hopkins indicated there would be ten registrants.
Given Hopkins' assurances regarding enrolment, Del Missier did not follow up the matter with the Registrar. Once the strike commenced, however, a review of all extension courses revealed that Chemistry I only had eight registrants. Derks obtained verbal authorization from T. Blundell, Dean of College Programs (the extension division) to cancel the course. Formal notice of this was given to the Registrar at 8:15 a.m. on November 5,1984. In view of the ongoing strike, Hopkins was not notified immediately of the cancellation.
In December 1984, Derks and Del Missier met with Lake to determine the instructors for the Winter 1985 semester. Lake recommended Hopkins for at least one course. Derks and Del Missier did not agree. Both considered Hopkins to have been "unprofessional and untruthful in the manner in which his course had started and continued" in the Fall semester. Further, both felt Hopkins, in the past, had been rude and aggressive to support staff. Two or three specific incidents over the years which had come to their attention were raised. As a result of the discussion, it was understood that, if Hopkins was to teach in the Winter 1985 semester, Blundell's authorization would be required as Derks would not otherwise approve the recommendation.
In January 1985, Del Missier learned that Hopkins was scheduled to teach Physics I and share Chemistry I with another faculty member. Derks contacted Blundell who indicated he had not authorized the appointments. Crombie was apprised of the situation and decided that Hopkins was not to teach in the Winter 1985 semester. Hopkins was informed of the decision by Lake who indicated that he (Lake) did not know the reasons but that Hopkins should contact Crombie directly for the explanation. Hopkins at no time contacted Crombie to learn the reasons involved. At the time both courses were cancelled, approximately February 1, 1985, the enrolment in Chemistry I and Physics I was two and five respectively.
During January, as well, the Council of Regents was seeking a replacement for the labour representative on the College's Board of Governors. The local labour council recommended three persons, apparently after some internal dispute as to the selection. The Council of Regents did not accept the labour council's choices but appointed Ron MacDonald, President of Local 6500 of the U.S.W.A. The controversy was reported in the press. In the labour council's inhouse publication, Hopkins was quoted as describing the labour council as being used in a tokenistic way and suggesting "disengagement" of the labour council from the College.
In August 1985, Lake met with Crombie and Derks to discuss the possibility of Hopkins' teaching in the Fall 1985 semester. It was agreed that Hopkins could teach and a memo was addressed to Hopkins from Derks politely referring to the Fall 1984 course enrolment and Hopkins' relationship with support staff. The course assigned, again Chemistry I, was eventually cancelled because of insufficient enrolment.
The Board next sets out the thorough and able submissions of counsel in a highly abbreviated form.
Counsel for the complainant acknowledged the absence of a "reverse onus" clause in the CCBA comparable to section 89(5) of the Labour Relations Act and referred to two cases of the Board predating section 89(5) as establishing the standard for evaluating the evidence: National Automatic Vending Co. Ltd., 63 CLLC 16, 278; Delhi Metal Products Limited, [1974] OLRB Rep. July 450. Counsel reviewed the evidence of Crombie, Derks and Del Missier regarding the reasons for the cancellations in the Fall 1984 semester and submitted those reasons were inconsistent and not plausible. Counsel argued the full-time faculty could have resumed their courses given the extended semester, even where replacements had been hired and commenced teaching and, certainly, rather than cancelling those courses for which replacements could not be found. It was asserted the circumstantial evidence pointed to a decision by Crombie to replace or cancel those courses to demonstrate that the faculty could not strike with impunity. With respect to Hopkins, counsel argued that Hopkins had not intended to be misleading as to the enrolment in the Fall 1984 course and that the ostensible reason for cancellation, namely, low enrolment, was a subterfuge. Further, the reasons given for the cancellation of the Winter 1985 courses were not credible but, it was asserted, the real reason reflected Hopkins' involvement with the labour council recommendation for the Board of Governor's appointment and his union activity.
2$. Counsel for the respondent agreed that there was no reverse onus under the CCBA and distinguished those cases cited by the complainants. Counsel reviewed the evidence and submitted that the College had responded to the impact of the strike on its operations in a bona fide matter without anti-union motive, referring to the reasoning in: Webster & Horsfall (Canada) Ltd., [1969] OLRB Rep. Sept. 780; Mini-Skool Ltd., [1983] OLRB Rep. September 1514. Counsel stressed that operational decision to replace and cancel suspended courses was taken October 31, 1984 and the process of notifying full-time faculty of the replacements/cancellations was virtually complete before the legislation was enacted. Moreover, counsel emphasized the context in which many of the decisions had to be taken, namely, the disruption and pressures occasioned by the strike, and argued that the details pointed to by counsel for the complainants reflected the benefit of hindsight. It was argued that the discrepancies in the testimony of the respondent's witnesses were minor and to be expected and that the documentary evidence well in advance of the legislation supported the College's position. Counsel also noted that all full-time faculty whose courses had been cancelled (except for Hopkins) had been offered extension courses in the Winter 1985 semester, although some declined. With respect to Hopkins, counsel asserted Hopkins should not be regarded as a credible witness. Rather, the accounts given by the respondent's witnesses indicated that the cancellation in the Fall 1984 semester and Crombie's decision not to permit Hopkins to teach in the Winter 1985 term were in no way related to Hopkins' union activities, including his commentary on the labour representative on the Board of Governors.
