[1986] OLRB Rep. October 1346
1250-86-R; 1453-86-U; 2164-85-U; 1479-86-FC Michel LeBlanc, Applicant, v. Sudbury Mine Mill & Smelter Workers Union Local 598, Respondent, v. Mansour Rockbolting Limited & Mansour Mining Equipment Supply and Repair Inc., Intervener; Sudbury Mine Mill & Smelter Workers Union Local 598 and Employees of the Respondent, Complainants, v. Mansour Rockbolting Limited & Mansour Mining Equipment Supply and Repair Inc., Respondents; Sudbury Mine Mill & Smelter Workers Union Local 598, Applicant, v. Mansour Rockbolting Limited & Mansour Mining Equipment Supply and Repair Inc., Respondents
BEFORE: Patricia Hughes, Vice-Chairman, and Board Members D. H. Blair and H. Kobryn.
APPEARANCES: Richard A. Humphrey and Michel LeBlanc for Michel LeBlanc; G. Joe Zito and Roland K. Gauthier for Sudbury Mine Mill & Smelter Workers Union Local 598; Claude MacMillan, Milad Mansour and Rose Mensour for Mansour Rockbolting Limited & Mansour Mining Equipment Supply and Repair Inc.
DECISION OF THE BOARD; October 6, 1986 as amended October 24, 1986
The above files were all listed for hearing during the same four-day period. The applicant union ("the union" or "Local 598") originally brought several unfair labour practice allegations under section 89 of the Labour Relations Act ("the Act") against the respondent employer ("Mansour" or "Mansour Mining" or "the employer") on November 19, 1985 ("the first section 89 complaint") (File No. 2164-85-U); the union subsequently filed additional section 89 allegations on August 14, 1986 ("the second section 89 complaint") (File No. 1453-86-U). On July 17, 1986, Michel LeBlanc ("LeBlanc") filed an application under section 57 of the Act on behalf of a group of employees seeking decertification of the union as bargaining agent for the employees at Mansour Mining ("the termination application") (File No. 1250-86-R). On August 18, 1986, the union filed an application seeking a direction of settlement of a first collective agreement by arbitration ("the first contract application") (File No. 1479-86-FC).
A hearing into the first section 89 complaint began on May 8, 1986, at which several exhibits were filed by the union and the employer. As a result of intervening events, the hearing of the first section 89 complaint began afresh and accordingly, the May 8, 1986 exhibits are hereby vacated.
At the outset of the hearing, we sought submissions from counsel for the union, the employer and LeBlanc with respect to the appropriate manner in which to deal with these applications. Because an application for first contract was involved, we had to consider section 40a (22) of the Act which states as follows:
Notwithstanding subsection (2), where an application under subsection (1) has been filed with the Board and a final decision on the application has not been issued by it and there has also been filed with the Board, either or both,
(a) an application for a declaration that the trade union no longer represents the employees in the bargaining unit; and
(b) an application for certification by another trade union as bargaining agent for employees in the bargaining unit,
the Board shall consider the applications in the order that it considers appropriate and if it grants one of the applications, it shall dismiss any other application described in this section that remains unconsidered.
In the matters before us, a first contract application has been filed with the Board; at the time of this hearing, no final decision has been issued on the first contract application by the Board; and an application for a declaration that the trade union no longer represents the employees in the bargaining unit has been filed. Counsel for the employer and the group of employees submitted that the termination application should be heard first; counsel for the union was satisfied that the termination application be heard first as long as we reserved our decision on it until we had heard all the evidence on all the applications. All parties agreed to this approach which we considered to be consistent with the requirements of section 40a(22). It was evident from the applications, and was agreed by counsel, that the evidence in all the applications was highly interrelated.
Accordingly, we ruled that the applications would be heard and decisions reached as follows: the termination application would be heard first, but we would reserve our decision on that matter until we had heard all evidence with respect to the first contract application and the section 89 complaints. We explained that if we ordered a representation vote and the vote was in opposition to the union, we would be required by section 40a(22) of the Act to dismiss the first contract application; if we dismissed the termination application, we would then consider and reach a decision on the first contract application; and that the nature of our rulings on the section 89 complaints would depend on the outcome of the termination and first contract applications.
We emphasize that our ruling with respect to the order in which these matters would be heard depends on the circumstances of this case. We emphasize further that it was possible in this case to integrate the evidence in the complaints under section 89 with the termination and first contract applications. Counsel had no evidence to call which lay outside the confines of those applications. Counsel were further able to make submissions on all these applications in a short period of time. However, there may be cases in which it is not possible to hear all section 89 evidence, given the time limits imposed by the legislation on first contract application cases. In those cases, whether evidence or submissions go to liability or to remedy, it may be necessary for the Board to reserve on the section 89 complaints and to hear further evidence subsequently.
