Toronto Typographical Union, Local 91 v. Burlington Northern Air Freight (Canada) Ltd., 1986 CanLII 1518

[1986] OLRB Rep. 1628

0037-85-U; 0039-85-OH; 0446-85-U; 0819-86-FC Toronto Typographical Union, Local 91, Complainant, v. Burlington Northern Air Freight (Canada) Ltd., Respondent; Rick Best, Complainant, v. Burlington Northern Air Freight (Cana­da) Ltd., Respondent; Toronto Typographical Union, Local 91, Applicant, v. Burlington Northern Air Freight (Canada) Ltd., Respondent

BEFORE: Robert D. Howe, Vice-Chairman and Board Members I. M. Stamp and B. L. Arm­strong.

APPEARANCES: Nelson Roland, B. Cox-Graham, Douglas W. Grey and Joe Bigeau for the com­plainants and the applicant in File Nos. 0037-85-U, 0039-85-OH, and 0446-85-U; M. Cornish, Nel­son Roland, Susan Bazilli, Douglas W. Grey and Joe Bigeau for the applicant in File No. 0819-86-FC; D. L. Brisbin, J. Drake and William Machika for the respondent.

DECISION OF ROBERT D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARM­STRONG; December 19, 1986

1. File No. 0037-85-U is a complaint under section 89 of the Labour Relations Act in which the Toronto Typographical Union, Local 91 (also referred to in this decision as the "Union" and as "Local 91") alleges that the respondent, Burlington Northern Air Freight (Canada) Ltd. (also referred to in this decision as "Burlington" and as the "Company"), has contravened sections 3, 15, 64, 66, 67, 70, and 79 of the Act. File No. 0039-85-OH is a complaint by Rick Best against Bur­lington under section 24 of the Occupational Health and Safety Act (the "O.H.S.A."). File No. 0046-85-U is an application by the Union for relief under section 93 of the Act.

2. Those three matters were consolidated by the Board on June 5, 1985 through the fol­lowing oral ruling:

Having considered the submissions of counsel, we have concluded that this is an appropriate case in which to consolidate the three files (0037-85-U, 0039-85-OH, and 0446-85-U) and to call upon the complainants to proceed first with their evidence on all aspects of the consolidated proceedings which, although they include a number of allegations to which section 89(5) clearly applies, also include a number of significant allegations to which section 89(5) may not apply, such as the allegations that the Employer has bargained in bad faith and has attempted to undermine the Union by dealing directly with bargaining unit employees. In this regard, we would also note that sec­tion 89(5) does not apply to the Union's section 93 application. With respect to the additional allegations contained in Union counsel's letters of May 29 and June 3, 1985 which did not reach counsel for the Employer until the day before this hearing, we are not prepared to dismiss them as requested by counsel for the Employer, as we are of the view that all of the complainants' allegations should be heard together in a single consolidated proceeding. However, we are prepared to grant counsel's request for an adjournment in order to afford him an adequate opportunity to consult with his client in respect of those additional allegations and prepare a defence. Whether com­pensation should be awarded for the period of the adjournment is a matter which may be addressed in final argument, for decision by the Board on the basis of all of the circumstances. Union counsel has indicated that he may wish to file some further allegations after speaking with bargaining unit employees. Whether the Board will permit the complaint to be amended to include such further allegations is not a matter for decision in the abstract; it can only properly be decided in light of the nature of the allegations and the time at which the Union, through the exercise of due diligence, should rea­sonably have become aware of them. However, it would be in no one's inter­est to have a further adjournment of this matter so we trust that Union coun­sel will proceed with dispatch in investigating and filing any further allegations concerning events which have occurred to date.

3. At the request of the respondent and with the encouragement of the Board, counsel for the Union filed with the Board on July 17, 1985 a "comprehensive list of complaints", which incor­porated all of the allegations contained in the aforementioned application and complaints (with the exception of certain allegations that had been withdrawn by the Union with leave of the Board) and all of the additional allegations contained in Union counsel's letters of April 4, May 23, May 27, May 29, June 3, June 4, June 12, and July 4, 1985. When the hearing of these consolidated matters resumed on July 24, 1985, counsel for the respondent did not object to the inclusion of any of those allegations, with the exception of certain allegations concerning non-payment of vacation pay following the commencement of the lock-out described later in this decision. After hearing the brief submissions of counsel concerning that matter, the Board ruled that the allegations in question were properly before the Board, and that the matter of the remedy, if any, to be awarded in the event that they were proven was a matter for final argument.

4. The hearing of these consolidated matters on their merits commenced on July 24, 1985, and continued on September 16 and 25, October 24, and December 18 and 19, 1985. and on Janu­ary 7, 8, 9, and 20, April 7, 10, and 28, May 8 and 26, and June 5, 10, 11, 12, and 17, 1986. During those twenty days of hearing the Board heard oral evidence from twelve witnesses and received fifty-two exhibits. (Included in those exhibits were collective agreements that had been entered into by Burlington Northern Air Freight Inc., which is the respondent's parent company, and two Teamsters' locals, in respect of some of the parent company's employees in Minneapolis/St. Paul and Dallas/Forth Worth. (Those agreements were obtained by Local 91 through union channels and were received by the Board, over the objection of Company counsel, pursuant to our discre­tion under section 15(1) of the Statutory Powers Procedures Act. However, we have not found those agreements to be of assistance in adjudicating these matters and, accordingly, have not given them any weight.) On the agreement of the parties, we also took a view of the respondent's prem­ises to assist us in better understanding the evidence. We do not propose to detail that voluminous evidence in this decision. However, we have included in this decision our factual and legal conclu­sions, together with comments, where appropriate, concerning the credibility of particular witness­es. In making our findings of fact, we have carefully considered all of the oral and documentary evidence, the submissions of the parties concerning that evidence, and such factors as the firmness of the witnesses' respective memories, their ability to resist the influence of self-interest to modify their recollections, the consistency of their evidence, their capacity to express their recollections clearly, and their demeanour. We have also assessed what is most probable in the circumstances of the case, and what inferences may reasonably be drawn from the totality of the evidence.

5. File No. 0819-86-FC is an application under section 40a of the Act for a direction that a first collective agreement be settled by arbitration. That application was filed by the Union on June 20, 1986, and was heard by this panel of the Board on July 8, 1986. In a decision dated July 10, 1986 regarding that application, we wrote as follows:

6. This is an application under section 40a of the Labour Relations Act for a direction that a first collective agreement be settled by arbitration.

7. At the commencement of the hearing of this matter, the parties advised the Board through their counsel that they had agreed that all of the evidence which has been adduced before this panel of the Board in hearings with respect to Board File Nos. 0037-85-U, 0039-85-OH, and 0446-85-U, and the submissions of the parties in those proceedings~ should be applied to the instant application. After advising the Board of certain additional facts on which they had agreed, counsel proceeded to present their submissions con­cerning this application.

8. Having regard to the aforementioned evidence, agreed facts, and submis­sions of the parties, the Board, pursuant to section 40a(2) of the Labour Relations Act, hereby directs the settlement of a first collective agreement between the applicant and the respondent by arbitration. Our reasons for this decision will issue at a later date.

The Board's reasons for directing the settlement by arbitration of a first collective agreement between the Union and the Company will be included in this decision. (This panel of the Board subsequently arbitrated that collective agreement in a decision dated October 1, 1986, in File No. 1223-86-FCA, now reported at [1986] OLRB Rep. Oct. 1327.)

6. Burlington is a wholly owned subsidiary of Burlington Northern Air Freight Inc. Prior to becoming a wholly owned subsidiary of that American corporation, it was operated as a joint-venture of Burlington Northern Air Freight Inc. (also referred to in this decision as the "parent company") and Airgo Agency Limited ("Airgo"). Burlington provides "door to door" transporta­tion service in the highly competitive air express and air freight forwarding industry. Burlington's Toronto terminal (also referred to in this decision as the "station") is located near the Lester B. Pearson International Airport (the "Airport"). It ships to and receives from points throughout the world, but most of its volume comes from the U.S.A. and the Toronto area, for distribution throughout Canada. Included in the Toronto terminal is a distribution department in which bulk shipments from major customers such as I.B.M. and Hewlett-Packard are broken down and for­warded to various addresses. Jim Drake was the Managing Director of Burlington from 1983 until February of 1986 (when he commenced employment with a competitor). He commenced employ­ment with Burlington in 1978 as its Regional Manager for Canada, and subsequently became its Vice-President and General Manager. William Machika, the Company's Director of Service for Canada, reported directly to Mr. Drake at all material times.

7. The Union began to organize the Company's warehouse employees in July of 1984. Other unions had attempted to organize the warehouse employees in previous years but had not succeeded. During his cross-examination of Mr. Drake on May 8, 1986, Union counsel sought to question that witness about concessions which were allegedly given to employees in 1983 to stave off an attempt at unionization by another union. In upholding Company counsel's objection to that line of questioning, the Board ruled that the evidence which the Union was attempting to adduce with respect to that matter fell within the scope of section 72 of the Board's Rules of Procedure in that it involved allegations of "improper or irregular conduct" that had not been particularized, and "material fact[s] that had not been included in the ... complaint or in any document filed ... in respect of the complaint." In view of the stage of the proceedings at which the matter arose, and in view of the fact that Union counsel had already had an ample opportunity to particularize all of the allegations of improper and irregular conduct on which his client intended to rely, we unanimously declined to consent to such evidence being adduced, in the exercise of our discretion under section 72(2) and 72(4) of the Rules. In so ruling, we also expressed concern that to embark upon an enquiry into unparticularized events which might have occurred during previous organizing drives might well unduly expand the length of these already protraded proceedings.

8. The person in charge of the Union's organizing drive in respect of the warehouse employees of Burlington's Toronto terminal was Joe Bigeau. Mr. Bigeau is the Vice-President of Local 91 and is also an International Organizer assigned to that local. Prior to assuming those posi­tions, Mr. Bigeau was a representative of Teamsters Local 419. In that capacity he had negotiated approximately twenty collective agreements. After being contacted by Roy Burns, one of the res­pondent's two lead hands, Mr. Bigeau met with about a dozen Burlington employees at a hotel. Although Mr. Burns left the meeting early due to another commitment, the other employees remained and decided to proceed with an attempt to unionize. During the course of that meeting, Mr. Bigeau gave a number of (unsigned) Union membership cards to Rick Best, a driver/warehouseman who commenced employment with the Company in 1981. Mr. Best used those cards to sign up a number of Burlington's Toronto warehouse employees as Union members.

9. A major source of discontent among the employees, and one of the primary reasons they felt the need for union representation, was the fact that in addition to approximately fifteen full-time employees who worked five eight-hour days per week, the Company had approximately fifteen other employees, who prior to certification were referred to as "part-time employees", but subsequently came to be called "permanent irregular employees" by the Company. Many of those employees worked between thirty and forty hours per week (and sometimes more), but did not receive the benefits (such as O.H.I.P., life insurance, dental, optical, and pension plan coverage) that were provided at Company expense to full-time employees.

10. On August 6, 1984, Mr. Best, who was employed on the day shift, attended at the ware­house with two other day shift employees for approximately an hour to speak with evening shift employees about the benefits of unionization. On the following day, Mr. Best and the other two employees were given letters advising them that the Company would not in the future tolerate their being on Company premises while off shift. Copies of those letters were posted on the Com­pany bulletin board for the information of other employees. Similar conduct by persons circulating a petition in opposition to the Union did not attract any disciplinary action.

11. The Union filed an application for certification on August 8, 1984. On September 6, Mr. Machika wrote to the Union as follows:

Dear Sirs:

It is our company policy to review all newly hired staff within three months of employment and once again on their first anniversary with the company.

In reviewing our personnel files, we find that on some employees hired between February and the transmittal date (August 17th) missed their three month and yearly reviews [sic].

As this could be misconstrued as a change in working conditions, we would appreciate your con­currence with reviewing these employees at this time.

If no response is received on the above within 10 days, we will proceed with these reviews.

On September 17, Douglas Grey, the President of Local 91, responded to that letter by advising Mr. Machika in writing that the Union concurred with his request to proceed with Burlington's three-month and yearly reviews. However, as noted below, the Company did not do so.

12. The Union was certified by the Board, differently constituted, on November 15, 1984 (in an unreported decision in File No. 1198-84-R) for the following bargaining unit:

all employees of the respondent in the Municipality of Peel, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.

13. When it received notice from the Board of the Union's application for certification in August of 1984, the respondent, by virtue of section 79(2) of the Act, became legally obligated to refrain from altering terms and conditions of employment, and any rights or privileges of the employees, without the consent of the Union. As indicated later in this decision, following certifi­cation the Union gave Burlington notice to bargain under section 14 of the Act. Thus, the aforementioned obligation continued under section 79(1) until early May of 1985. In A E S Data Limited, [1979] OLRB Rep. May 368, the Board summarized the purpose and effect of the 'freeze' imposed by those provisions as follows:

14. The purpose of section 70 [now section 79] is to maintain the prior pattern of the employ­ment relationship, in its entirety, while the parties are negotiating for a collective agreement. This ensures that they will have a fixed basis from which to begin negotiations, and prevents uni­lateral alterations in the status quo which might give one party an unfair advantage either from the point of view of bargaining or of propaganda. The status quo includes not only the existing terms and conditions of employment but also any other established benefits which the employ­ees are accustomed to receive, and which can therefore be considered to be "privileges." It is clear that express promises, or a consistent pattern of employer conduct, can give rise to such privileges and that they are caught by the statutory freeze. It should be noted, however, that section 70 also freezes the "rights and privileges" of the employer. The section requires both par­ties to maintain the existing pattern of their relationship; that is, to conduct their business as before. In Spar Aerospace Products Limited, [1978] OLRB Rep. Oct. 859, the Board discussed the effect of section 70 in the following way:

the "business as before" approach does riot mean that an employer cannot continue to manage its operation. What it does mean is, simply, that an employer must con­tinue to run the operation according to the pattern established before the circum­stances giving rise to the freeze have occurred, providing a clearly identifiable point of departure for bargaining and eliminating the chilling effect that a withdrawal of expected benefits would have upon the representation of the employees by a trade union. The right to manage is maintained, qualified only by the condition that the operation be managed as before. Such a condition, in our view, cannot be regarded as unduly onerous in light of the fact that it is management which is in the best position to know whether it is in fact carrying out business as before. This is an approach, moreover, that cuts both ways, in some cases preserving an entrenched employer right and in other cases preserving an established employee benefit.

(See also K-Mart Canada Limited, [1982] OLRB Rep. Jan. 64, and the decisions cited in that case.) More recently, the Board has also found it appropriate to consider the reasonable expecta­tions of employees in determining rights and privileges which are frozen by section 79: see, for example, W. H. Smith Canada Ltd., [1986] OLRB Rep. June 920; Forintek Canada Corp., [1986] OLRB Rep. Apr. 453 and Simpsons Limited, [1985] OLRB Rep. Apr. 594. A finding of anti-union motivation is not essential in the context of section 79 as it is a strict liability provision.