Counsel for the respondent also raised a preliminary objection that there was no prima facie case. The Board reserved its ruling on the motion. Counsel argued that the effect of a unique provision in section 59(2) of the CCBA whereby all employees in the bargaining unit were deemed to be on strike was to render it impossible for an employer to violate section 75(2)(c). That is, given the employees were deemed to be on strike, an employer could not compel the employees not to exercise their rights, including the right to strike. Counsel for the complainants opposed that position arguing, inter alia, that the complainants also raised section 75(2)(a). It was contended the legislation did not intend to permit an employer to simply delay a "penalty" until after a strike without violating the CCBA as, at the very least, such a "message" could well inhibit future exercise of an employee's rights. In reply, counsel for the respondent noted that the tense of section 75(2)(a), "is exercising" did not support the complainant's submissions.
Sections 65 and 75 of the CCBA read:
Every person is free to join an employee organization of his own choice and to participate in its lawful activities.
75.-(1) No person who is acting on behalf of the Council or an employer shall participate in or interfere with the selection, formation or administration of an employee organization or the representation of employees by such an organization, but nothing in this section shall be deemed to deprive the Council or an employer or any person acting on behalf of the Council or an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.
(2) The Council, an employer or any person acting on behalf of an employer shall not,
(a) refuse to employ or to continue to employ or discriminate against a person with regard to employment or any term or condition of employment because the person is exercising any right under this Act or is or is not a member of an employee organization;
(b) impose any condition on an appointment or in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of an employee organization or exercising any right under this Act;
(c) seek by intimidation, by threat of dismissal or by any other kind of threat or by the imposition of a pecuniary or any other penalty or by any other means to compel an employee to become or refrain from becoming or to continue or cease to be a member of an employee organization, or to refrain from exercising any other right under this Act,
but no person shall be deemed to have contravened this subsection by reason of any act or thing done or omitted in relation to a person employed in a managerial or confidential capacity.
(3) No person or employee organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of an employee organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
It is not in dispute that the CCBA does not contain a reverse onus provision comparable to section 89(5) of the Labour Relations Act. Nonetheless, the Board must determine whether the employer's conduct which has been impugned resulted, even in part, from anti-union animus regardless of whether there does or does not exist just cause for that conduct: Durham College of Applied Arts and Technology, [1979] OLRB Rep. Nov. 1077. In reaching that determination, on the balance of probabilities, the Board must take into account the circumstances of each case and make all reasonable inferences from the evidence: National Automatic Vending Co., supra.
The replacement of courses taught by full-time faculty in the extension program, where possible, and the cancellation of the remaining courses does give rise to a suspicion the decision to so was at least partially influenced by anti-union motive, that is, in response to the legal strike by those full-time faculty. That suspicion is somewhat enhanced given the timing of the cancellations, namely, in close conjunction with the legislation ending the strike and ordering the teachers back to work. Moreover, in Wicke's course, for example, the bulk of the course, because of the practicum component, had already been completed and the course itself would likely have been finished in its entirety before the Christmas 1984 break. That course was also required for the technician’s diploma. Yet, the cancellation of this course was not rescinded. In this context, then, the Board must subject the reasons proffered by the College and the circumstances to the most rigorous scrutiny.
The legal strike by full-time faculty commenced October 17, 1984. By the virtue of the CCBA, faculty were deemed to be on strike and payment of wages and benefits was prohibited. Those courses taught by full-time faculty in the extension program were also suspended. In the Board's view, it is improbable that Del Missier told students in the classes which were to be suspended that, following the strike, the faculty would just "pick up where they left off'. Del Missier's recollection that she reiterated the Colleges's official position is preferred. At that point, of course, the eventual duration of the strike was unknown. Moreover, the official position of the College was that students remained registered in the courses but, if the strike was lengthy, they would be notified about applying for a refund (see paragraph 7). Thus, even at the strike's commencement, there was a prospect of a refund to students (implying a course cancellation) depending on the length of the strike.