Our decisions on the termination and first contract applications were released September 15, 1986. We dismissed the termination application and we directed the settlement of a first contract by arbitration. We reserved further on the section 89 complaints. We now set out reasons for our decision in each matter.
The history of this case should be outlined briefly. Milad Mansour, President and owner of Mansour Mining, has owned his company for about 12 years. Prior to that, he was a labourer at Inco. He acquired equipment and began straightening steel for Inco after his regular work hours, first hiring part-time and then full-time assistance, at a location on Highway 69. He subsequently quit Inco and opened his second location in Coniston, just outside Sudbury. In the early summer of 1984, he purchased property on LaSalle Boulevard in Sudbury, and commenced building new facilities there late in 1984 or early 1985. He moved out of the Highway 69 plant and into LaSalle at the end of February. Employees were transferred from Coniston to the new LaSalle location after June 23, 1986. These applications are confined to the Coniston and LaSalle locations. In the last weeks of February 1985, one of the employees, Andrew Paquette, telephoned Richard Briggs, President of Local 598, with respect to joining a union. By March 6, 1985, cards had been signed and Briggs filled out an application for certification.
The union was certified May 3, 1985 (File No. 3313-84-R); the panel hearing the certification application dismissed a petition by employees in opposition to certification of the union ("the certification petition") on the basis that it was untimely. The union subsequently sent out a notice to bargain to the employer and eventually bargaining began and proceeded for a time. However, problems arose and in November of 1985, the union brought the first section 89 complaint, but because it seemed the employer was prepared to bargain, the union subsequently requested the Board not to proceed. When no progress was made, the union decided to pursue its complaint and a differently constituted panel began to hear those allegations on May 8, 1986. Continuation of the hearing was scheduled for June 23rd and 24th, 1986; however, in the interval, an application for termination of the union's bargaining rights was filed by Michel LeBlanc on April 22, 1986 ("the April termination application" or "the first termination petition") (File No. 0362-86-R). At the commencement of the June 23rd hearing, the parties sought to have the two matters heard together and the matters were consolidated, pursuant to an interim settlement between the union and the employer ("the June 23rd settlement"), by an oral ruling at the hearing, confirmed by written decision dated July 3, 1986. These matters were thereby adjourned and were scheduled to be heard by another panel on August 19th, 20th and 21st, 1986. On the first day of that hearing, the April application for termination was dismissed as untimely, confirmed in written decision dated August 25, 1986. A second application for termination by LeBlanc had been filed July 17, 1986 ("the July termination application" or "the second termination petition"). Before the dates with respect to that application had been set, the application for a first contract was filed on August 18, 1986, and mindful of the time limits imposed by section 40a(2) of the Act with respect to first contract applications, the Board scheduled the first contract application to be heard September 8 to 11, 1986 by another panel; all other matters were also scheduled for that period.
We now give our reasons for dismissing the termination application.
With respect to the July termination application, which is the application before us, initially a single document with seven signatures dated July 16, 1986,was submitted. Before the terminal date of August 28, 1986, five additional statements of desire were filed; two of these were dated August 22, 1986 and three were dated August 26, 1986. The application was timely, having been filed more than one year after certification of the union which has not made a collective agreement with the employer, pursuant to section 57(1) of the Act, and having been filed more than thirty days after the Minister released a notice that he did not consider it advisable to appoint a conciliation board (issued May 13, 1986), pursuant to section 61(1)(b) of the Act. Accordingly, since twelve signatories constitute more than forty-five per cent of the employees in the bargaining unit, the requirements for a representation vote, as set out in section 57(3) are satisfied if the Board finds the signatures to be a voluntary expression of the wishes of the employees. Therefore, the Board is required to satisfy itself that the petitions constitute a voluntary expression of the signatories' wishes and if the Board is not so satisfied, it will dismiss the decertification application. The onus of establishing voluntariness lies on the applicant.