14. Prior to the certification of the Union, the Company had an established practice respecting bi-annual shift bids. In the early spring and late fall of each year, the Company posted all of the full-time positions in the warehouse by classification and shift. That posting would remain up for a week, during which employees could fill in their choices. The week after the posting was taken down, employees would be assigned on the basis of seniority to the shifts which they had chosen. Following certification, the shift bids were not posted at the normal time. After employees complained to management about the matter, the shift bids were posted two or three weeks later. The posting remained up for two weeks instead of the usual one-week period. Although employees filled in their choices, the Company left the employees on their existing shifts and did not honour their shift bids. Following further complaints to various levels of management, employees were ultimately told by Paul Evans, Burlington's Toronto Station Manager, that the shift bids had been suspended because they would be a point of contention in negotiations with the Union. When Ian Taylor, the lead hand on the night shift, told Mr. Evans that the Company's position "did not make sense because, negotiations or no negotiations, you've still got to have shifts", Mr. Evans replied, "Well, that's the way it is."

15. In his testimony before the Board, Mr. Machika offered the following reason for the Company's post-certification failure to follow its established practice regarding shift bids: "Because we'd heard from members of the unit of [their] wanting changes in the shift bid system - wanting fixed shifts - we couldn't do the shift bids and then negotiate and have to change mid-stream." In view of management's assertion (described below) that "negotiations take an awful long time", that explanation does not strike us as being entirely candid. In any event, it provides no defence to what is clearly a contravention of section 79 of the Act.

16. Burlington further contravened section 79 by withholding the employees' annual pay increase in November of 1984. Prior to 1982, increases had been given to employees on their indi­vidual employment anniversary dates. However, in November of 1982, all of the employees in the warehouse were given a raise and Messrs. Machika and Evans advised them that in future years they would receive an increase every November. In accordance with that arrangement, another wage increase was given to the warehouse employees in November of 1983. However, no such increase was forthcoming in November of 1984. Employee complaints about that matter merely yielded the answer from management that wage increases had been suspended because they were a matter for negotiation with the Union. After initially telling the Board that to the best of his knowledge there had been a wage increase in November of 1984, Mr. Drake changed his evidence by indicating that hourly-rated employees were not given their annual wage increase that year "on the advice of counsel in the U.S. ... that this would be one of the items on the bargaining table". Although wages are certainly one of the matters which have traditionally formed a significant part of collective bargaining, that well known fact does not relieve an employer of the obligation under section 79 to provide a wage increase at the expected time where an annual increase at a particular time of year has become a term or condition of employment, or a right or privilege of employees, through previous statements or actions by management: see, for example, Homewood Sanitarium of Guelph, Ontario Ltd., [1982] OLRB Rep. Feb. 230; Ottawa General Hospital, [1981] OLRB Rep. Oct. 1461; The Corporation of the Town of Meaford, [1981] OLRB Rep. Sept. 1202; and Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 859. Having been advised by Messrs. Machika and Evans in November of 1982, in conjunction with a wage increase, that in future years they would receive a wage increase every November, and having received such an increase in November of 1983, employees would reasonably expect that a further wage increase would be given in November of 1984. In the absence of consent by the Union to that increase being withheld pending negotiations, the respondent's failure to provide it contravened section 79.

17. Some probationary employees were also denied the wage increase that had traditionally been given to probationary employees at the time of their "ninety day review" at the conclusion of their probationary period (in the event that management decided to retain them as employees). When Mr. Taylor, complained to Mr. Drake and to Peter Kaye, the Night Warehouse Supervisor, about that matter on behalf of Stephen Rupert and James Brown, two employees on the night shift who had successfully completed their probationary period but had not received a wage increase, he was told that because of the negotiations with the Union, there could be no raises. In adopting that position, the respondent was again following the advice of the Vice-President and Legal Counsel of Burlington's parent company, and was again contravening section 79 of the Act.

18. The Company also breached section 79 by changing its practice regarding uniforms fol­lowing certification. Prior to certification, Burlington had an established practice of supplying eleven sets of uniforms (consisting of pants and long sleeved shirts) to each non-probationary full-time employee, and seven sets of uniforms to each non-probationary part-time employee. Those uniforms were provided by Unitog Canada Ltd. pursuant to a rental contract with Burlington. An employee would normally be measured shortly after completion of the probationary period, and the supply of uniforms would commence about two weeks later. The cleaning and repairing of those uniforms had also traditionally been provided under that contract at no expense to Burling­ton's employees. Following the application for certification, new employees were not provided with any uniforms by the Company following their probationary period. In response to employee complaints about that matter, management indicated that no further uniforms would be supplied as "uniforms would be part of the demands during negotiations". James Brown, for example, com­menced employment with Burlington in September of 1984. At the time of his hire he was told by Mr. Kaye that he would be given a review after three months of employment, and that if his per­formance was found to be satisfactory, he would be given a raise at that time and would also be provided with uniforms. When that three-month probationary period passed without a review, a salary increase, or the provision of any uniforms, Mr. Brown raised the matter with Mr. Kaye. After consulting with Naida Maynard, the station's Night Operations Manager, Mr. Kaye told Mr. Brown that the performance reviews, salary increases, and uniforms were "on a freeze" because the Union had been voted in. Mr. Brown received a similar response when he raised the matter with Frank Castelino, the respondent's Service Supervisor. Mr. Brown was measured for uniforms about a week after he spoke with Mr. Castelino. However, no uniforms had been provided to him by January 8, 1986 when he testified before the Board in these proceedings (and there is no evi­dence that they were subsequently provided to him). Mr. Machika testified that uniforms were not ordered for new employees following certification because the Company did not want to enter into any further uniform rental commitments in case the negotiations with the Union called for changes respecting uniforms. However, the Company did nor seek the Union's consent to that change in the Company's practice regarding uniforms.

19. The Company also had an established policy of subsidizing the purchase of safety boots by paying fifty percent of the cost of one pair of steel-toed work boots per year, to a maximum of forty dollars per employee. To facilitate the provision of those boots, the Company traditionally arranged for a safety boot truck to come to the station twice a year. Following certification, the truck did not come at its normal time. However, after receiving complaints by employees, manage­ment arranged for the truck to come to the station a few weeks later and further arranged for the respondent to subsidize the cost of boots purchased as a result of that visit, in accordance with its usual practice. It is unnecessary to determine whether the late arrival of the safety boot truck involved a contravention of section 79, as no remedial relief would be warranted under the circums­tances.

20. The Company had developed a practice of giving employees profit-sharing bonuses twice a year during periods of profitability. Prior to 1983, the bonuses took the form of monetary payments. Mr. Taylor, for example, received $250 for the period from January to June of 1982 and $150 for the period from July to December of 1982; in earlier years his bonuses had varied from about $50 to $500. Four other employees, including Rick Best, received $150 for January to June of 1982, and $50 for the following six-month period. Others received smaller amounts. In 1983 there was less money available, so management decided to give warehouse employees wine and cheese in December instead of a monetary bonus. In 1984, money was once again available for dis­tribution. Mr. Drake told the Board that while it was engaged in a joint-venture with Airgo, the parent company had accepted Airgo's policy of distributing profit-sharing bonuses throughout the employee ranks, but that having become the sole owner of the respondent, the parent company had directed management to follow the parent company's policy of not paying profit-sharing bonuses to hourly-rated employees. However, it is clear from the evidence that no such change in policy had been communicated to employees prior to the certification of the Union. Moreover, notwithstanding that assertion by Mr. Drake, we are satisfied on the totality of the evidence before us in these proceedings that, but for the certification of the applicant, bargaining unit employees would have received a profit-sharing bonus prior to the end of 1984. In this regard, we accept the candid and credible evidence of Mr. Taylor that when Mr. Drake telephoned him on the day that the Union was certified by the Board, one of the things that Mr. Drake told him was that the bonus cheques were sitting on the desk, signed and ready to go, but that they were not going out. Although in his testimony before the Board Mr. Drake denied having made that statement, we found him to be a less reliable witness than Mr. Taylor, whose evidence we prefer concerning that matter (and most other matters on which their evidence conflicts). In making that finding of fact, we have also considered the circumstances in which that telephone call was made, and the nature of the pre-existing relationship between Mr. Drake and Mr. Taylor. Mr. Drake had known Mr. Taylor for a number of years as they had both commenced employment at about the same time with the Airgo joint-venture which had preceded the parent company's complete ownership of the respondent. Mr. Drake found Mr. Taylor to be an outgoing and engaging person. He had visited Mr. Drake's home in 1983 when he purchased a motor vehicle from Mr. Drake. Mr. Taylor was the sole witness to testify before the Board in the certification proceedings in support of the peti­tion which he had circulated in opposition to the Union. Thus, Mr. Drake saw Mr. Taylor as an ally in his opposition to the Union, and had no idea that he was speaking with an individual who would subsequently become a member of the Union's bargaining committee and one of the Union's strongest supporters. Mr. Drake called Mr. Taylor at home that day to advise him of the Board's decision, so that Mr. Taylor would know before he went to work that the Union had been certified. Mr. Drake also wanted to assure Mr. Taylor that he was a "valued employee" and that the Company would "try to make sure that there'd be no recriminations against him" for having circulated a petition against the Union.

21. During that telephone conversation, Mr. Drake also told Mr. Taylor that the certifica­tion of the Union was unfortunate and that it "put things in a whole new ball game" in which "all things are off". When Mr. Taylor asked him what he meant, Mr. Drake repeated, "All things are off." That prompted Mr. Taylor to express the view that it was not fair for Mr. Drake to treat the employees that way, as there were "a lot of employees who worked very hard for the Company, who signed the petition, and who didn't want the Union". Mr. Drake agreed that it was unfortu­nate, but added, "That's the way things are." He also asked Mr. Taylor, "Do the men realize that negotiations take an awful long time?"

22. Having regard to the totality of the evidence and, in particular, to the aforementioned statements by Mr. Drake during his telephone conversation with Mr. Taylor on the day the Union was certified, we find that the respondent contravened section 66 of the Act by withholding the bonuses which it had planned to provide to its warehouse employees, thereby discriminating against them and penalizing them for having exercised their rights under the Act to join a trade union. In view of that finding, it is unnecessary to determine whether the respondent also contra­vened section 79 by withholding those bonus cheques.

23. During the second week of December, the following (typewritten) petition was placed on the Station Manager's desk after working hours:

TO WHOM IT MAY CONCERN:

WHY

INQUIRY-NO NOVEMBER RAISES AS AGREED TO IN THE PAST

PROFIT SHARING OR BONUS FOR WHOSE STAFF

NO SHIFT BIDS HONOURED

IF BY 3:30 P.M. DEC/14/84, NO REPLY 15 RECEIVED, A COPY OF THIS

INQUIRY, WILL BE FORWARDED TO THE LABOUR BOARD

That petition contained the signatures of about a dozen warehouse employees, below whose signa­tures was typed: "THESE SIGNATURES REPRESENT THE OPINION OF ALL THE EMPLOYEES." Photocopies of two pages of the Act were attached to that petition, with sections 79(1) and 96(1)(b) circled.

24. Mr. Machika replied to that petition by means of the following memo: To: Toronto Warehouse Employees From: Win. E. Machika Date: December 17, 1984 Subject:Petition

Once the Labour Board has certified a Union as the representative of a group of employees, the employer is required to deal exclusively with the Union regarding the terms and conditions of employment of those employees.

25. The Company also contravened section 79, as well as sections 64, 66, and 70 of the Act by changing its approach to discipline following the application for certification. Prior to becoming aware of the Union's organizational activities, management had generally only taken disciplinary action against employees for serious matters such as violence, insubordination, habitual tardiness, and substantially inadequate job performance. Matters of a more minor nature were usually dealt with through oral warnings. Moreover, employees were generally given an opportunity to give management "their side of the story" before being given a written warning or other discipline. After receiving notice of the Union's certification application, management began to issue written warnings for a variety of "violations", including relatively trivial matters which would not have attracted any disciplinary response prior to certification. A printed "EMPLOYER WARNING RECORD" was introduced by the Company and was used extensively by management in a tran­sparent attempt to punish employees for having unionized, and to intimidate or coerce them into refraining from further exercising their rights under the Act. Many of those documents were pre­pared in typewritten form prior to any discussion with the affected employees concerning the inci­dents to which they pertained. Moreover, members of management generally remained steadfast in their determination to include them in the employees' files even if the employees offered a rea­sonable explanation for the impugned conduct. Bargaining unit employees adversely affected by the respondent's unfair labour practices described in this paragraph included Mark Wells, Brian MacDonald, James Brown, and Dale Robertson. In particular, having carefully considered the extensive evidence adduced by the parties concerning various incidents which attracted disciplinary action following the certification of the Union, we are satisfied that the respondent contravened sections 64, 66, 70, and 79 by giving a written warning to Mr. Wells on February 6,1985, by giving written warnings to Mr. MacDonald and Mr. Brown on March 13, 1985, by giving a written warn­ing to Dale Robertson on March 14, 1985, by giving written warnings to Mr. MacDonald and Mr. Robertson on April 30, 1985, and by suspending Mr. Robertson for two days on May 1, 1985. However, we find that the respondent did not contravene the Act by giving written warnings to Mr. Robertson on December 3, 1984, and January 14, 1985, as we are satisfied on the totality of the evidence that the misconduct which gave rise to those two written warnings would have attracted disciplinary action prior to the onset of the statutory "freeze", and we are further satis­fied that the respondent was not motivated by anti-union considerations in issuing them.

26. Following the Union's application for certification, the Company also violated sections 64, 66, 70, and 79 of the Act by using its disciplinary powers for the purpose of building a record against Mr. Best, who was known by management to have been instrumental in organizing the employees. With the exception of the aforementioned warning letter which he received in the sum­mer of 1984 for being on Company premises while off shift (which letter may well itself have con­stituted an instance of discipline motivated by anti-union animus), Mr. Best had received no writ­ten warnings or suspensions, and very few oral warnings, prior to the application for certification. However, the situation changed dramatically after the Company became aware of his Union activi­ties. The change began with the aforementioned warning letter. It continued in the fall of 1984 and in the ensuing winter and spring. On October 17, 1984, Mr. Best was given a written warning for a "violation" which was described as follows on the warning form: "Failure to advise supervision of anodorous [sic] piece of frt. That [sic] was in the rack and at the same time reporting to Customs in order to create an issue out of the matter." It is clear from the evidence that this warning was com­pletely unwarranted and it can reasonably be inferred from the totality of the evidence that the members of management involved in issuing that warning knew it to be unwarranted. The freight in question contained brussel sprouts which had gone bad. Mr. Best had in fact advised his supervi­sor of the presence of that malodorous piece of freight on several occasions. Moreover, Mr. Best did not report the matter to Customs or attempt to create an issue out of the matter. When a Cus­toms Officer, who was in the warehouse clearing freight for shipment, asked Mr. Best about the smell, he merely took her to the freight in question and said, "Why don't you clear it so that we can ship it out of here?" Mr. Best testified that the clearing of freight was the Customs Officer's job, and that international freight cannot be shipped out of the warehouse without first being cleared by Customs. He also told the Board, "I thought I was doing the Company a favour by try­ing to get rid of this smelly freight."