The steps taken by the College to monitor those extension courses which were continued, to establish an evaluation committee to regularly assess the impact of the strike and to set a date in two weeks to review matters if the strike was continuing, in the Board's opinion, were reasonable and untainted by improper motive. That two week review occurred on October 31, 1984 in a meeting between Crombie and Derks where Crombie decided to initiate the process to seek replacements for the suspended courses. At that date, the strike was still extant and there was no prospect of an early cessation to the work stoppage through negotiation or legislation. The Board finds nothing contrary to the CCBA in Crombie's decision. The College was merely acting, as it was entitled, to minimize the disruption to its operation as a result of the strike through bona fide means. According to Crombie, the decision responded to a number of complaints by students seeking completion of the courses by Christmas, that is, Crombie felt the College should adopt that date as a target for completion of the suspended courses. For that to be realistic, the courses could be suspended no longer than necessary to get replacements. The Board does not regard the fact that a very few courses where replacements were found continued into early January once the Fall term was extended as casting doubt on the bona fides of the original decision. On November 2, following her meeting with Crombie, Del Missier commenced the implementation of the decision by contacting potential replacements. By the following Monday, November 5, a number of replacements had given commitments to complete the courses and, indeed, some had commenced teaching that week.
Late in the afternoon of Thursday, November 8, the back to work legislation was introduced. Earlier that day, Del Missier had commenced the unpleasant task of notifying full-time faculty of the cancellations or replacements. The Board has carefully reviewed the evidence as to when the College would have firm knowledge of the imminent end of the strike. In the Board's view, it is very unlikely the back to work legislation was known of before Thursday mid-day. However, the Board does not regard the precise timing of that awareness on Thursday or even late Wednesday as critical. Rather, the Board accepts Crombie's testimony that the cancellation decision was implicit in the replacement exercise. It is not logical to conclude otherwise. The College, in seeking replacements, was committed to resolving the matter of suspended courses through replacements wherever possible and cancellation where replacements could not be found. It is true that Derks and Del Missier placed the instructions to them to cancel the remaining courses on late Wednesday or early Thursday morning. The parallel process of the Registrar's office in notifying students of the cancellation also commenced in that time frame. But, Lake places his knowledge of the cancellation several days prior to that. The Board finds that the decision to seek replacements, which admittedly well pre-dated knowledge of the legislation, included the cancellation of those remaining courses implicitly. That that implication did not become an express instruction to Del Missier until November 7 or early on November 8 was not unreasonable or suspicious given that her energies until that point had been directed to finding as many replacements as possible.
The conclusion that the replacement/cancellation decision was not tainted by improper motive does not end the matter. The Board must still determine whether, once the legislation was introduced and/or enacted, the decision not to "replace the replacements" or, at least, to reinstate the suspended courses where no replacements were found was tainted by anti-union motive.
The Board concludes that the reasons given for not "replacing the replacements" constituted the sole rationale. That is, the College had just gone through the process of hiring replacements, those individuals had given commitments to complete the particular course involved for that term in admittedly difficult circumstances and the College did not consider it appropriate or seemly to renege on that contract. Further, the students had already been notified that the courses would continue and, in some instances, had agreed to a timetabling change to accommodate the replacement. As noted, some of the replacements had already commenced teaching by the date the legislation was enacted.
The Board is also satisfied that the decision not to rescind the cancellation directive for the remaining courses taught by full-time faculty was not influenced by improper motive. In the College's view, full-time faculty faced stressful circumstances in which to complete their normal teaching load given the legislated end to the strike and the abrupt order to resume classes. The College was focusing on the larger issue of restarting the regular program and, in comparison, the issue of the relatively few extension courses involved was not significant. The Board accepts Crombie's explanation that he generally was not aware of the details of some of the courses involved, such as that taught by Wicke, but that, when asked by Derks if the decision to cancel would be rescinded, concluded that, on grounds of overall fairness, the decision to cancel should be upheld. The College's explanation for the cancellation must be judged in the context of the circumstances at the time, not with the benefit of hindsight. Whether there were errors or whether the benefit of hindsight would have resulted in a different decision is not the issue. Rather, the bona fides of the decision at the time is the question before the Board. The Board finds that the decision not to rescind the cancellation order was based on a desire for consistency amongst courses for which no replacements had been found and not to penalize the faculty involved. Further, it should be stressed that students had already been notified of the cancellations and refunds were in process. The Board also comments that, in its view, the explanations given by the various witnesses for the College were not inconsistent, although the emphasis on various aspects may well have reflected the particular viewpoint of each witness. Finally, the Board notes that all of the complainants (except Hopkins) were offered teaching in the extension program in the Winter 1985 session and that, in fact, most have taught since the Fall 1984 semester.