In determining whether a termination petition does reflect the employees' wishes, the Board may look at a variety of factors relevant to the likelihood of an employee perception that their signing or not signing the petition would come to the attention of the employer. While direct management interference will almost certainly be fatal to a petition, indirect interference may also lead the Board to dismiss the application. It is not surprising that an employer might favour decertification of the union: mere opposition to a union does not pose difficulty. But actual involvement by management in a petition for decertification or communications, direct or indirect, that failure to sign the petition carries with it negative employment consequences or which indicates that rejection of the union will bring forth benefits goes beyond mere opposition. Such conduct does not have to be contemporaneous with the organization, preparation or circulation of the petition; it can occur before - but it is required that either contemporaneous or prior conduct can reasonably be said to indicate to the employees that their support or non-support of a petition may influence their working conditions. Furthermore, management influence does not have to be actual; it is the perception of the employees which counts. The issue is essentially this: is the climate in the workplace, over which the employer has control, such that the Board has a concern that the employees will not be able to express their wishes freely? Thus the relative numbers of union supporters and non-supporters do not determine the outcome of the termination application since the Board must be satisfied that the non-supporters have made their decision uninfluenced by employer conduct, as discussed above.
In some cases, one factor may be sufficient to satisfy the Board that the signatures on the petition are not a voluntary expression of the employees' wishes; in other cases, several factors may interact with each other and while each factor may not separately establish that the signatures are not a voluntary expression, cumulatively they may do so: Otto's Deli, [1980] OLRB Rep. Nov. 1673; there the Board stated at paragraph 22 that "[n]one of [the factors involved in the case] operate independently and in our view their cumulative effect would be sufficient to suggest to the average employee that their employer actively wish them to reject their union and that they might suffer adverse employment consequences if they chose not to do so". In this case, the cumulative effect of several events satisfy us that the second termination petition is not a voluntary expression of the employees' wishes. These events are the $1.00 raise and benefit package which the employer gave the employees subsequent to certification and the resulting employee perception of the union's inability to represent them adequately; comments by the employer about the union and other unilateral changes in working conditions; the separation of the workers into those supporting and those not supporting the union; and the circumstances of the first termination petition which in our view taints the second termination petition.
Although the evidence on this matter was conflicting, we find that prior to certification of the union, the employees then employed at Mansour Mining had a meeting on April 1,1985, with Mansour and his lawyer, Claude MacMillan, at which Mansour indicated that he would give them $1.00 an hour raise and a benefit package if the employees did not join the union. The union was certified, despite the petition filed by the employees in opposition to certification, which was signed about half an hour after the meeting had concluded. At the certification hearing the petition was found to be untimely. However, those promises remained a topic of discussion and suggested to the employees that they did not need a union. This view was confirmed when they again approached Mansour and demanded the raise later in May. Mansour granted the raise and benefit package directly to the employees as of June 1, 1985. (The employees continue to receive the $1.00 an hour increase, but Mansour stopped paying benefits sometime in September 1985. However, the $1.00 increase on the hourly wage rate has now become "other", thereby leaving the employees at a lower base rate.) On October 8, 1985, the union held a meeting with the employees to explain the progress in negotiations to that date. At that meeting the union's business agent, Roland Gauthier, told the employees that the union thought a raise of 50 cents an hour was consistent with the employer's financial position and a first contract. The union believed that the employees were still earning their old wage rates, having not been informed by the employer of the new rates. The employees were hardly impressed with the union's proposal, since they were already receiving the extra $1.00 an hour. Only after this meeting did two of the employees, Andrew Paquette and Michel Landry, tell Gauthier about the $1.00 raise.
The importance of "well-timed" "unilateral" wage increases was noted by the Board in Otto's Deli, supra. We recognize that the July termination application came over a year after the increase had been granted and that even the April termination application was filed nearly a year after the increase, and that most of the signatories of the April and July termination application petitions had been hired after certification. We are also aware that of the six original employees, four have remained union supporters and only two supported decertification. Nevertheless, in our view, the unilateral $1.00 rate remained a factor; its impact continued to be felt. The employees were confused. Landry admitted he was still confused at the time of the hearing. Furthermore, LeBlanc admitted that the employer's promises were still in his mind when he began to collect signatures for the second termination petition. Most importantly, we believe that the granting of the increase gave a lasting impression that the union could not adequately represent the employees and was, indeed, incompetent. It is not unreasonable to conclude that the employees were under the impression that the union could do little for them, an impression reinforced by the lack of a collective agreement.
The effect of the increase must also be coupled with other messages from the employer that support of the union was not advantageous to the employees.