27. On February 1, 1985 Mr. Castelino gave Mr. Best a memo concerning absenteeism, in which he noted that Mr. Best had called in sick on five of the twenty-two working days in January, and requested him to do his part in helping the Company to resolve this "problem". That memo was forwarded to Mr. Best and placed in his personnel file, notwithstanding the fact that members of management were aware from their personal observation of Mr. Best that he was quite ill in January. Indeed, at one of the bargaining sessions held during that month, Mr. Machika told Mr. Best, whose eyes were watering and whose sickness was so severe that he was unable to talk, not to come near him. Mr. Best was also told by a member of management that he should be home in bed. He took that advice and remained at home in bed for the next two days. Mr. Best was also absent from work due to illness two days in February and two days in March. On March 26, 1985, Mr. Castelino suspended Mr. Best for three working days for what he characterized as "abuse" of the Company's sick leave policy "by the taking of compensated time off under the guise of illness or injury". Mr. Castelino was not called as a witness in these proceedings, nor was any other credi­ble evidence adduced to demonstrate that management had any bona fide reason to believe that Mr. Best had abused the Company's sick leave policy. Moreover, although management was aware of sick leave abuse in 1984, which was the worst year for absenteeism in Company history, no employee was suspended for such abuse in 1984. Thus, even if Mr. Best's absences had involved an abuse of the Company's sick leave policy (which they did not), the suspension of Mr. Best for such abuse would have involved a departure from the Company's pre-certification approach to such matters. The same is true of Burlington's two-day suspension of D. J. Simec on March 26, 1986. However, the "absenteeism" memo dated March 27, 1985 from Mr. Castelino to Richard Sche­pens, which was also impugned by the Union in these proceedings, was not a written warning and did not involve any contravention of the Act.

28. Following certification, Mr. Best was also denied the privilege of using Company tele­phones for personal telephone calls. Prior to certification, Mr. Best (and other warehouse employ­ees) had been permitted to make and receive such calls, subject only to not abusing the privilege by, for example, making long distance calls or using the Company telephone number in an adver­tisement for the sale of personal property. There is no evidence of any such abuse by Mr. Best. Moreover, the Union did not consent to the withdrawal of that privilege, nor to the alteration of any of the terms and conditions of employment described above. By revoking that pre-existing privilege, the respondent contravened section 79 of the Act, as well as section 66.

29. Following its certification by the Board, the Union gave Burlington notice to bargain and arranged to meet with Company representatives on January 4, 1985. The persons present at that meeting on behalf of the Union were Messrs. Bigeau, Taylor, and Best. Mr. Taylor and Mr. Best had been elected as members of the Union bargaining committee by employees in the bar­gaining unit. The Union also intended to have Mr. Grey present at that meeting as the Union's chief spokesperson, but he was unable to attend as he was called away to a meeting in the United States. Thus, Mr. Bigeau served as the Union's spokesperson at that meeting. The persons present on behalf of the Company included Mr. Machika, Mr. Evans and Barbara Crosby, a labour lawyer who served as the Company's chief spokesperson. At that meeting, the Union presented all of its bargaining proposals, with the exception of its wage proposals, which Mr. Bigeau indicated would be forthcoming at a later date. The proposals included a union security clause which made mem­bership in the Union a condition of employment; a provision which precluded supervisors (and other persons outside the bargaining unit) from performing work normally performed by members of the bargaining unit; a prohibition against contracting out any such work; a clause which made seniority the determining factor in lay-offs, promotions, transfers, overtime assignments, and recalls (provided the senior employee had the ability to perform the work); a clause which pre­vented the Company from hiring a part-time employee where there had been a decrease in the number of full-time positions, and which required the Company to lay off all part-time employees before it could layoff any full-time employees, and to follow the reverse order in recalling employ­ees; and an article which provided for standardized shifts of eight hours per day on five consecutive days, with a daily half hour unpaid lunch period. The standardized hours proposed by the Union were 7:30 a.m. to 4:00 p.m. for the "first shift" and 4:00 p.m. to 12:30 a.m. for the "second shift". Although it was not clear from the Union's initial proposal, it was the Union's position that all existing health and welfare benefits should be extended to all employees in the bargaining unit. In addition to provisions concerning recognition, transfer of operations, grievance procedure, representation by Union stewards, job posting, and seniority, the Union proposed some vacation, statu­tory holiday, shift premium, and safety boot subsidization improvements, as well as a Christmas bonus of one week's pay for each employee. The Union also proposed that the Company contri­bute to the "ITU Negotiated Pension Plan", and that it preserve practices, privileges, benefits, and working conditions to the extent that they were more beneficial than those contained in the collec­tive agreement. A "general" article contained a number of provisions, including an obligation to provide uniforms to employees "in accordance with current practice", and to strike all reprimands from an employee's record after one year.

30. During the January 4 meeting, Ms. Crosby commented that the Union's monetary demands were outrageous, and that the Union was obviously not used to dealing with Burlington's type of operation. Mr. Bigeau found Ms. Crosby's comment about "monetary demands" to be rather strange, in that the Union had not yet tabled its monetary proposals. However, he was not unduly concerned about her comments, as he was of the view that Ms. Crosby was "just putting on a show" for her client. Mr. Bigeau answered the Company's questions about a number of the pro­posals. However, he indicated that the Company would have to wait for information from Mr. Grey concerning the initiation fee specified in Local 91's bylaws (which fee was included in the Union's checkoff proposal) and concerning the ITU Negotiated Pension Plan. When Mr. Bigeau raised the employees' concerns about the Company's failure to follow its usual practices concern­ing such matters as shift bids and uniforms for new employees, the Company's response was that those items would be negotiated.

31. A second bargaining meeting was held on January 16, 1985. Mr. Grey attended that meeting along with the other three aforementioned members of the Union bargaining committee. The only change in the Company bargaining committee was that Jose Cordeiros, Burlington's National Operations Manager, was present instead of Mr. Evans. (Mr. Machika told the Board that the Company decided to rotate Messrs. Evans and Cordeiros as members of the Committee so that either of them could be used as a replacement in the event that Mr. Machika was unable to attend. However, that did not occur as Mr. Machika was present at all of the bargaining sessions.) At that meeting, the Company provided the Union with copies of its proposals. Those proposals were formulated, with the assistance of counsel, by Messrs. Drake and Machika with input from Don Hogan, the Company's Director of Sales, and Mary Hauer, the Company's Director of Finance and Administration. On the advice of the Company's Toronto counsel, and of the Vice-President and Legal Counsel of the parent company, Mr. Drake decided not to go to the bargain­ing table. He told the Board that he decided not to take part in the day-to-day negotiations so that any decision he might make would not be biased by the heated discussions which sometimes take place in negotiations. However, he kept abreast of the negotiations by meeting with Mr. Machika after each negotiation session and reviewing typed transcripts of Mr. Machika's notes, which were also forwarded to the Vice-President and Legal Counsel of the parent company in California. Mr. Machika, who had little collective bargaining experience, took written notes at each bargaining session and then dictated them after each session so that they could be typed and distributed to Mr. Drake, Mr. Evans, Mr. Cordeiros, and the Vice-President and Legal Counsel of the parent com­pany. Mr. Machika had the authority to make "house cleaning changes" in the Company's propos­als, but could not make any substantive changes without Mr. Drake's approval.

32. Burlington's proposals contained numerous provisions which were of serious concern to the members of the Union bargaining committee. Article 2.03 divided the bargaining unit into "two types of employees" defined as follows:

1. permanent regular employees: an employee who is employed by the Company work­ing a regular shift comprised of five (5), eight (8) hour days for a regular non-over­time work week of forty (40) hours.

2. permanent irregular employees: an employee who is employed by the Company work­ing an irregular shift which is any shift other than a regular work shift as defined in Article 2.03(1).

Since those terms were both entirely new, the Union bargaining committee spent much of that sec­ond bargaining session attempting to gain some understanding of what they meant and what their implications were for members of the bargaining unit. The Company indicated at the bargaining table that permanent irregular employees were "part-time employees" who worked only 25 to 30 hours per week and did not receive benefits. However, the information available to the Union through Messrs. Taylor and Best indicated that some of them worked 35 or more hours a week. In explaining the creation of that new terminology, Mr. Drake testified: "We really had two labels for employees: full-time and part-time. We had to revise the use of 'part-time' because of the [Board's] bargaining unit description of less than twenty-four hours per week. Therefore, we had to create a classification of employees who were scheduled to work more than twenty-four hours per week but less than forty hours per week. That's where the 'regular', 'irregular' classifications came from." He also told the Board that permanent irregular employees had various schedules, depending on the staffing requirements dictated by the "many peaks and valleys" in the air freight forwarding industry.

33. The Union representatives felt, and expressed to the Company, grave concern that Bur­lington's proposals provided no job security for members of the bargaining unit. The Union was extremely concerned about the fact that the proposals would empower Burlington to seriously erode the Union's bargaining rights by reducing permanent regular employees to permanent irreg­ular employment, and then further reducing their hours of work to less than twenty-four hours per week, thereby removing them from the bargaining unit. Their concern in that regard was height­ened by the lack of any guaranteed hours for even a core of permanent regular employees, and the fact that the Company proposals included broad powers to revise starting times, lengths of shifts, and hours of work, and to subcontract work and lay off bargaining unit employees while retaining part-time employees (excluded from the bargaining unit.)

34. Certain actions that were taken by management following certification also heightened the Union's anxiety about the implications of the Company's proposals. In mid December of 1984, the Company eliminated a driver's position and a warehouseman's position on the day shift. The two employees whose positions were eliminated bumped two other employees with less seniority. One of them (Allen Proulx) bumped a warehouseman (Dale Robertson), who was then demoted from "full-time" employment (with full benefits) to "part-time" employment. Following his demo­tion, he worked between 35 and 40 hours per week without benefits. (No employees were laid off as a result of that change, because two low seniority employees left the employ of the Company the week before the change.) Furthermore, the Company reduced Robert Miller and Dan Poutsoun­gas to 24 hours of work per week. Prior to that reduction, those two warehouse workers had each generally averaged approximately 32 hours of work per week for Burlington. (They were initially hired by Burlington in late September of 1984 as temporary employees, to assist the warehouse staff in handling a large volume of automotive promotional material which required distribution on behalf of one of the Company's customers. However, following a four-day lay-off at the end of November, they were called back to work because they were needed to help unload trucks.) When Mr. Taylor, who was their lead hand, complained to Mr. Evans about that reduction, which had made it more difficult for Mr. Taylor and the others on his shift to complete all the necessary work, Mr. Evans confirmed Mr. Taylor's suspicion that their hours had been reduced "because of the Union", so as to remove them from the bargaining unit. (Mr. Miller subsequently returned to the bargaining unit when his supervisor arranged for him to obtain more hours of work with the Com­pany by switching hours with his brother Steven, who had another job in addition to his position with Burlington.)

35. In reducing the hours of work of Mr. Miller and Mr. Poutsoungas "because of the Union", the respondent contravened sections 64 and 66 of the Act. The same is true of Mr. Rob­ertson's demotion, which was also motivated at least in part by anti-union considerations. Under the circumstances, it is unnecessary to determine whether those actions were also violative of sec­tion 79.

36. On the basis of those and other actions by management following certification, the Union representatives were concerned that unless a collective agreement prevented such actions by the Company, bargaining unit positions might be reduced or eliminated by replacing permanent regular employees with permanent irregular employees, and reducing the hours of permanent irregular employees to twenty-four hours per week (or less). The Union representatives' concerns about that possibility were further heightened by the fact that the Company was unwilling to guar­antee forty hours of work per week for any of the permanent regular employees, unwilling to agree to maintain a fixed ratio of permanent regular employees to permanent irregular employees, and unwilling to agree that part-time employees would be laid off prior to members of the bargaining unit.

37. The members of the Union bargaining committee were also of the view that there was no justification for denying full benefits to the workers described by the Company as permanent irregular employees, in view of the fact that many of them worked nearly the same number of hours as the workers described by the Company as permanent regular employees. They also feared that in the absence of a provision guaranteeing a forty-hour work week for at least those employ­ees who had traditionally worked five, eight-hour days for Burlington, the Company might deprive such employees of their existing benefits by reducing or varying their working hours so as to remove them from the ambit of the "permanent regular employee" definition. However, the Com­pany refused to agree to any such guarantee, and also rejected the Union's proposal that all bar­gaining unit employees be given forty hours of work on standardized shifts. Thus, the Union's pro­posals that all bargaining unit employees be given benefits and a forty-hour work week became two of the key issues in negotiations between the parties.

38. In seeking to justify the Company's proposals, the Company representatives told the Union that Burlington planned to reduce its reliance on common carriers by using aircraft leased by its parent company and dedicated solely to carrying freight for Burlington and its parent com­pany. That significant change in operations was designed to keep Burlington and its parent com­pany competitive. It was originally scheduled to be implemented in the fall of 1985, but did not become operative until December 31, 1985. It resulted from a consultant's report that was pre­pared for the holding company which owns Burlington's parent company. It was anticipated that the use of dedicated planes rather than common carriers would reduce the number of freight arriv­als at the Airport from in excess of twenty to only two per day. Management also suggested during bargaining that, with the introduction of those planes, the Company could potentially require a lot more part-time employees, and fewer permanent regular employees, as the bulk of the freight would arrive at the same time and much of the work would be concentrated in a period of about five hours per day. However, it was anticipated that there would continue to be a nucleus of per­manent regular employees. When the Union representatives asked how many part-time employees there would be, the Company representatives said that they did not know, but that there might be up to forty or fifty. The Company representatives further indicated that they needed to retain flexi­bility in scheduling employees since they would have to plug into a system that would involve all of the various locations which those dedicated planes would be flying to and from in the United States. Further uncertainty concerning scheduling was created by the fact that the parent company was having difficulty in obtaining landing rights in Canada for the larger planes which it intended to lease. Thus, it was anticipated that the planes would initially have to land in Buffalo. From there, smaller planes which had been granted landing rights in Toronto would be used to transport small packages to the Airport. Trucks (operated by another company under a contract with Bur­lington) would be used to transport larger packages from Buffalo to Toronto.