The Board next examines the circumstances in which Hopkins' courses in the Fall 1984 semester and the Winter 1985 semester were cancelled. As noted in paragraphs 17 and 18, the Board accepts Del Missier's account of her conversations with Hopkins and the latter's assurance that there would be ten registrants in the course to comply with the policy. It was reasonable for Del Missier to rely on that assurance to authorize a course and not to "double-check" with the Registrar. The review of all extension programs revealed only eight students in Chemistry I. The Board finds that the decision to cancel Hopkins' course was solely because of the low enrolment. Further, the failure to notify Hopkins immediately was reasonable given the ongoing strike.
37L The Board does not accept a sinister interpretation of the fact that Del Missier's handwritten notes in preparation for the course listing/replacement exercise were written in different coloured pens and in pencil, nor in the fact that the course listing (Exhibit 21) included Chemistry I with a notation "This course has officially been cancelled; insufficient enrolment". Del Missier testified there were frequent telephone calls and other interruptions when she prepared such reports or lists. On returning to her task, she simply picked up a writing instrument without regard to its colour to prepare her rough drafts. This explanation is compelling given the Board's assessment of Del Missier as a witness and a review of her other rough work tendered in evidence. Moreover, the Board is of the view that the inclusion of Chemistry I in the listing with the appropriate explanation on the face of the document reflects no more than Del Missier's thoroughness in preparing a schedule of all courses suspended because of the strike. It was not an unreasonable act to include a course which was suspended at the start of the strike and which was later cancelled.
The Board finds that the opposition by Derks and Del Missier to Hopkins' teaching in the Winter 1985 semester was based on their view of his conduct regarding the Fall 1984 enrolment in Chemistry I and his past relationship with the support staff. Their position regarding Hopkins was clear in the December meeting with Lake to review the Winter 1985 potential instructors, that is, before the "Board of Governors" issue arose. Moreover, both women testified they were unaware of Hopkins' strike activity beyond seeing Hopkins and other full-time faculty on the picket line.
When Derks learned Hopkins was scheduled to teach one course and share another in the Winter 1985 term, the situation was brought to Crombie's attention. The Board has no doubt that Crombie's decision that Hopkins was not to teach was based on Crombie's assessment that Hopkins' conduct overall in dealing with the extension staff had not been professional or appropriate. In Crombie's words, the duties of Derks and Del Missier were tough enough without having to put up with that foolishness. As stated in paragraph 28, the establishment by the employer of "just cause" for its action is neither required nor sufficient if the real reasons included anti-union animus. In the instant case, the Board finds that Crombie's decision to support the position of Derks and Del Missier was unrelated to Hopkins' union activity or the Board of Governors' position. Indeed, the evidence indicated that other full-time faculty extensively involved with the strike and related union activity had not been penalized for such activity. With respect to the Board of Governor's appointment, in the Board's view, there was no causal link established between that issue and Crombie's decision. Rather, the recommendation for the labour appointment was apparently quite controversial within the labour council and, further, the Council of Regents, on at least one occasion in the past, had not followed recommendations from similar groups. The Board notes that Hopkins was informed that he should see Crombie directly to learn the reasons for the decision but Hopkins chose not to do so. It is also clear that Hopkins preferred to read into Lake's non-committal responses during their conversations in late January/early February 1985 a conclusion that he (Hopkins) was the victim of anti-union feeling rather than meeting Crombie, as directed, to learn the actual reasons. Parenthetically, the Board notes the Chemistry I and Physics I courses had well below the minimum number of registrants. The Board comments, too, that, following discussions between Crombie, Lake and Derks in August 1985 and the ensuing memo adverting to the earlier matters, Hopkins was offered Chemistry I in the Fall 1985 term although this course was eventually cancelled for low enrolment.
The Board need deal only briefly with two other matters. There was a discussion between Crombie, Lake and Wilson in October 1984 dealing with the issue of whether full-time faculty should teach in the extension program. The question of full-time faculty in the extension program had been raised periodically. According to the resulting policy, full-time faculty were generally to be limited to one extension course per semester and any additional course, where there was no alternative instructor, for example, required the approval of the appropriate divisional director. In the Board's view, this matter is not relevant to the issue before the Board as the consideration of this policy was unrelated to the strike and the replacement/cancellation exercise. Secondly, with respect to the respondent's preliminary motion, the Board doubts that section 59(2) of the CCBA precludes the violation of section 75(2) as asserted by the respondent. The adoption of the respondent's argument, in the Board's opinion, would emasculate the protections accorded the employees in section 75 of the CCBA. In view of the Board's decision on the merits, however, the Board need not finally determine this preliminary objection.
In summary, having reviewed the testimony, including the extensive documentary evidence, the Board finds that neither the cancellation of the courses taught by full-time faculty in the extension program in the Fall 1984 semester nor the decision that Hopkins should not teach in the Winter 1985 term was tainted by anti-union motive. For the foregoing reasons, then, the complaints are hereby dismissed.