Paul Heddersen began work at Mansour Mining on November 11, 1985, several months after the union had been certified and after the $1.00 raise had been put into effect. About three and a half months after he began, he asked Peter Mansour, a member of management, for a raise. Peter Mansour, according to Heddersen, told him that he would arrange for a raise as long as he would stay away from the union and keep it between themselves and Milad Mansour; if he joined the union, he would receive nothing. About two weeks later, Heddersen was put on salary; at a union meeting which he subsequently attended, he was told that Mansour was putting employees on salary to make them staff and ineligible for union membership. Heddersen tried to go back to being an hourly-paid employee, but Mansour told him that he could leave if he was not prepared to stay on salary. Heddersen testified that he went on salary "to keep my job". Donald Pilon, one of the original six employees, was also put on salary. In neither case was there any change in their job responsibilities, duties or authority. In addition, both Heddersen and Pilon were given unilateral 50 cents an hour increases by the employer.
Ralph Wirnsperger started at Mansour Mining on May 1, 1986, went on strike June 9, 1986, was not recalled after the strike and received a separation slip sometime after June 23, 1986. He says that when he started, he asked Mansour if there would be union dues payable and that Mansour answered "no union, I don't want a union". Counsel for the union argued that this indicated that Mansour told Wirnsperger that there was not a union at Mansour Mining when there was; having heard Mansour testify, it is just as likely that he was expressing his opposition to the union, rather than misleading Wirnsperger about the presence of the union. In any case, it is another instance of Mansour's difficulty in coming to terms with the presence of the union at his company. Wirnsperger found out about the union when he was transferred to the Coniston plant; there he was asked by Andrew Paquette if he wanted to join the union and he did so.
By the time LeBlanc collected signatures for the second termination petition, Mansour had separated union and non-union supporters. After the June 23rd settlement, the union supporters and non-supporters were placed on different shifts, half an hour apart, at the Coniston plant. A few weeks later, the non-supporters were moved to the new plant at LaSalle with far preferable facilities. Mansour claimed that the agreement between the parties required him to do that; however, a look at the agreement indicates that is not so. He also said he had to separate them because of the difficulties between them; we are cognizant of those difficulties, for which both groups must take some responsibility, but it remains that the result was to place union supporters in less advantageous conditions, either on regular afternoon shifts or in the old plant. Furthermore, just prior to the hearing, all four employees at Coniston, all union supporters because of the separation, had been laid off apparently because a broken saw meant no work for them, despite there being employees at LaSalle with less seniority. (These lay-offs were in apparent contravention of the June 23rd settlement which stated that there would be no lay-off without cause and that legitimate lay-offs would be in order of seniority.)
The Board has accepted as a principle that a previous petition found not to be voluntary may "taint" a subsequent petition, although certainly a second petition may not be so tainted. In Ontario Hospital Association (Blue Cross), [1980] OLRB Rep. Dec. 1759, the Board stated at paragraph 37:
while the N. J. Spivak Limited, [1977] OLRB Rep. July 462 and Mary Lockwood, [1979] OLRB Rep. Dec. 1172 cases make it clear that an earlier unacceptable petition need not "taint" a later one, at least where a significant hiatus occurs, the Board on numerous other occasions has in fact refused to recognize a petition on the ground that it has been "infected" by improper circumstances surrounding the taking of a previous petition (see Levi Strauss, [19721 OLRB Rep. Dec. 1042).
Limits to this concern were suggested by the Board in M. G. Burke Investments Ltd., [1979] OLRB Rep. Jan. 45 at paragraph 8, after it rejected a second petition because of the employer's involvement in a previous petition:
The Board, it should be made clear, is not saying that employer involvement in a previous termination application must forever taint the efforts of employees who decide later to make a subsequent one. There comes a point beyond which the influence of the employer will, in the absence of further involvement, be taken to have been dissipated. Where, however, as here, the second application is made within a few months of the first, and where, as here, it is made before the first is disposed of by an employee who has been involved in the earlier proceeding both as an originator and a witness, the Board will not lightly conclude that the employer's involvement is of no further effect.
We note that in this case the second termination petition was filed prior to the first termination application being heard and that Michel LeBlanc, who originated the second termination petition, also originated and circulated the April petition.
The first termination petition in this case was dismissed as being untimely. In Mary Lockwood, supra, the Board found a second petition to be voluntary and rejected the argument that the first petition was involuntary and tainted the second; it further stated that even if the first petition had been found to be involuntary, it would still have found the second petition to be a voluntary expression of the employees' wishes because of the circumstances of the case. However, the Board was prepared to consider the impact of the first petition even though it, like the April termination application in this case, had been dismissed as untimely. We ourselves heard evidence about the first termination petition and base our conclusions about whether the signatures were voluntary on that evidence.