39. As noted above, the Union's initial proposal was that all bargaining unit employees should have a forty-hour week, consisting of five consecutive eight-hour days, with set starting and quitting times. However, the Union subsequently modified that position by proposing several pos­sible alternatives, including a ratio of permanent regular employees and permanent irregular employees, expansion of the bargaining unit to include part-time employees, and a guarantee of the existing number of permanent regular employees and permanent irregular employees. How­ever, each of those alternatives was rejected by the Company representatives on the ground that they did not know what their work force requirements would be once the new planes were in place.

40. The Union bargaining committee was also very disturbed about the union security clause proposed by the Company. It was the Union's position that, with the exception of proba­tionary employees, all bargaining unit employees should be required, as a condition of employ­ment, to become and remain members of the Union in good standing. The Union also proposed a mandatory dues check-off provision. Article 3.01 of the union security clause proposed by the Company provided only for dues deduction from the pay of every employee who signed an author­ization card directing such deduction. However, Article 3.02 provided that "each employee upon employment will be required to sign an authorization card directing the Company to deduct Union dues in accordance with the foregoing". Mr. Machika conceded in cross-examination that he was aware at all material times that such an authorization was not legally required. However, he testi­fied that he wished to have that provision in the agreement so that employees would "be aware up front that Union dues would be deducted" and "so that there'd be no question about it at a later date". Mr. Bigeau characterized that position as "fancy language to confuse the issue". Mr. Grey described it as "unnecessary", and suggested that it would be an aggravation to persons who, under the Company's proposal, were not members of the Union.

41. The broad management rights clause proposed by the Company was also a source of concern to the Union. It gave the Company an unfettered right to contract out bargaining unit work. Deliveries to and pickups from customers in the area served by the Toronto station had always been contracted out by the Company. The Union did not consider that to be bargaining unit work, and was not seeking to prohibit the Company from continuing to contract it out. How­ever, the work of transporting freight to and from the Airport had traditionally been performed by warehouse employees (classified as drivers/warehousemen). The Union was concerned that the Company might contract out the work of those members of the bargaining unit, one of whom was Mr. Best.

42. The Union was also highly concerned about the Company's Article 9.02 proposal con­cerning "just cause". It provided as follows:

9.02 The discharge of an employee who has completed his probationary period, hereinafter referred to as a "seniority employee", shall be for just cause. "Just cause" for discharge shall be deemed to include, but shall not be limited to the following:

(a) Failure to follow Company's established policies, practices or procedures.

(b) Insubordination or conduct which is abusive to supervision or Management.

(c) Dishonesty.

(d) Falsifying or withholding information on personnel questionnaires, employment application, production or work performance reports, time cards, or any other rec­ords or reports.

(e) Failure to perform assigned duties; refusing to work overtime; negligence in the per­formance of duties likely to cause or actually causing personal injury or property dam­age; fighting or attempting injury to another; stealing, destroying or willfully damag­ing the property of another employee or the Company or anyone else; the possession, use or being under the influence of drugs or alcoholic beverages during working hours; carrying or possessing firearms or weapons on Company property; excessive tardiness or absenteeism; unsatisfactorily explained absences; unauthorized absence for more than two (2) days without notice to the Manager; violation of this Agree­ment; or failure to comply with Company rules, including safety rules.

Any grievance with respect to the exercise of this right to discharge or discipline shall be limited to the question of whether or not one of the offences occurred and shall not include whether the type of discipline selected by the Company was appropriate.

Although the Union representatives were prepared to agree that serious matters such as theft and destruction of Company property might well warrant discharge, they were adamantly opposed to specifying discharge as the penalty for refusing to work overtime and for engaging in broadly defined "offences" such as failure to follow the Company's established policies, practices, or pro­cedures; dishonesty; and failure to comply with Company rules. In describing the effect of that provision from his point of view, Mr. Grey told the Board that under the language proposed by Burlington, "pretty well in general the Company could fire anyone for any reason". He also testi­fied that he had never seen anything like it before, and that he could not accept that provision because the requirement of "just cause" would be unenforceable if that provision were included in the agreement. Also completely unacceptable to the Union was the above quoted provision which precluded arbitral review of the penalty of discharge or other discipline selected by the Company. The Union representatives were of the view that this provision handicapped the grievance proce­dure by arbitrarily preventing an arbitrator or arbitration board from substituting a lesser penalty in appropriate circumstances.

43. Also of serious concern to the Union was the fact that Article 6.02 specified discharge as the arbitrarily unreviewable penalty for employee participation in "any strike, picketing, sit down, slow down, or any suspension of or stoppage of or interference with work or production which shall in any way affect the operations of the Company". Moreover, although the Company was not prepared to require Union membership as a condition of employment, it nevertheless pro­posed (in Article 6.01) that the Union undertake and agree that while the agreement was in opera­tion, neither the Union nor any employee would take part in, call, or encourage any of those activ­ities. The Union representatives were of the view that it was inappropriate for the Company to demand such an undertaking without making Union membership mandatory for employees in the bargaining unit, so as to give the Union an element of control over all such employees through internal Union disciplinary procedures.

44. Mr. Machika told the Board that the Company wished to have very specific language such as that contained in Articles 6.02 and 9.02 "so there wouldn't be any room for [Burlington's first level] management not to understand the contract". A similar rationale was given to the Union during negotiations. However, as contended by Union counsel in his submissions to the Board, the complexity of a number of the provisions proposed by the Company, such as its seven-page grievance procedure provision and its reference to "the principle of estoppel" in its extensive management rights clause, belies that assertion.

45. The Company proposed a stringent, detailed grievance and arbitration procedure which specified that its time limits and other procedural requirements were mandatory and not merely directory. The Company proposal also expressly made section 44(6) of the Labour Relations Act inapplicable, and thereby precluded an arbitrator or arbitration board from extending the time lim­its where the arbitrator or arbitration board was satisfied that there were reasonable grounds for the extension and that the opposite party would not be substantially prejudiced by the extension. The Union representatives were concerned that the lengthy provisions of the grievance and arbi­tration procedure were too complex to be readily understandable by members of the bargaining unit. They were also concerned that the grievance procedure proposed by the Company bypassed the employee's immediate supervisor and involved no Union official other than a steward. Those and other matters pertaining to the grievance procedure by the Company were discussed between the parties at great length and were ultimately resolved through a "one on one" meeting between Mr. Bigeau and David Brisbin, who replaced Ms. Crosby as the Company's spokesperson when she went on maternity leave.

46. As noted above, the Union proposed that seniority be the determining factor in lay­offs, recalls, promotions, transfers, and overtime assignments, provided that the employee with the greatest seniority had the ability to perform the work. The Company, on the other hand, proposed (in Article 10.04) that seniority shall only be determinative where the employees' "skill, ability, qualifications, dependability and reliability" were equal. Although in an effort to obtain agreement the Union representatives were prepared to compromise by making seniority the deciding factor only where the employees' "skill, ability and qualifications" were relatively equal, they were not prepared to agree to "dependability and reliability" being included in the seniority provision, as they felt that those terms were too nebulous and would permit favouritism. The Company repre­sentatives, on the other hand, expressed the view that "skill, ability, and qualifications" were not as important in a warehouse setting as they were in other contexts. They contended that dependa­bility and reliability were important because (in the words of Mr. Machika) "basically the only dif­ference between most of the people in a warehouse is dependability and reliability".

47. The lay-off clause proposed by the Company was also unacceptable to the Union. It provided:

10.05 In the event that lay-off is necessary, the Company shall lay off temporary, then proba­tionary employees, if any, prior to laying off seniority employees. Seniority employees will be laid off in accordance with the provisions of Article 10.04.

That provision made no mention of part-time employees, whom the Union felt should be the first persons laid off. Moreover, as noted by the Union at the bargaining table and in these proceed­ings, that provision introduced yet another type of employee, referred to as a "temporary employ­ee", and did not reflect what had in fact been occurring in the warehouse.

48. The Company's job posting proposal also gave rise to extensive discussions at the bar­gaining table. It provided as follows:

11.0k The Company agrees to advertise permanent job vacancies for five (5) working days. Dur­ing the posting period and until the vacancy is filled, the Company may temporarily fill the job as it wishes. In order for any employee to be considered, the applicant must have the qualifica­tions necessary to satisfactorily perform the job and the job must be in a higher wage group than the applicant's. In making the selection, the Company will consider the factors set out in Article 10.04 hereof. Where the factors set out therein are equal in the judgement of the Company, the senior applicant will be given preference. In the event there are no suitable applicants, the Com­pany may fi]] the vacancy from any source. An employee will be limited to one (1) successful bid in a twelve (12) month period. All employees interested in the job vacancy must make appli­cation within the five (5) day period that the vacancy is posted. Such job postings shall apply in respect of the original vacancy and will not apply to subsequent vacancies created by the filling of the original vacancy.

The Union representatives felt that Article 11.01 contained far too many restrictions. The require­ment that the job be in a higher wage group than the applicant's precluded lead hands such as Mr. Taylor from applying for a lateral transfer to an opening for a lead hand on another shift. It also meant that if a driver/warehouseman such as Mr. Best lost his licence, the only job for which he would be eligible to apply would be that of lead hand, as the driver/warehouseman's wage rate was higher than that of a warehouseman. Also of concern were the twelve-month limitation, the restriction of the provision to the original posting, and the unreviewable power which the Com­pany was seeking with respect to determining whether or not the aforementioned five factors were equal.

49. Other Company proposals opposed by the Union included a provision by which over­time would be mandatory (in inverse order of seniority) in the event that the work could not be covered by means of voluntary overtime (offered in order of seniority to employees at work at the time the need for the overtime arose), and a provision by which overtime would only be paid for hours worked in excess of forty hours per week, rather than in excess of eight hours per day, as proposed by the Union.

50. The only provisions on which agreement was reached at the January 16 bargaining ses­sion were minor, non-contentious items: Article 3.03 (by which the Company agreed to supply updated seniority lists to the Union Committee and the Union office twice a year), Article 6.02 (which adopted the definitions of "strike" and "lock-out" contained in the Labour Relations Act), and Article 7 (by which the Company agreed to provide a bulletin board for the use of the Union, and the Union agreed that all notices would be subject to approval by the District Manager prior to posting).

51. Considerable time was also spent discussing health and safety matters at the January 16 bargaining session. Employees had a number of health and safety concerns respecting the Com­pany's premises and equipment. The Company had moved its Toronto terminal into a new ware­house in the fall of 1984, and since that time there had been a problem of excessive dust in the warehouse causing nosebleeds and respiratory problems for some of the employees. Wheel chocks were also needed to prevent parked trucks from moving while they were being loaded and unloaded at the new warehouses' docks by employees on forklifts. There were also concerns about the roller systems in the new warehouse and in the Company's trucks, the location of electrical boxes on beams in the new warehouse, the lack of floor bolts on warehouse racks, and the pres­ence of propane tanks in the new warehouse. Mr. Best had been particularly vocal in raising these matters with management during the fall and winter of 1984. In December he had designed a new roller system on his own initiative and presented the design to management for their consideration. (Messrs. Evans and Machika discussed that proposed design but concluded that it was too cumber­some. In rejecting it, they also took into account the fact that a system specialist in the employ of the parent company had recently designed a roller system for the Company, after coming to Toronto from California to assess the Company's needs. That system was purchased by the Com­pany at a cost in excess of $30,000.) At the January 16 bargaining session, management acknowl­edged that there was a dust problem in the new warehouse, and advised the Union representatives that the company which had constructed the warehouse would be looking into the matter. At that meeting, the Union representatives raised once again some of the aforementioned changes in terms and conditions of employment which had been made by management following the Union's certification. The Company's response continued to be that those matters would have to be negoti­ated.

52. The parties next met on January 22. Having spent most of the previous bargaining ses­sion voicing their concerns about the Company's proposals and explaining what they wanted, the Union representatives were hopeful that the Company would make some movement and accept at least some of the Union's proposals. There was extensive dialogue between the parties at that meeting, with each party explaining its concerns, but very little progress was made. The only provi­sions agreed upon on January 22 were Article 1.02 (by which use of the masculine gender in the agreement would "also be considered feminine"), Article 2.01 (the recognition clause which was identical to the bargaining unit description contained in the aforementioned certificate), and cer­tain parts of Article 10.02 (which specified various ways in which a seniority employee could "lose his seniority standing and employment"). All of the language agreed to at that meeting and at the previous meeting was contained in the Company's proposals. The Company did not agree to any of the Union's proposals (with the exception of its recognition clause, which was identical to that of the Company).

53. Mr. Drake had little direct involvement with bargaining unit employees until February of 1985, when he decided to begin spending more time at the Toronto station. (His office was located at Burlington's head office, a short drive from the Toronto station.) In explaining that deci­sion of the Board, he said, "We were very much involved in the labour situation in Toronto. Com­plaints came back to me from employees that we weren't communicating.... There were also prob­lems occurring in the warehouse regarding intentional mishandling of freight." Mr. Drake also stated that Mr. Machika had been managing the Toronto station since November of 1984, when the Company's Toronto District Manager was terminated. He described the Company's efforts to find a suitable replacement as being "a long, drawn-out affair". Ultimately, Greg Richard was hired away from a competitor in April of 1985 to become Burlington's District Manager.

54. Having decided to become more directly involved in the operation of the Toronto ware­house, Mr. Drake telephoned Mr. Grey to request his approval for Mr. Drake to meet with the Company's two lead hands to discuss problems concerning the mishandling of freight. Mr. Drake testified that he called Mr. Grey in order to assure him that he was not attempting to negotiate directly with any members of the bargaining unit, but was "merely trying to keep things cool in the work place". Mr. Grey expressed the view that the proposed meeting was a "great idea".

55. Mr. Cordeiros also began to spend more time at the Toronto terminal in February of 1985, at the request of Mr. Drake. Mr. Cordeiros, who reported directly to Mr. Machika, had pre­viously managed the day-to-day operation of the warehouse, and effectively resumed that role in

February of 1985.

56. The next bargaining session was held on February 6, 1985. Since Mr. Grey was again "called out of town", Brian Bennett, the Vice-President of Local 91, attended in his place. The meeting got off to a poor start when Mr. Bigeau arrived thirty minutes late, having mistakenly thought that it was scheduled for 9:30 rather than 9:00 a.m. After lecturing Mr. Bigeau concerning his tardiness, Ms. Crosby advised the Union that the Company was prepared to substitute "Super­visor" for "Manager" in Article 8.03 of the grievance procedure, and to increase some of the time limits, such as the time limit for filing a discharge grievance (which was two working days in the Company's original proposal, and which the Company was prepared to increase to three working days). The Union had earlier proposed that substitution to avoid problems that might arise if supervisors felt that bargaining unit employees were "going over their heads" by raising matters with a higher level of management without first discussing them with their supervisors. Ms. Crosby pointed to those changes as representing some movement on the part of the Company and appeared to expect the Union to respond with a major move. However, the Union viewed them as relatively minor changes that were not only for the benefit of bargaining unit employees, but also for the benefit of their supervisors. In the ensuing discussion, the Union agreed to accept the Com­pany's revised proposal concerning Article 8.03 (which provided that no employee had a grievance until he had discussed his complaint with his supervisor, and went on to provide that if the employ­ee's supervisor did not settle the matter to his satisfaction, the employee could present a written grievance). The Company's proposal concerning Step 2 of the grievance procedure was also accepted by the Union at that meeting with the addition of "a Union official" as one of the persons who could be present at the Step 2 meeting, along with "the employee, the steward and the Dis­trict Manager or his designate". That addition was requested by the Union and was described by Mr. Bigeau as a "common sense change" designed to enable the Union to be in a better position to assess the merits of a grievance and to thereby facilitate its decision concerning whether or not to refer it to arbitration. Other Company proposals accepted by the Union at that meeting were Arti­cle 1 ("intent and purpose") and Article 4.02 (by which stewards are deemed to be representatives of the Union and officers are deemed to be officials of the Union, and by which the parties agree that the Union representatives and officials occupy positions of leadership and responsibility to see that the agreement is faithfully carried out).

57. After further discussion, the Union bargaining committee caucussed to consider their position and concluded that they could not move, as no progress was being made on any of the key issues. When the Company representatives returned, Ms. Crosby asked if the Union had another position to give them. When the Union representatives replied that they did not, Ms. Crosby accused them of not having done their homework. Mr. Bigeau's response was, "There's nowhere to go. You've got us boxed in." At that meeting, Ms. Crosby also stated that Local 91 generally serviced "Cadillac" types of units in the printing trade, but that it was "now dealing with a Volk­swagen type of operation". The two Burlington employees on the Union bargaining committee were quite offended by that remark, which did little to facilitate bargaining. With tempers flaring and nothing being accomplished, Mr. Bigeau suggested that the parties "break off", and the Com­pany representatives agreed with that suggestion.

58. The parties met again a week later on February 13, 1985. Mr. Grey was in attendance at that meeting, along with Messrs. Bigeau, Taylor, and Best. Mr. Brisbin was introduced as the Company's new spokesperson at that meeting, with the departure of Ms. Crosby on maternity leave. Mr. Brisbin tabled a "status document" containing language to which the parties had agreed as of that date. Mr. Grey tabled a further copy of the Union's proposals, which had been revised to include page numbers and an index. At that meeting, Mr. Brisbin stated that the Company needed a tremendous amount of flexibility because it was in a highly competitive service business which required the Company to "move and move fast" to remain competitive. He asserted that it was not practical to fix hours of work and that management would not permit an arbitrator to tell them how to run their business. He stated that extensive language was needed concerning management's rights to preclude an arbitrator from "implying restrictions" and giving the Company "bad surpris­es" concerning grey areas. He added that the Company "just did not like" the Union proposals because they were "too potentially restrictive".

59. In the early afternoon, Mr. Brisbin advised the Union of certain changes which the Company was prepared to make in its proposals in response to the Union's concerns. Those changes included a reduction in the probationary period (from 90 worked days to 75 worked days); the addition of a second Union steward (to cover the afternoon shift); the addition of a clause by which management's consent to a steward leaving his duties to attend to Union business or to discuss a grievance would "not be unreasonably withheld"; and the deletion of "dependability" as a factor to be considered in respect of lay-offs, recalls, and job postings. However, Mr. Brisbin indi­cated that the Company was opposed to any change concerning the definition of permanent regular and permanent irregular employees, remained opposed to mandatory Union membership, and was unwilling to agree that part-time employees would be the first employees to be laid off. In this regard, he stated that part-time employees would likely become a big factor in the business as the parent company was in the process of obtaining aircraft for its exclusive use. He added that man­agement did not yet know what the schedules for those aircraft would be, but thought that they might need a substantial number of part-time employees to handle peak periods during the day and the afternoon, or might need to schedule employees to work split shifts. No significant changes were proposed by the Company concerning management rights, hours of work, discipline, or any of the other key issues.

60. A number of health and safety issues were discussed at the February 13 meeting, includ­ing the roller system, chocks, and excessive dust in the warehouse. Certain actions by Mr. Best were also discussed at that meeting. Mr. Brisbin expressed his client's displeasure with the fact that during the preceding evening Mr. Best had returned to the warehouse after his shift without authorization by management. In his testimony before the Board, Mr. Best stated that he went to the warehouse around 10:45 p.m. on February 12 because he was concerned about health and safety on the night shift, and wanted to see the roller system in operation. (The roller system was not used during the day shift.) Although he acknowledged that he had no official status as an employee health and safety representative, he testified that he "was involved in a health and safety campaign and was there to make it safe." Mr. Best did not disrupt or in any way impede the work that was being performed on that shift; he merely observed employees while they used the roller system. After Mr. Best had been there for five or ten minutes, Mr. Kaye approached him and asked him to leave. Mr. Best responded by stating that he was there "on health and safety pur­poses", and refused to leave. Mr. Kaye then left and returned with Ms. Maynard, who asked Mr. Best what he was doing there. Upon hearing his explanation, she looked at Mr. Kaye and said, "The boys are almost finished work, aren't they?" Mr. Kaye did not respond, but rather merely looked at Ms. Maynard with what Mr. Best described as "an odd expression on his face" before walking away. Ms. Maynard also left without saying anything more. Mr. Best thought, not unrea­sonably, that Ms. Maynard had meant that it was alright for him to remain in the warehouse because the work was almost finished. However, Ms. Maynard went to the office and telephoned Mr. Machika at his home. When she told him that Mr. Best had not left the premises when asked to do so by Mr. Kaye and by herself, Mr. Machika requested that she have Mr. Best pick up a tele­phone so that he could speak with him. At Ms. Maynard's direction, Mr. Kaye summoned Mr. Best to the telephone to speak with Mr. Machika, who directed him to leave the building. Mr. Best told Mr. Machika he was only there in the interest of the Company and the workers to help solve problems and to ensure that the night workers were not working in unsafe conditions. Mr. Machika told him that he could not stay in the warehouse and that if he had any problems he should take them up with his supervisor. Mr. Best then said, "Come on Bill, I'm not bothering anyone." Mr. Machika's response was, "If you don't get out of the building, I'll call the police and have you evicted." At that point, which was approximately fifteen minutes after he entered the warehouse, Mr. Best hung up the phone and left the premises.

61. After that matter had been raised at the bargaining table, Mr. Brisbin and Mr. Grey stepped out of the room to discuss it. During that discussion, Mr. Grey acknowledged that the Union had "some new people", undertook to "try to control them", and requested the Company to refrain from taking any punitive action against Mr. Best. Messrs. Grey and Brisbin also attempted to narrow the outstanding issues during that "one on one" conversation, but did not succeed in doing so because the Company was only prepared to move on issues which the Union considered to be relatively minor in importance, and was not prepared to move on any of the key issues. Following that discussion, Mr. Grey told Mr. Best that he thought his discussion with Mr. Brisbin had been helpful and that "hopefully there wouldn't be any action taken against [Mr. Best]."

62. On the following day, John Halbert, a Ministry of Labour Health and Safety Inspector, attended at the warehouse at the request of Mr. Best. After inspecting the premises and meeting with management in the presence of Mr. Best, Mr. Halbert ordered the Company to cause a joint health and safety committee to be established and maintained at the work place, as required by O.H.S.A. He also ordered that unattended trucks at the shipping and receiving dock be immobi­lized and secured against accidental movement. He advised management to consult with the Indus­trial Accident Prevention Association concerning tow motor safety, to involve supervisors in a safety training seminar, and to provide training concerning "pull straps blue and red weight capaci­ties", gross weights of truck vehicles, and loading. That meeting lasted from approximately 1:00 to 1:45 p.m. Mr. Best left the meeting feeling quite content, as some of his health and safety concerns had been found to be legitimate and were to be remedied.

63. Mr. Machika telephoned Mr. Grey at approximately 2:30 that afternoon and asked him if he had advised Mr. Best to contact a health and safety inspector. Mr. Grey replied in the affirm­ative and went on to say that he hoped that the Company would not take any punitive action against Mr. Best as the Union was trying to negotiate a collective agreement. Mr. Machika told Mr. Grey that he had decided to suspend Mr. Best for two days without pay. Mr. Grey was very troubled by that decision and told Mr. Machika, "I will not be responsible for the consequences."

64. After the aforementioned meeting with Mr. Halbert, Mr. Best was sent to the Airport. When he returned shortly after 3:30 p.m., his supervisor told him that Mr. Machika wanted to see him. When he went to the office, Mr. Machika gave him the following letter:

On the 7th of August 1984 a letter was put into your personnel file advising you that, on the night of August 6th, you were on company premise [sic] while off shift and were asked to leave. You were advised that this would not be tolerated in future.

On the evening of February 12, 1985. you once again entered the company premise [sicl in the evening without authorization, and after being asked to leave by the Warehouse Supervisor and Night Operations Manager, I was contacted due to the fact that you would not honour their request.

This is the second time that this has occurred and I have no choice at this time but to suspend you from active duty, without pay, for two (2) working days.

Mr. Best was quite shocked by that suspension. When he said, "Bill, what are you doing", Mr. Machika replied, "We have no safety problems in here."

65. Mr. Machika testified that he decided to suspend Mr. Best because he could not con­done his actions of interjecting himself into different aspects of Burlington's operation at his own whim, without any consultation with management. However, we are satisfied on the totality of the evidence that the two-day suspension was actually motivated, at least in part, by a desire to penal­ize Mr. Best for contacting a health and safety inspector, and for the role which he played in the unionization of the Company's work force and in the negotiations which followed the certification of the Union. As indicated above, we are also satisfied that all of the other disciplinary action taken by the Company against Mr. Best following the certification of the Union was tainted by anti-union animus.

66. Near the end of the February 14 bargaining session, the Union bargaining committee caucussed for about ten minutes before returning to advise the Company that they intended to apply for conciliation, as only a few minor matters had been agreed upon and no progress had been made on any of the key issues during the first five bargaining sessions. It was their hope that a con­ciliation officer would be able to bring the parties closer together and foster some progress on those issues. They also felt that they would have a better chance of getting an agreement if the negotiations were (in the words of Mr. Grey) "brought to a head quickly with a deadline". The Company representatives suggested that the parties continue to bargain while the Union's concilia­tion application was being processed. However, the Union representatives declined to do so as they were of the view, not unreasonably, that it would serve no useful purpose.

67. The parties next met on April 9, 1985. That meeting was a conciliation session sched­uled by John Miller, the conciliation officer appointed in response to the Union's application for conciliation. The meeting began with an announcement by the Union that it planned to file com­plaints against the Company on behalf of Mr. Best and another employee in the bargaining unit. (The latter complaint was subsequently withdrawn by the Union.) After the parties had advised Mr. Miller of what had occurred during the course of negotiations up to that time, there was a fur­ther discussion of the items remaining in dispute. The Company representatives explained Burling­ton's position to Mr. Miller and the Union by going through the Company's proposals point by point. They also reviewed the Union's proposals and responded to the ones that had not already been responded to through the Company's proposals. In an effort to resolve some of the key issues, the Union representatives indicated that they would be prepared to look at a ratio of part-time employees to full-time employees, with the requirement that part-time employees be laid off first. However, the Company was unwilling to tie itself down to a fixed ratio, and was not prepared to agree that part-time employees would be the first to be laid off. It was the Company's position that who was to be laid off would be determined by the nature of the work remaining to be per­formed. Thus, it was only willing to agree that permanent regular employees could bump perman­ent irregular employees and that permanent irregular employees could bump part-time employees. Another alternative suggested by the Union was that part-time employees be included in the bar­gaining unit. That proposal was also rejected by the Company. The Union also sought an indica­tion of the number of persons who would be permanent regular employees and the number who would be permanent irregular employees, but the Company was unwilling to commit itself, as it wanted to have the flexibility to schedule employees to work whatever hours it deemed appro­priate. The Union representatives further suggested that the parties attempt to find some middle ground concerning the Union's proposal that employees not covered by the agreement be pre­cluded from performing bargaining unit work. However, the Company was not interested in that suggestion. As indicated above, the Union had initially proposed a provision preventing the sub­contracting of any work performed by members of the bargaining unit. At the April 9 meeting, the Union representatives expressed a willingness to modify that proposal to allow subcontracting if the subcontracting did not result in the lay-off of any members of the bargaining unit. However, the Company did not find that to be acceptable. Although there was considerable discussion con­cerning the key issues, no progress was made in resolving them. This lack of progress was a source of great frustration to the members of the Union's bargaining committee. Messrs. Taylor and Best were so disturbed by the Company's intransigence that they got up and left the room.

68. Prior to the end of that meeting, the Company representatives complained that the employees were not working at their usual speed, were making too many mistakes, and were unhappy. The Union representatives indicated that they would look into those matters. They also advised the Company that they intended to request a "no board" report. In explaining the reason for making that request, Mr. Grey testified: "We were going nowhere. Sometimes agreements are reached under deadline bargaining. We felt that this had to be brought to a head one way or the other.... We'd been over these things time after time. [We requested a 'no board' report] to get a deadline so there could be the pressure of deadline bargaining so we'd get some movement and reach agreement."

69. Between April 9 and the next bargaining session which occurred on May 1, Messrs. Bigeau and Brisbin met to formulate a grievance procedure satisfactory to both parties. Mr. Bris­bin was given full authority by the Company to modify the grievance procedure in such manner as he felt appropriate. Those discussions succeeded in resolving a number of matters pertaining to the grievance procedure provisions.

70. On Sunday April 14, the Union bargaining committee met with members of the bar­gaining unit to update them on the negotiations and to conduct a strike vote. Prior to the taking of that vote in which the employees gave the committee a unanimous strike mandate, Mr. Grey explained that before calling a strike, the Union would come back to the members of the bargain­ing unit with the Company's final offer. He also explained the matter of timeliness of a lawful strike, and advised them that a strike would not be called without the approval of the International Typographical Union (the "I.T.U."), as that approval had to be obtained before they could receive strike pay. He told them that prior to granting such approval, the I.T.U. would send in an International Representative in an attempt to resolve the dispute without a strike, and that the International Representative would report back to the I.T.U. concerning whether or not a strike should be sanctioned. At that meeting the Union representatives also raised the complaints that had been made by the Company at the bargaining table concerning the employees' attitude, work­ing speed, and work-related mistakes. Mr. Bigeau's testimony in that regard was: "We told them that we would do the bargaining. We wouldn't put up with this. If the time came to be unhappy, we'd let them know. As far as I know everyone left with that understanding."