With respect to the April petition, LeBlanc went into the Coniston shop while he was on workers' compensation. (In fact, during the period from January 1986 to August 1986, he was at work only for a two-week period in March. During the rest of the time, he was off work on workers' compensation, yet was in the forefront of the anti-union movement.) He approached each employee at work during working hours and obtained signatures from some of them. He spoke only to the employees he thought were against the union, except Michel Landry. LeBlanc had asked the employer's lawyer, MacMillan, for advice and MacMillan, after telling him he could not be involved, referred him to a lawyer named LeBlanc; Michel LeBlanc was not satisfied with him and, despite MacMillan's comment to him, felt he could return to MacMillan who then referred him to LeBlanc's current counsel. LeBlanc stated that he did not know that the company could not be involved, but could not similarly explain his second visit to MacMillan. The wording on this petition was given to him by LeBlanc, the lawyer, and the petition was typed by Michel LeBlanc's girlfriend. Michel LeBlanc apparently obtained the address of the Labour Relations Board from Rose Mensour, the company's secretary, although it is not clear from LeBlanc's testimony whether he called Mensour with respect to the April petition or the July petition. It is more consistent with LeBlanc's conduct and the fact that the second petition was largely under the control of LeBlanc's counsel that he called Mensour before obtaining signatures for the first petition.
In Parker's Dye Works & Cleaners Limited, Toronto, [1974] OLRB Rep. Dec. 859, the Board stated at paragraph 37 that "mere organization of a petition on employer premises and employer time is not in itself cause to set aside an otherwise voluntary statement of desire" and that "[i]ndeed, the origination, preparation and circulation of a petition in support of an application for termination may very well take place on company premises and with the knowledge of management but so long as the Board is satisfied that the statement filed is 'a voluntary expression' of employee desires, the Board will give effect to the statement". This statement must be read in conjunction with the Board's comments in The Journal Publishing Company of Ottawa, Limited, [1978] OLRB Rep. March 291 at paragraph 6 that "[i]f a petition has been circulated in a manner which would reasonably cause an employee to conclude that management was involved, and would become aware of who signed it and who did not the Board has generally been unable to find that the statement was voluntary" (also see Canadian Gypsum Company Limited, [1980] OLRB Rep. Oct. 1368 in which the circulation of the petition on company premises during working hours in the circumstances of that case resulted in the Board's not being satisfied that "there was not, on the part of the other employees, a perception that the petition ... was linked, or even directed, to management, and consequently that the identity of those who signed or did not sign would come to management's attention"). While the facts of each case are different, under all the circumstances, we conclude that the first petition was not a voluntary expression of the employees' wishes.
The second termination petition was filed three months after the first one and, as LeBlanc admitted, was intended to remedy the April petition; he testified that his lawyer had told him the second petition was designed "to play it safe" and that his lawyer had given him "some hints" as to what was wrong with the first one, including obtaining the signatures at the workplace. While still on workers' compensation, he again went to the workplace (this time the LaSalle plant) and spoke to all the employees there. He obtained the first seven signatures on a single document and says he made no promises to or threats against the signatories. He kept talking to the employees who had not signed and five more employees eventually signed individual statements of desire. All the employees signed in the office of LeBlanc's counsel, before work began. He denied that he was told by management to go to the employees and that he was intimidated or promised a reward in connection with talking to the employees. One employee who signed the second termination petition, testified he had done so "of his own free will". We have taken that testimony into consideration, weighing it against the various incidents which in our view established a climate laden with the employer's negative attitude towards the union.
We have doubt that the employees who signed the second termination petition had rid their minds of the inferences they could make from the way in which LeBlanc collected signatures for the first termination petition that management knew about the petition and approved it and that management might find out who signed and did not sign it. This carry-over, coupled with the fact that LeBlanc was again in the plant with respect to the second termination petition while he was on compensation (that fact alone would not have convinced us that the petition was involuntary since apparently "non-working" employees did visit their friends at work), lead us to conclude that the second termination petition was tainted by the circumstances surrounding the first.
We wish to make reference to two other issues which occupied much of counsels' efforts. The union alleges that LeBlanc told picketers on the LaSalle line that Mansour was paying the legal fees for the April termination application. We note that the direct relevance of this allegation goes to the voluntariness of the signatures on the first termination petition and not the second; since we have found the April application does not satisfy the test of voluntariness on other grounds, this added factor would at best confirm that conclusion and we accordingly find no need to rule on this issue. There was also evidence led with respect to the union's attempting to convince LeBlanc and Landry to withdraw the petition or sign a revocation. Whatever efforts the union made were unsuccessful. However, there was no allegation of intimidation by the union and nothing prevents their trying to influence the employees in non-coercive ways.