71. Claudio Cristini commenced employment with Burlington in June of 1980. He was employed in the bargaining unit as a co-ordinator at all material times (prior to the lock-out described below).unlike warehousemen who handle the freight of a large variety of customers, co-ordinators are assigned to handle distribution for a few major customers. They are in frequent contact with those customers and deal almost exclusively with their freight. Mr. Cristini told the Board that he had been "quite close" to Mr. Drake prior to certification. His mother had made Italian sausages for Mr. Drake and he was on a first name basis with him. He also told the Board that they made "little bets" from time to time. On the morning of April 26, Mr. Cristini approached Mr. Drake and asked him why bargaining was taking so long. After advising Mr. Cris­tini that he could not discuss what was actually going on in negotiations, Mr. Drake stated that "if the Union said something, the Company replied and it went back and forth like that". Since Messrs. Taylor and Best had expressed the view that Mr. Machika was responsible for the lack of bargaining progress, Mr. Cristini asked Mr. Drake if Mr. Machika was "really stalling in bargain­ing". Mr. Drake replied, "Well, Bill Machika only does what he is told to do." This reply upset Mr. Cristini, as he interpreted it to mean that Mr. Drake was the one who was stalling the negotia­tions. After lunch, Mr. Drake came back to Mr. Cristini and said, "I don't think the Union is telling you everything. Do you know that in six months [the Union] can be decertified?" He also asked him if he knew that after the employees had been on strike for six months, the Company did not have to give them their jobs back. Mr. Cristini found those statements to be "threatening types of suggestions".

72. At approximately 9:45 on May 1, the four bargaining unit members in the Company's distribution department (Claudio Cristini, his brother Clem, Gordon Dalziel, and Bill Genge) were called to the boardroom in the front office where Mr. Drake informed them that Hewlett-Packard, one of the respondent's major customers, had pulled its account and that all of its freight was to be shipped out of the warehouse by the following Friday. He also told them that jobs would be lost, but that the persons affected by that loss would be able to bump other employees because of their seniority, with the result that less senior employees would be terminated. Mr. Drake then met with Hewlett-Packard's Distribution Manager for over an hour and succeeded in persuading him that Burlington's employees would continue to provide the same high level of service to Hew­lett-Packard regardless of what was going on in negotiations. Later that day, the employees in the distribution department were advised that Mr. Drake had managed to persuade Hewlett-Packard to leave its business with Burlington as long as there was no deterioration in service.

73. The next bargaining session also occurred on May 1. The parties met at the Ministry of Labour's offices at 400 University Avenue with the assistance of Mr. Miller, who had been appointed as a mediator following the issuance of the "no board" report requested by the Union. At that meeting Mr. Brisbin announced that Burlington had hired employees to replace the mem­bers of the bargaining unit in the event of a strike or lock-out, and that those new employees were in the warehouse being trained to do the work. The Company representatives stated that the Com­pany had to keep operating because of the competitive nature of the industry. They also indicated that if Burlington did not continue to operate, work would be lost, probably irretrievably. Although the members of the Union bargaining committee were shocked by that announcement, they agreed to continue bargaining.

74. Mr. Machika also stated at the May 1 meeting that Hewlett-Packard was negotiating with one of Burlington's competitors and would probably withdraw its business from Burlington, with a consequent loss of some bargaining unit positions in the distribution department, and a con­siderable amount of revenue. He added that Burlington officials, including Mr. Drake, were meet­ing with Hewlett-Packard that day in an attempt to keep the account, but that they were not opti­mistic as Hewlett-Packard seemed to be intent on withdrawing its business from Burlington on the ground that there would likely soon be a deterioration or disruption in service due to the fact that Burlington and the Union had been unable to negotiate a collective agreement. In response to a question from Mr. Bigeau, Mr. Machika confirmed that he had been contacting non-union truck­ing firms to determine if they would make deliveries during a strike.

75. At the May 1 bargaining session, the Company provided the Union with a typed docu­ment entitled "Position of the Company with respect to Certain Outstanding Issues as at May 1, 1985" (the "position paper"). Revised proposals concerning discharge cases, hours of work, and the grievance procedure were appended to the position paper. Although a number of those revi­sions were acceptable to the Union, they did not provide a basis for resolving the key issues that remained in dispute. The Company had initially proposed that an employee who successfully com­pleted his probationary period would have his seniority date backdated to his original date of hire. However, the Union representatives had suggested that this provision might give rise to inequities in the context of persons who worked for several years as part-time employees before assuming bargaining unit positions. In response to that concern, the Company offered through its position paper to withdraw that provision. The Union agreed to the proposed withdrawal. The Company also agreed to withdraw from its job posting proposal the requirement that "the job must be in a higher wage group than the applicant's". After discussing those matters, and engaging in some fur­ther "give and take", the parties agreed to Article 10.01 (which provided that the probationary period would be ninety calendar days, that the lay-off or discharge of a probationary employee would be a matter beyond the scope of the collective agreement, and that upon successfully com­pleting the probationary period, an employee would be credited with ninety calendar days' seniori­ty), and Article 10.06 (by which an employee who had been transferred by the Company to a posi­tion outside the bargaining unit would be credited with his full seniority for time spent within the bargaining unit if he later returned to the bargaining unit). Agreement was also reached on a pro­vision under which Burlington would provide a private area for the Union representative to meet with a Union steward or an employee in some circumstances. The Company also offered to delete the last paragraph of Article 9.02 (as quoted above), and to specify a range of penalties for the mis­conduct described in parts "a", "b", and "e" of that provision. However, even with those pro­posed revisions, Article 9.02 remained unacceptable to the Union as it continued to specify dis­charge as the only penalty for "dishonesty", and for the misconduct described in part "f'.

76. On May 1 the Company also proposed the following new language concerning lay-offs:

10.05 In the event of a reduction in the hours or layoff, permanent regular employees qualified to perform the remaining work may displace permanent irregular employees. Similarly, perman­ent irregular employees qualified to perform the remaining work, may displace a part time under 24 hour person.

The Union's reaction to that provision was described as follows by Mr. Grey in his testimony in chief:

That implied that permanent irregular employees would be laid off first. They would bump per­manent irregular employees who would in turn bump part-time employees who were outside the bargaining unit. That revealed to our committee what we had been saying and fearing all along. The Company had now put it in words. With the language in management's rights, the language in hours of work, and the language in this clause, it was foreseeable that there'd be no union left and everything else wouldn't mean a thing. That's what this clause meant to us.

77. At the end of the mediation session on May 1, Mr. Miller asked the Union representa­tives to prepare, for presentation at the next session, a revised position on what it would take, from the Union's perspective, to get a contract. In an attempt to comply with that request, the Union bargaining committee met at the Union office following that meeting and reviewed the outstanding issues. They concluded that they could offer some minor amendments in some areas, but that there was nowhere else for them to go on the key issues. Mr. Bigeau told the Board: "We could not move on the key issues.... If we typed up a document, it would have said, 'as [per] union propos­

78. Before deciding to introduce "replacement workers" into the warehouse on May 1, Mr. Drake contacted Mr. Grey and asked him for a commitment that the Union would give the Com­pany at least four or five days' notice before a strike occurred. Since that commitment was not forthcoming, management decided to bring the replacement workers into the warehouse prior to the time at which a legal strike could occur, for the purpose of training them to replace the Com­pany's traditional work force in the event of a strike. They were aware that bargaining unit employees could embark upon a lawful strike at midnight on May 3, and were of the view that three days was the bare minimum of training time required.

79. The introduction of those new workers into the warehouse created a high level of ten­sion. As one would expect, bargaining unit employees were less than enthusiastic about training persons, whom they characterized as "scabs", to take over their jobs during a strike. Some of those persons took it upon themselves to perform many of the functions usually performed by reg­ular workers, leaving some of the regular workers with little to do. However, they made many mis­takes due to their unfamiliarity with the Company's operations. Others, such as a burly fellow whose military garb landed him the nickname "G.I. Joe", performed little or no work and were viewed by at least some of the bargaining unit employees as having been brought in by the Com­pany in an attempt to intimidate them. In addition to the replacement workers, salesmen and other persons excluded from the bargaining unit observed bargaining unit employees while they were working in order to gain familiarity with the work, and to keep a watchful eye on their perfor­mance. They also accompanied bargaining unit employees when they went to the Airport to pick up or deliver freight.

80. On May 2 members of management gave each of the bargaining unit employees a copy

of the following letter concerning benefit coverage during a legal work stoppage:

Dear Employee:

As you know, after midnight on Friday May 3, 1985, the Company and the Union will be in a legal work stoppage situation.

If such occurs, your benefit coverage will cease during the period of the stoppage.

To help in minimizing the initial dislocation of such benefits cessation, the Company is prepared to make arrangements with the insurers for coverage to continue for the first month of the stop­page upon receipt of payment in advance from the Union of $1,452.89 to cover the monthly group cost.

If the work stoppage continues beyond one month, each subsequent month will be dealt with on an individual basis.

Regards,

(signed) Bill Machika.

81. A further mediation session was held on May 3. Richard Weatherdon, an I.T.U. Inter­national Representative, attended that session along with Messrs. Grey, Bigeau, Taylor, and Best. Mr. Weatherdon was present in accordance with the aforementioned I.T.U. policy of sending an International Representative to the bargaining table to attempt to resolve the dispute and to report to the I.T.U. as to whether or not strike approval should be given.

82. When the mediator asked the Union representatives for their revised position on May 3, they told him that they did not have one, and asked him to obtain a final offer from the Com­pany. After speaking with the Company representatives, Mr. Miller returned to the Union repre­sentatives and again asked them to give him their bottom line position. The Union representatives spent the rest of the morning and the start of the afternoon preparing a revised proposal for pres­entation to the Company. Through that revised proposal, the Union withdrew a number of its ear­lier demands, including provisions which preserved existing working conditions where they were superior to those contained in the agreement, precluded the Company from requiring employees to operate equipment in unsafe operating condition, required the Company to continue to provide clean and sanitary lunchroom and washroom facilities and to maintain safe and healthy plant con­ditions, prohibited the Company from using job transfer as a method of discipline, required the Company to provide the Union with a copy of its overtime records in the event of a dispute con­cerning overtime payments, and stipulated that only employees covered by the agreement would be trained to operate or maintain new equipment introduced to perform bargaining unit work. The Union proposal accepted Burlington's management's rights clause with the addition of a "just cause" limitation on disciplinary action. That proposal also accepted some Company proposals on matters of secondary importance, and offered some revisions concerning job postings, the griev­ance procedure, and the Company's discharge provision. However, the Union's position remained unchanged concerning the key issues which included benefits for permanent irregular employees, union security, subcontracting, order of lay-offs, hours of work, and voluntary overtime. The Union's revised proposals were presented to the Company by the mediator at about 2:15 p.m. However, that proposal, which Mr. Machika described as "a nickel and dime proposal", was not acceptable to the Company.

83. At approximately 4:30 that afternoon, the Company presented a proposed collective agreement which was referred to by the parties as the Company's "final offer". In presenting that offer on behalf of the Company, Mr. Brisbin noted that there could potentially be a legal work stoppage as of midnight that night. He also indicated that a pre-condition to settlement would be the withdrawal of the complaints that had been filed with the Board. The Union bargaining com­mittee caucussed for about half an hour to examine that final offer before meeting with Company representatives again. During the course of that meeting, Mr. Brisbin told the Union representa­tives that Burlington was prepared to apply for a government supervised vote on its offer, pursuant to section 40 of the Act. However, the Company did not do so because the Union representatives indicated that they would take the offer to the membership for a vote.

84. Mr. Bigeau testified that the contents of the Company's final offer confirmed the Union representatives' suspicions that the Company never had any intention of entering into a collective agreement with the Union. Mr. Grey viewed the final offer as a challenge to the Union and as a clear indication that Burlington was not prepared to bargain fairly and reach a collective agree­ment. The offer incorporated very little of the language proposed by the Union, and demonstrated no willingness on the part of the Company to compromise on any of the key issues of concern to the Union. The aforementioned distinctions between permanent regular employees and permanent irregular employees remained in place, as did the mandatory time limits, and the mandatory over­time provision. Although a range of penalties had been specified for some of the offences listed in Article 9.02, discharge remained the sole penalty specified for others. Moreover, that provision continued to preclude arbitral review of the appropriateness of the disciplinary penalty selected by the Company. (Mr. Machika testified during re-examination that the language precluding arbitral review was "something that just didn't get deleted in the rush to put it together on May 3". How­ever, that explanation was never provided to the Union at any time prior to the hearing of this matter.) The Company's position also remained unchanged concerning union security, job posting, and the inclusion of "dependability and reliability" as factors in Article 10.04. Burlington remained unwilling to guarantee hours of work or fixed shifts, but it proposed the following addi­tion to Article 12.01:

While the Company cannot guarantee the number of hours to be done per day or per week or otherwise, the Company does recognize the desirability of a permanent regular employee being employed for five (5) eight (8) hour days in a forty (40) hour work week. The Company shall endeavour to provide such work to permanent regular employees subject always to the availabil­ity of such work through quantity of business, scheduling of business, customer demands, incle­ment weather, utility and mechanical breakdowns, labour disputes and other similar conditions beyond the control of the Company.

Mr. Machika told the Board that the respondent decided to add that language as a result of "a lot of discussion with the Union at the bargaining table", and statements by employees in the bargain­ing unit that the Company was "shafting them". Thus, he testified that the purpose of that lan­guage was "to try to assure employees that [management] was not going to use the non-guarantee

and that [management] would do [their best to give them as many hours as possible". However, the Union representatives found that language to be unacceptable as they were of the view that it was unenforceable. Moreover, they remained deeply disturbed by the Company's revised proposal concerning Article 10.05 (as quoted above).

85. Although Burlington did not receive the Union's monetary demands until July of 1985, the final offer presented to the Union by the Company on May 3 included a monetary offer. How­ever, the salary scale (Attachment "A" to that offer) had only two classifications: warehouseman and distribution co-ordinator. Thus, the Company was proposing to eliminate the classifications of lead hand and driver/warehouseman, which were the classifications held by Mr. Taylor and Mr. Best, respectively. That attachment also specified that all salaries presently above the scale would be frozen. Thus, Mr. Taylor, whose wage rate as a lead hand was approximately a dollar more per hour than the highest rate in Attachment "A", would receive no wage increase under the Com­pany's proposal. The only explanation offered by the Company for the elimination of the lead hand classification was that the Company's other lead hand, Roy Burns, who was not on the Union bargaining committee, had approached Mr. Machika and stated that he did not feel he could do his job effectively while being a member of the bargaining unit. Although Mr. Taylor had been with the Company longer than Mr. Burns, management (lid not ask Mr. Taylor (or any other member of the Union bargaining committee) for his views on the subject. Mr. Taylor was very upset about the proposal to eliminate his position, as was Mr. Best. As a driver/warehouseman, Mr. Best had traditionally received 25 cents per hour more than a warehouseman. The Company's proposal would have resulted in a wage increase of only about 3.6 percent for Mr. Best (from $8.93 to $9.25 per hour). Attachment "A" to the final offer also specified that "[a]ll future hired warehousemen must obtain a 'D' licence prior to completing their ninety-day probation period." In attempting to provide a rationale for that provision and for the proposed elimination of the driver/warehouseman classification, Mr. Machika told the Board that the Company had a surplus of warehousemen drivers. He also stated that with the change to dedicated airplanes, there would not be the necessity for that classification. He added that management was of the view that all ware­housemen should drive the trucks.