Taking into account the lingering impact of the employer's conduct, the presence of LeBlanc in the plant while he was on compensation, the separation of union supporters and nonsupporters and the effect of the April petition which we find was not a voluntary expression of the employees' wishes, we find that the applicant in the termination application has not satisfied us that the July signatures were a voluntary expression of the employees' wishes. For all the reasons noted above, we hereby dismiss the application for termination.
We are therefore required to consider whether the circumstances of this case satisfy any of the criteria set out in section 40a(2) of the Act which requires us to direct the settlement of a first collective agreement by arbitration where any one or more of the criteria are met.
Section 40a(1) and (2) read as follows:
(1) Where the parties are unable to effect a first collective agreement and the Minister has released a notice that it is not considered advisable to appoint a conciliation board or the Minister has released the report of a conciliation board, either party may apply to the Board to direct the settlement of a first collective agreement by arbitration.
(2) The Board shall consider and make its decision on an application under subsection (1) within thirty days of receiving the application and it shall direct the settlement of a first collective agreement by arbitration where, irrespective of whether section 15 [which imposes the duty to bargain in good faith and to make every reasonable effort to make a collective agreement] has been contravened, it appears to the Board that the process of collective bargaining has been unsuccessful because of,
(a) the refusal of the employer to recognize the bargaining authority of the trade union;
(b) the uncompromising nature of any bargaining position adopted by the respondent without reasonable justification;
(c) the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement; or
(d) any other reason the Board considers relevant.
Section 40a manifests an expectation that if the parties are able to transcend this initial hurdle in their relationship which prevents their reaching a collective agreement, they may be able to develop a healthy collective bargaining relationship. By virtue of section 40a(18), a collective agreement is effective for two years, thereby giving the parties two years to stabilize their relationship. In some cases, the parties involved in a first contract application may be experienced bargainers, but because of circumstances which fit within section 40a(2) have not been able to reach an agreement. In other cases, one or both parties may be inexperienced and as a consequence one of the conditions set out in section 40a(2) results. In the instant case, the union is an experienced participant in labour relations; the employer is inexperienced and, it appears, not fully appreciative of the obligations imposed on him by the Labour Relations Act of this province. This will not be an unusual situation for small employers such as Mansour Mining which has approximately fifteen employees. The size of the employer does not absolve him of the responsibility of acquainting himself with his responsibilities, but there may well be cases, as here, where the employer has received poor advice coupled with his own lack of understanding of the Act; in such cases, the imposition of a two-year collective agreement may constitute an environment conducive to the parties establishing satisfactory relations. There may also be situations in which the employer's actions have been instrumental in creating such dissension among the employees that the union has been placed at a disadvantage in negotiating a contract; in such cases, the imposition of a collective agreement may provide the impetus necessary to resolve such difficulties, permitting the parties (and the employees) to get on with the next matters at hand. The common thread underlying these situations is the hope that imposing a collective agreement will leave the parties free to devote their energies to learning how to co-operate with each other and will give the employees an opportunity to learn about union representation, both in a calmer and more stable atmosphere.
It is not necessary to decide in this case whether such factors constitute a reason for directing settlement of a first contract by arbitration, or simply constitute a background against which the criteria are assessed~ since we believe that bargaining broke down because of the failure of the employer to make expeditious efforts to conclude a collective agreement.
The parties' initial efforts at negotiating appeared to be achieving results. After its certification on May 3, 1985, the union, through Roland Gauthier, Local 598's business agent since June 1984, wrote to Mansour, the employer, on May 13, 1985, requesting that negotiations begin. He received no reply to that letter and sent another one to Claude MacMillan on June 25, 1985 who responded on July 3, 1985. On July 23, 1985, Gauthier and Briggs, President of Local 598, met with Mansour and MacMillan in MacMillan's office. At that time, the union gave the employer its own proposals in draft form and requested a wage and benefit structure. The union was told that one employee earned $6.50 an hour, a few earned $5.50 and some were at $4.25 plus. These figures were close to what the employees themselves had told Gauthier their wages were at a meeting between the union and the employees on May 3, 1985. However, between May 3rd and July 23rd, Mansour had in fact given the employees a $1.00 raise. After some difficulties and misunderstandings on both sides, including a meeting which the union did not attend, the parties met on October 8, 1985. That meeting lasted about one and a half to two hours and the parties agreed to a good number of the union's draft proposals, but the monetary aspects were left outstanding.