86. Messrs. Taylor and Best were also very agitated by the fact that the Company's final offer made no mention of work boots, uniforms, and shift premiums. Thus, they viewed the pro­posal as one which would deprive employees of some of the benefits which they had previously received. When that matter was raised with the Company's representatives during the "shouting match" which occurred after the Union had reviewed the offer, Messrs. Machika and Brisbin looked through the proposal, stated that the omission of those benefits had been an oversight, and indicated that the employees would receive them. During that heated exchange, Mr. Taylor told the Company representatives that there was "no way that [his] boys would buy this". He also accused the Company of having "sold them down the river". Mr. Weatherdon launched into a pro­longed personal attack on Mr. Brisbin and his law firm, which came to an end only when Mr. Miller interjected in an attempt to calm things down.

87. During the morning of May 3, Mr. Drake came out of the office at the Toronto termi­nal, walked to the distribution area in the middle of the warehouse where Claudio Cristini and some other bargaining unit members were working, and told them in a frustrated tone of voice that the Union had come to the mediation session that morning unprepared. He stated that the Union had failed to prepare a revised set of proposals as the mediator had requested them to do for that meeting. He added, in a highly sarcastic tone, "They're doing a real good job for you." In his testi­mony before the Board, Mr. Drake acknowledged that he had used what he characterized as "very strong language" that day to tell the employees what he thought of their Union and its representa­tives, who had been telling them that the Company negotiators had been dragging their feet but were (in his view) themselves wasting precious time by "showing up without having done their homework".

88. Mr. Drake returned to the distribution area that afternoon and told Mr. Cristini and other employees in that area that the Union bargaining committee had gone out for lunch without having made "any sort of attempt to negotiate". About an hour later he returned yet again to the distribution area where bargaining unit members Gordon Dalziel and Bill Genge were working. Claudio Cristini walked over to them in order to hear what Mr. Drake had to say, and Regional Operations Manager John Galley also joined them. In the ensuing discussion Mr. Cristini expressed the opinion that the Company was "out to shaft the employees". In support of that view he referred to management's refusal to guarantee full-time employees forty hours of work, their refusal to extend benefit coverage to all of the employees in the bargaining unit, and their reserva­tion of the power to replace full-time employees by using part-time employees. During that heated conversation, Mr. Drake suggested that the Union had not been properly informing bargaining unit employees of what was happening at the bargaining table. He also stated: "Now you guys are going to know what it's like to play hard ball. No little printing union is going to push me around." As he walked away, Mr. Cristini asked Mr. Drake, "Why can't you just let us be?" Mr. Drake replied, "Deunionizing is the way everything is. Don't you read the papers?" At that point Mr. Galley stated: "Look at Dallas-Fort Worth and Minneapolis-St. Paul. They're decertifying." Mr. Drake then said, "Chicago has been on strike for a year and a half, and that there is probably going to be a decertification because the original employees have all left and are no longer active on the picket line." When Mr. Cristini said, "Then they must still be getting strike pay", Mr. Drake asked, "Do you think that your little printing union is going to keep you going for that long?"

89. Toward the end of the day shift on May 3, Claudio Cristini, Clem Cristini, and Gordon Dalziel were told that the Company's final offer would soon be available and that they would be paid overtime if they stayed to wait for it. They waited in their supervisor's office from five o'clock until about 6:30, when they and the night shift employees were given copies of that offer, along with the following memo from Mr. Drake:

Dear Fellow Employee:

As you are aware, the Company and your representatives have been meeting for several months in an attempt to negotiate an agreement.

While up until now we have not been able to agree upon a final document there has been sub­stantial movement from each side's original proposal towards an agreement which provides security and competitive compensation for you the employee, but which also allows the Com­pany to remain competitive on both a cost level, and a service level.

The Company at this point feels that our offer, a copy of which is attached, provides for good working conditions and fair compensation to our employees, while it provides to the Company the flexibility that it needs to manage the business, and maintain our position as Canada's ]ead­ing airfreight forwarder.

Because we feel that this offer is fair to all parties involved, we will request that the Labour Board conduct a secret vote on this last offer.

I urge each of you to read this offer, as we feel it does address both the concerns of you the employee, and the Company. Together we have built the strongest air cargo organization in Canada, and we can work together in the future to maintain our # 1 position.

Contrary to the Union's allegations in these proceedings, we are satisfied on the totality of the evi­dence that those materials were not given to any of the employees until after the Company had presented its final offer to the Union bargaining committee.

90. After giving the employees about ten minutes to read the offer, Mr. Cordeiros returned and asked them what they thought of it. Claudio Cristini replied, "It stinks", and Mr. Dalziel said, "It's terrible." They also went to see Mr. Drake in the front office to ask if the wage increases offered by the Company would be retroactive to the commencement of bargaining, but were told that they would be effective only from the date of the contract.

91. At approximately 10:00 p.m. on May 3, Messrs. Taylor and Best went into the ware­house because Mr. Best wanted to clean out his locker since he thought that a strike might begin that weekend. They also wanted to let the employees know that they would be available at a nearby hotel after work to discuss the events of the day. Since they were still very angry about the terms of the Company's final offer, they pounded their fists on a counter while they were in the warehouse and yelled, "Close them down! Lock them up!" Mr. Drake was on the premises at the time and heard the noise that they were making. As he was approaching them, Mr. Drake heard Mr. Taylor refer to the "replacement workers" in the warehouse as "scabs". Mr. Drake then ordered Mr. Taylor and Mr. Best to "get the hell out of the building" and added that it was Mr. Taylor who was "the scab". After complying with Mr. Drake's direction to leave the warehouse, Messrs. Taylor and Best drove around the parking lot several times in Mr. Taylor's car. When the coffee truck arrived, they stopped by the truck to talk to some of the employees during their break. Although in his evidence before the Board he denied doing so, we are satisfied on the totality of the evidence that while he was in the parking lot, Mr. Best spit on Mr. Drake's car and called out to Mr. Drake, "You should get your car washed."

92. On Saturday May 4, Mr. Drake telephoned Mr. Taylor at home and spoke with him for about 45 minutes. Mr. Drake commenced the conversation by saying that after all the years that they had worked together, he thought that they had a better relationship than was indicated by the yelling, pounding on the counter, and spitting on his car that had occurred on the previous eve­ning. Mr. Taylor responded by saying that he had not spit on Mr. Drake's car and that he was sorry if anyone else had done so. With regard to the pounding on the counter and yelling, Mr. Tay­lor said that there had been a really tough meeting between the Company and the Union on Fri­day, and that he "flew off the handle" because he was very upset about the lack of progress in negotiations and about the contents of the Company's final offer. Mr. Drake replied that he knew how Mr. Taylor tended to get wrapped up in causes, but that he could not understand how Mr. Taylor had gone from being so pro-Company to being so pro-Union. The possibility of violence and damage to Company property was also discussed during that conversation. Mr. Drake asked Mr. Taylor not to get involved in any violence or damage as it could not come to any good. Mr. Taylor replied that there were some "hot-blooded young guys" in the bargaining unit and that he did not know if he could control them all of the time. When Mr. Taylor expressed the view that Burlington's final offer was ludicrous, Mr. Drake said that it was as good an offer as the employees were going to get in view of the competitive nature of the business. He characterized Local 91 as a "two-bit union" that was losing membership. He further stated that he was not going to let any union tell him how to run his company. He also talked about the parent company's Chicago branch. He asked Mr. Taylor if he knew that "Chicago was out [on strike] for over two years" before they "came into line".

93. Members of the bargaining unit met on Sunday evening May 5 at the Avion Hotel to vote on the Company's final offer. Earlier that day, the Company gave copies of the following letter to bargaining unit employees who were at work that day, and arranged for copies of the letter to be dropped off at the hotel, outside the room in which the meeting was to be held:

Dear Fellow Employee:

Inadvertently, we failed to include our present and existing policies regarding work boots, cloth­ing and shift premiums in the agreement which was distributed on Friday, May 3,1985.

The following will be added to the agreement immediately:

-WORKBOOTS

One pair of steel toe work boots per year for which the company will pay 50% to a maximum of

$30.00.

-UNIFORMS

The present policy with respect [sicl to each permanent regular employee will receive 7 uni­forms per week and permanent irregular employees will receive 4 uniforms per week [sic].

-SHIFT PREMIUMS

Afternoon, starting time after 12H00 will be an additional $.25 per hour. Evening shift, starting time after 22H00 will be an additional $.40 per hour. Saturday shift, will be an additional $1.50 per hour worked on Saturday. Sunday shift will be an additional $2.00 per hour worked on Sun­day. Sunday, after 22H00, will be treated as an evening shift ($.40 per hour).

Mr. Drake dictated that letter to Mr. Cordeiros over the telephone on the morning of May 5. It was signed by Mr. Cordeiros on Mr. Drake's behalf. The Union bargaining committee was not provided with a copy of that letter prior to its distribution to members of the bargaining unit. How­ever, as indicated above, the Company representatives had advised the Union bargaining commit­tee on May 3 that the omission of those items from the Company's final offer was inadvertent, and had further indicated that the employees would receive them. We view that letter as being merely confirmatory of that information. It was distributed to bargaining unit employees so that they would have the entire Company proposal before them in writing on May 5 when they voted for its acceptance or rejection. Under the circumstances, we agree with counsel for the respondent that there is no merit in the Union's contention that the distribution of that letter was an attempt by the Company to circumvent the Union as the employees' certified bargaining agent, or to discredit the Union in the eyes of the bargaining unit members.

94. At that meeting on May 5, the employees voted unanimously to reject the Company's final offer. The vote was conducted by secret ballot. Following the vote employees asked, "What happens now? When do we go on strike?" Mr. Grey advised them that Local 91 did not have I.T.U. approval to call a strike and that they would not be going on strike at that time. He added that it was important that the Union be able to demonstrate that it had control of the situation. Accordingly, he requested the employees to remain at work and continue to do their jobs. He urged them not to work to rule or engage in any other job action. He also indicated that he would contact management to advise them that the Company's offer had been rejected.

95. The warehouse employees reported for work at their normal starting times on Monday May 6. When Mr. Best arrived, Mr. Machika asked him what was happening. Mr. Best's reply was, "I can't say anything but we're here aren't we?" Mr. Machika then telephoned Mr. Grey at home at approximately seven o'clock that morning to ask him if the employees were going on strike. Mr. Grey replied "No, as a matter of fact Bill I was going to call you when I got to the office and let you know the result of the vote. The employees voted it down 25 to nothing." Mr. Machika then asked Mr. Grey, "Where do we go from here?" Mr. Grey's response was that he wanted to return to the bargaining table to continue bargaining. However, Mr. Machika was non­committal with regard to that request.

96. On May 7 management gave a copy of the following memo (Exhibit 1 in these proceed­ings) to each bargaining unit employee:

To: All Warehouse Staff

From: Jim Drake

Date: May 07, 1985

Subject:Labour Situation

On May 3rd, the Company presented its final offer to every member of the Bargaining Unit as well as your Union Negotiating Committee and the ontario Labour Relations Board.

It is our understanding that a vote was conducted on Sunday May 5th, at which time the mem­bership decided to reject this reasonable offer.

On Monday, May 6th, we continued to operate as normal but management have noticed that it is becoming increasingly difficult, under the present tense situation, as there have been increas­ing inaccuracies with respect to our bunking and checking in of freight.

We would therefore request that each individual member, or collectively as a Unit, advise man­agement in writing of your acceptance of the offer dated May 3rd, or in the best interest of our customers and service standards, we must lock out all employees who have not replied in the positive at 07:00, on May 8, 1985,

Regards

(signed) Jim Drake

The Company did not inform the Union that it was making that offer to individual employees, nor that it intended to lock out any employees who did not accept the offer.

97. Mr. Drake told the Board that the wording of the final paragraph of that letter came from Mr. Brisbin, because of how legally delicate it was as to what the Company could or could not say at that time. In explaining the Company's decision to lock out its employees unless they accepted the Company's final offer, Mr. Drake told the Board: "As of May S the Union was in a legal position to go on strike. We felt we had a loaded gun to our head. We had absolutely no choice but to lock the employees out so that we could continue on with the business. Plus, as of May 6, the problems with the mishandling of shipments materialized all over again.... We really had no alternative. The mishandling of shipments was starting to cause us real problems internally and with our clients. If it would have continued much longer we could have had much of our busi­ness in jeopardy." He also testified that the lock-out letter was distributed to employees to make them aware that the Company was very firm in its offer, and that management was "not going to put up with any more of the shenanigans and sabotage that was taking place." As an example of the sabotage to which he was referring, Mr. Drake mentioned a piece of freight on which a zero had been changed to an eight by an unknown person, who (in Mr. Drake's view) intentionally mis-bunked that piece of freight. Mr. Drake told the Board (in cross-examination by Union counsel) that management's intent was to get a majority of the employees to accept the Company's final offer. However, he acknowledged that the memo does not say that there would not be a lock-out if a majority of the employees did accept that offer. Moreover, he agreed with Union counsel that if ''someone as an individual had accepted the offer'', that person would have been able to come back to work for the Company during the lock-out, and that anyone who refused to accept it would be "out of work and pay".

98. When Mr. Richard handed that memo to Claudio Cristini, he asked him if he fully understood the last paragraph, and stated that it was Mr. Cristini's choice to go in and sign the con­tract by himself or with other people. Robert Miller was also given a copy of that memo by Mr. Richard on May 7 when Mr. Miller arrived at the warehouse to begin work at 4:00 p.m. Approxi­mately two hours later, Mr. Richard approached Mr. Miller in the warehouse and asked him if he had switched hours with his brother (Steven Miller). After Mr. Miller confirmed that he had done so, Mr. Richard asked him when that had occurred. When Mr. Miller indicated that the switch of hours had been in place for about a month, Mr. Richard stated that Mr. Miller had not yet com­pleted his probationary period "by working regular hours". Mr. Richard also told him that he had the option of either accepting the Company's offer or being locked out, but added that if he did not accept the offer, his employment could be terminated in view of his probationary status. Although Mr. Miller elected not to accept the offer (and was locked out with the rest of his co-workers), he had not been discharged by Burlington as of January 7, 1986 when he testified before the Board in these proceedings, nor is there any evidence that he was subsequently discharged by the Company. Nevertheless, it is clear that the respondent, through Mr. Richard, contravened section 66 of the Act by suggesting that Mr. Miller might be dismissed if he declined to accept the Company's final offer.