MacMillan asked Gauthier to take the discussions they had had about wage increases back to the employees. That night Gauthier met with the employees and told them some of the difficulties with respect to the monetary issues; he took the position that because this was a first contract, the major issue should be job security and that they should look at best at a 4%-5% increase. When the employees argued that they wanted a $1.00 an hour increase and benefits, Gauthier told them they were not being realistic and again stressed security, as well as safety and health issues. After the meeting, Andrew Paquette and Michel Landry told him about the $1.00 increase. Gauthier testified that he was "fuming" because MacMillan had specifically asked him to go to the employees on the monetary matters. In November 1985, Gauthier filed a section 89 complaint with the Board. The parties held another meeting on November 20, 1985 and Gauthier again asked for the wage structure; again the employer gave him the figures which applied prior to the June 1st increase. After argument, they agreed to make a collective agreement retroactive to June 1, 1985, incorporating the new wage structure and look at a 5% increase in 1986. The employer said he would have to look at the costs of a benefit package and would get back to the union and MacMillan then suggested that the union redraft the proposals in "legal form", initialling those on which agreement had been reached. (The employer also asked for proposals with respect to part-time workers and for the reinstatement of two employees who had been laid off, Michael Paquette and Robert Gervais.) Gauthier redrafted the proposals and sent the resulting document to the employer. It is to be noted that not only did the employer not dispute the items which Gauthier initialled at the hearing, but stressed that agreement had been reached on them. Gauthier and MacMillan had another general meeting on December 5, 1985 and MacMillan told Gauthier that Mansour, who was not present, would receive a copy of the proposals. Meetings were scheduled for January 21 and 29, 1986, but were cancelled by MacMillan's office. It was not until February 20, 1986 that MacMillan told Gauthier that he would be able to give him Mansour's response by Wednesday of the following week. There was no response on the redrafted proposed agreement.
The union was beginning to become concerned about the passage of time, since the one-year period since the date of certification would soon expire and there would be no collective agreement. The union requested a conciliation officer and Gauthier delivered the notice, dated February 28, 1986, by hand to Mansour and MacMillan. At the workplace, Gauthier met Mansour who asked him "what the hell's going on"; Gauthier responded in kind and Mansour said that he had never seen the December package of proposals. In fact, it seems that Mansour did receive the proposals; but he testified that he never read them, that they were simply another piece of paper on his desk. There was no evidence that MacMillan indicated to Mansour the importance of reading and replying to the proposals. The conciliation officer was appointed for May 6, 1986 and arrangements were made for the meeting at the Holiday Inn. The union had booked a caucus room and waited there for the officer. When he did not arrive, Briggs made calls to Toronto to ensure that he had left. At 10:00 a.m., the time the meeting was to begin, Mansour and MacMillan came to the union's caucus room; MacMillan was upset that the officer had not arrived. MacMillan and Mansour left about 10:25 a.m., despite confirmation that the officer had been scheduled for this meeting. Shortly afterwards, the officer arrived, having been delayed by weather, and tried unsuccessfully to call MacMillan and Mansour. Andrew Paquette, also at the meeting, was sent to MacMillan's office to see if he was there, but was told by his secretary that he was at a meeting at the Holiday Inn. Gauthier and Briggs met with the officer for about five minutes at 2:00 p.m. and left the hotel about 3:00 p.m. No contact could be made with either MacMillan or Mansour during the day. A no board report was issued on May 13, 1986.
On June 9, 1986, the employees went on strike; however, most of the employees crossed the picket line and went in to work. Both Briggs and Mansour testified that during the strike, they discussed the situation, expressed a willingness to negotiate and Briggs suggested a mediator; Mansour agreed and they shook hands on it. Briggs called Toronto to arrange for a mediator and booked rooms, but Mansour called back and said his lawyer had told him not to negotiate. The next day, according to Briggs, Mansour told him that he was "in the middle" as a result of the filing of the April termination application. The strike was ended as a condition of the interim settlement reached by the parties on June 23, 1986, the date scheduled for the continuation of the hearing into the union's first section 89 complaint.
There were no further negotiations or other developments (except the July 16th termination application) until the union filed its first contract application on August 18, 1986.
From the inception of a union presence at Mansour Mining, Mansour appears to have been reluctant to recognize the union's role as the representative of his employees. We believe this is less a result of ill will than of lack of understanding. Unfortunately, the advice Mansour received with respect to bargaining, at least, was uninformed and rather than helping Mansour understand and come to terms with the new dynamic in his workplace, hindered it. It is clear that Mansour's general approach to life is to deal with matters directly; unfortunately, that led him to deal directly with the employees during April to June 1985; however, he may have dealt with the union if he had followed his own instincts, as indicated by his shaking hands with Briggs and agreeing to a mediator. But he must be held responsible for failing even to read the union's "legally" drafted proposals; the result of that failure was that bargaining broke down. We note, too, that the employer refused to negotiate the monetary issues because, he said, he did not know what his costs would be, since he was moving into his new premises. At the hearing, counsel for the employer evidently considered it to his client's advantage that this same justification had been made in June 1985 and continues to be made. We do not consider it an advantage; on the contrary, we consider it to be a factor contributing to our conclusion that the employer failed to make expeditious efforts to conclude a collective agreement. While we recognize that the LaSalle plant was not in real operation until July or thereabouts of this year, we are not satisfied that full operation was required in order to determine the salaries and cost of benefits for the employees already working for Mansour Mining, regardless of the location. Mansour admitted he did not know whether the union's proposals were reasonable or not. He was of the view that the union should not expect him to bargain when it showed dissatisfaction with him by calling in a third party, the conciliator (at which point he had had the redrafted proposals in his possession for over two and a half months).
Counsel for the union argues that all the criteria under section 40a(2) have been satisfied. Since it is our view that the employer, for the reasons indicated above, has not engaged in expeditious efforts to conclude a collective agreement, we comment only briefly on whether the other criteria have been satisfied within the meaning of section 40a(2). While Mansour did not appear at the beginning to recognize the bargaining authority of the union, he later entered into negotiations with the union. Counsel argued that the failure by Mansour to read the proposals constituted conduct encompassed by section 40a(2)(b). We do not agree that section 40a(2)(b) is meant to include that type of conduct, but rather refers to a "bargaining position". Such conduct is relevant to section 40a(2)(c), however. Counsel further argued that the unfair labour practices, the decertification application and the segregation of the employees all constitute "any other reason" the bargaining broke down. While these factors all contributed to the climate at the workplace and may be relevant to the union's inability to build support among new employees, they do not explain why the process of collective bargaining was unsuccessful. In this regard, we adopt the comments made by the Board in Nepean Roof Truss Limited, [1986] OLRB Rep. July 1005, that "section 40a contemplates a cause-and-effect oriented assessment".
After hearing all the evidence and seeing the major actors (union representatives and Mansour) testify, we are of the view that a collective agreement will permit the parties a new opportunity to try to establish a satisfactory working relationship. It will eliminate the confusion which has marked the union's presence at Mansour Mining, both with respect to Mansour himself and among the employees. We encourage Mansour to acquaint himself with the realities of bargaining and with the union's role at his company. We believe he wants to make his company work, not become embroiled in management-union games. And we believe the employees simply want to get on with their own jobs. Once a collective agreement is in place, all participants can continue with their responsibilities and obligations to each other.
Accordingly, we direct the settlement of a first collective agreement by arbitration.
There remain the section 89 allegations. We note that the employer has the onus on these issues by virtue of section 89(5) of the Act. Counsel for the union made submissions with respect to the section 89 complaints in conjunction with his submissions on the termination and first contract applications. With respect to the first section 89 complaint, the following allegations have been made: Donald Pilon was threatened by Mansour if he came to testify at the May 8, 1986 hearing; the $1.00 raise contravenes section 79 of the Act; and the failure to make reasonable effort to reach an agreement contravenes section 15 of the Act. In addition, originally there had been allegations with respect to Michael Paquette and Robert Gervais who had been laid off but were subsequently rehired as a consequence of the June 23rd settlement; the union still seeks compensation for their layoffs and reinstatement with security. The union further requests union dues for all employees and interest on the dues; compensation to members of the bargaining committee for the failure of the company to bargain in good faith plus expenses incurred by members of the bargaining committee. With respect to the second section 89 complaint, the union seeks compensation for Ralph Wirnsperger for the loss of his employment and reinstatement; claims an attempt to bribe Andrew Paquette was made with, respect to his not participating in the strike; seeks removal from the records of Pilon, Gervais, Andrew Paquette and Michael Paquette of Incident Reports dated July 10, 1986; and seeks a $1.00 raise for Michael Paquette who was never granted the $1.00 raise which went to the other employees.
We continue to reserve on the section 89 complaints in the hope that the parties can resolve them in the process of settling the first collective agreement and in the interests of releasing our reasons on other matters. However, we remain seized of these complaints with respect to liability and remedy, in accordance with submissions made to us during these days of hearing, should the parties not be able to reach an agreement.