99. After Mr. Richard had given him a copy of that memo, Dale Robertson was approached by Mr. Kaye, who led him to the washroom where he was offered an opportunity to work a double shift at the new rate if he was willing to accept the Company's offer. When Mr. Robertson told Mr. Kaye that he was not prepared to do that because he did not want to let his friends down by "stabbing them in the back", Mr. Kaye said, "They'll be needing a lead hand and you look good for the job." Mr. Robertson who, not unreasonably, was of the view that Mr. Kaye was attempting to bribe him, also rejected that offer. During the course of that conversation, Mr. Kaye also offered to secretly transport Mr. Robertson to work in his truck during the lock-out. He also requested Mr. Robertson to pass on that offer to certain other bargaining unit employees. Mr. Kaye made a similar offer directly to James Brown, Gordon Dalziel, and Brian MacDonald.

100. Mr. Kaye was not called as a witness in these proceedings. Thus, the evidence concern­ing his aforementioned statements to bargaining unit employees was uncontradicted. Messrs. Drake and Machika told the Board that Mr. Kaye was not authorized to make any offers of that type to employees. Mr. Drake testified that about a week before the lock-out, management specifi­cally told Mr. Kaye to curtail any discussions about such matters as they had become concerned, from some of the things he had requested permission to say to employees, that he did not know what the guidelines were concerning what management could and could not say during negotia­tions. For example, he asked Mr. Drake if the Company could make various commitments to spe­cific individuals concerning job protection, seniority, and guaranteed hours. Mr. Drake testified that he directed Mr. Kaye not to communicate with employees about such matters, and to clear with upper management anything that he wished to say. Thus, it was the respondent's position that Mr. Kaye made those offers "on a personal basis, not on a Company basis".

101. Mr. Drake had another lengthy conversation with Mr. Taylor on the evening of May 7. He opened the conversation by stating that he wanted to thank Mr. Taylor and the other employ­ees for having continued to work that night just as hard as they had ever worked before, in spite of the pressure that they were under. He also told Mr. Taylor that as the lead hand who had set the tone for the rest of the workers, he was to be congratulated. They discussed the Company's use of security guards and replacement workers, and the possibility of violence on the picket line. Both of them expressed the hope that there would not be any violence. When Mr. Drake asserted that bar­gaining unit employees had been intentionally misplacing freight in the warehouse, Mr. Taylor stated that the errors were occurring because the Company was using outside workers, with a mini­mum of training, to do the work. In discussing the Union, Mr. Drake expressed the opinion that "unions are leeches" which "don't create the work" and "don't do the work". He also said: "I am in charge. I run the show. No union is going to tell me how to run the Company. I know the Union better than you. I know that there are clauses in [the Company's final offer] that Doug Grey could never sign." He also stated that he would never agree to a union security clause which required every employee in the bargaining unit to become a member of the Union. Mr. Drake suggested that it was unfair that employees perceived Mr. Machika as the "bad man standing in the way of a fair contract", as it was he, not Mr. Machika, who had the final say on everything. When Mr. Tay­lor complained that employees had not had a raise in two years, Mr. Drake said, "As long as this keeps up they're not going to get one." Mr. Drake also indicated that Burlington had the full back­ing of its parent company, with annual sales approaching half a billion dollars, and suggested that the Union would not be willing to pay strike benefits for very long as it was in financial trouble. He referred again to the fact that Chicago employees had been on strike for the past two years, that all of the original employees had left, and that the union was probably going to be decertified. He added, in a sarcastic vein, that it "really made a lot of sense" for the Chicago employees "to be on strike for two years and end up without a contract and totally out of a job". When Mr. Taylor asked why it would take two years to decertify, Mr. Drake said, "That's the law in the U.S. In Canada it's six months". He further indicated that after the employees had been out for six months, the Company would not have to take them back. When Mr. Taylor told Mr. Drake that the employees were not going to sign the Company's final offer on an individual basis as they were very united and would remain away from work "however long it takes to get a contract", Mr. Drake said: "Do you think that after you've been out there for awhile ... that everybody will be so united?" During that conversation Mr. Taylor asked Mr. Drake why the Company was proposing to eliminate his classification as a lead hand and to freeze his salary. Mr. Drake replied that Mr. Burns had requested to be relieved of his responsibilities as a lead hand in view of the inclusion of that position in the bargaining unit. This prompted Mr. Taylor to observe that his view should also have been canvassed on the matter. Mr. Drake advised Mr. Taylor that he and Mr. Cordeiros had been considering the addition of a second supervisor on each shift. He further stated that the job would be posted in the warehouse, and expressed the view that Mr. Taylor had "the best qualifica­tions for it and the most seniority". When Mr. Taylor asked Mr. Drake, "Why are you telling me all these things", Mr. Drake said, "I can tell you these things because it's just you and me, and I could always deny it."

102. When he was asked during examination in chief if there were any clauses in the Com­pany's final offer that he felt that no "self-respecting mainstream trade union" could accept, Mr. Drake said "No." However, we do not find that response to be candid or credible in the circum­stances of this case. In this regard, we accept Mr. Taylor's evidence that Mr. Drake told him on the evening before the lock-out that he (Mr. Drake) knew that there were clauses in the Company's final offer that Mr. Grey could never sign. Moreover, we view that statement as being indicative of Mr. Drake's state of mind concerning that matter at the material time. Mr. Drake's lack of cand­our concerning that and other matters about which he testified casts considerable doubt on the veracity of much of his evidence concerning the Company's motivation for adopting and pressing to impasse its position on the key bargaining issues, arid for locking out its employees.

103. As noted above, the Company did not advise Mr. Grey, Mr. Bigeau, or any other Union official that it intended to lock out the employees in the bargaining unit unless its May 3 offer was accepted, nor did it provide them with a copy of Mr. Drake's memo of May 7 (Exhibit 1). When Mr. Grey was told by a member of the bargaining unit that management had distributed that memorandum to the employees, he was very concerned that the Company was "circumventing the bargaining agent and going directly to the employees", as he saw this as a threat to the Union's bargaining rights.

104. None of the employees accepted the Company's final offer. All of the Company's regu­lar bargaining unit employees were locked out by the Company on May 8, 1985. The lock-out con­tinued until the Board, in the aforementioned decision dated July 10, 1986, directed the settlement of a first collective agreement by arbitration. Throughout the fourteen-month period during which the employees were locked out, Burlington continued to operate its Toronto station by using mem­bers of management, other persons excluded from the bargaining unit, and the aforementioned replacement workers.

105. On May 15, 1985, Mr. Richard sent the following letter to Mr. Poutsoungas:

This letter is to advise that you have been terminated from Burlington Northern Air Freight (Canada) Ltd. effective May 10, 1985.

Since you are a temporary part-time emergency call-in personnel, working less than 24 hours per week and have failed to report for work since May 7, 1985, we are left with no other choice but to terminate you from our employment.

If you have any questions, please feel free to contact the undersigned.

As noted above, the Company had unlawfully reduced Mr. Poutsoungas's weekly hours of work to twenty-four "because of the Union". But for that unfair labour practice, it is highly probable that Mr. Poutsoungas would have been regularly employed for more than twenty-four hours per week at the time of the lock-out, and would not have been faced with the choice of either breaking ranks with his fellow employees by reporting for work during the lock-out, or risking termination. Under the circumstances, we are satisfied that his termination should be overturned and that we should direct the Company to reinstate him, with compensation for lost wages and benefits, in order to appropriately remedy one of the adverse consequences of the respondent's aforementioned unfair labour practice.

106. At the time of the lock-out, a number of bargaining unit employees were purchasing Canada Savings Bonds through payroll deductions. After being locked out, they were each given the choice of paying Burlington the balance owing on their bonds in a lump sum or having the bonds cancelled. Those options paralleled the two options which the Company had traditionally given to employees who experienced a cessation of pay. The Company's action reflected the fact that the purchase of those bonds was effected through a master loan, on which the Company remained obligated to make payments whether or not the employees who were purchasing the bonds through payroll deductions continued to earn pay from which the deductions could be made. Under the circumstances, we are satisfied that the Company's action concerning those bonds, did not, in and of itself, constitute a contravention of the Act. However, if, as contended by the Union, the lock-out was itself unlawful, losses incurred by bargaining unit employees in respect of those bonds as a result of the lock-out would be compensable. (Our consideration and resolution of that issue is contained in paragraphs 118 and 119 of this decision.)

107. During the course of the lock-out, some of the employees attempted to obtain vacation pay from the Company. Rick Best, for example, telephoned the Company on June 5, 1985 and requested his vacation pay. The payroll department transferred his call to Mr. Machika, who told him that he would look into the matter and suggested that he call back on Friday. When Mr. Best did so, Mr. Drake took the call since Mr. Machika was not there. Mr. Drake told Mr. Best that he could not have his vacation pay as he had not booked his vacation prior to the lock-out. The Com­pany's position in that regard was that only those employees who had booked their vacation with the Company prior to the lock-out, had terminated their employment with the Company after the commencement of the lock-out, or had returned to work during the lock-out, were entitled to receive vacation pay. That position was formulated after Mr. Best called to request his vacation pay, as the issue had never previously arisen at the Toronto station. Only seven of the employees in the bargaining unit had booked their vacation prior to the lock-out, as the Company had failed to follow its usual practice of posting in the warehouse for about a week in late April or early May a sheet on which employees could specify the weeks which they wished to take as their vacation. Under that practice, where the Company was unable to accommodate all of the employees' requests, vacation weeks were allotted on the basis of seniority.

108. The Company's failure to post that vacation sheet constituted a further contravention of section 79 of the Act. But for that contravention, it is probable that most, if not all, of the employ­ees would have "booked their vacation with the Company" prior to the lock-out, and thereby have become entitled to receive vacation pay under the approach subsequently formulated by the Com­pany. Thus, it is unnecessary to comment on the propriety of that approach in the present case, as employees who did not receive their vacation pay at the time at which they would have become entitled to it under that approach if the Company had posted the vacation sheet (and they had booked their vacation prior to the lock-out) must be compensated for any loss which they suffered under that approach as a result of the Company's contravention of section 79.

109. On July 22, 1985 the parties attended a meeting called by the mediator. At that media­tion session the Union provided the Company (through the mediator) with a full written response to Burlington's final offer. Since the Union had not tabled its monetary proposals prior to that time, its July 22 response provided the Company with its first indication of what the Union was seeking in that area. That response also demonstrated the Union's intention to press for a "just cause" clause without any specific penalties, and to remain firm with respect to its position on the other key issues. The Union also proposed that the probationary period be revised to sixty days; prior to the lock-out, it had tentatively agreed to a ninety-day probationary period. A further change in position occurred with respect to the factors to be considered in case of increase or decrease in the work force, and in filling job vacancies. The Union had previously agreed to seniority being a determining factor only where skill, ability, and qualifications were relatively equal; on July 22 it proposed that seniority be accorded greater weight. No progress was made at that session as both parties remained firm concerning their respective positions on the items remaining in dispute.

110. A further mediation session that was held on November 13, 1985 also proved to be unsuccessful. After waiting from 10:00 a.m. until 11:30 a.m. while the mediator met with the Union bargaining committee, the Company representatives met with the mediator to explore pos­sible avenues of settlement. Within a few moments, Messrs. Grey and Best returned to the room, asked to be excused, and said that they wanted their coats. About fifteen minutes later, Mr. Machika was paged and, upon answering the page, was advised that Messrs. Grey and Best were at the warehouse conducting a demonstration with bus loads of delegates from the Ontario Federa­tion of Labour Convention. Mr. Machika felt that the Company had been betrayed and instructed Mr. Brisbin to advise the mediator that the Company would not continue to negotiate while two members of the Union bargaining meeting were "back [at the warehouse] causing a ruckus". The Company representatives then broke off the session and left.

111. In December of 1985 the Company, on a "without prejudice" basis, offered to agree to a mandatory membership union security provision if the Union was prepared to accept all other aspects of the Company's "final offer" and to withdraw its complaints to the Board. That proposal was not acceptable to the Union.

112. We have already dealt with a number of the Union's unfair labour practice allegations. However, several important matters remain to be decided, including whether or not the respon­dent has contravened section 15 of the Act, and whether or not the aforementioned lock-out con­travened the Act.

113. Section 15 provides:

The parties shall meet within fifteen days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.

In T. Eaton Company Limited, [1985] OLRB Rep. March 491, the Board wrote as follows con­cerning two of the major functions of that provision:

33. The Board regards the section 15 duty to bargain in good faith as having at least two major functions. The first is to reinforce an employer's obligation to recognize the trade union as the lawfully selected bargaining agent of employees. To this end, the section requires an employer to negotiate with the bargaining team selected by the trade union. The employer can­not seek to determine the structure and composition of the union's bargaining team. See: High Times Publication Ltd., [1984] OLRB Rep. Oct. 1448. The Board has also concluded that the section prohibits an employer from attempting to by-pass the union and bargain directly with employees. See: A. N. Shaw Restoration Ltd., [1978] OLRB Rep. May 393.

34. The second major function of the section 15 duty is to oblige the parties to enter into serious negotiations with the shared intent of entering into a collective agreement. This requires that the parties explain their positions to the other side, so as to allow for rational, informed discus­sions. See: Canadian Industries Ltd., [1976] OLRB Rep. May 199. It also requires that an employer be prepared to enter into a collective agreement. An employer cannot enter into negotiations with the intent of ridding itself of the trade union. Neither can it simply engage in "surface bargaining", whereby it "goes through the motions" of bargaining without any real intent of signing a collective agreement. See Radio Shack, [1979] OLRB Rep. Dec. 1220. Sec­tion 15 does not, however, require that an employer agree to the terms of a collective agreement proposed by a trade union. Neither does it prohibit an employer acting in its own self-interest from engaging in "hard bargaining" so as to obtain an agreement with terms favourable to it. We would refer in this regard to the following excerpt from C. C. H. Canadian Limited, [1974] OLRB Rep. June 375, where the Board commented:

There was no evidence to suggest that the company's position on these items was other than "hard bargaining". There is no requirement that a company must make concessions or agree to a particular agenda of discussions. The parties met often and bargained hard. Because the union might have to accept an agreement "tailored to the company's measurements", to use a modified version of Mr. Peacock's own cho­sen words, is no reason to conclude that the company was bargaining in bad faith. (See Regina ex. rel. Hearn v. Norfolk General Hospital 1957 CanLII 515 (ON MAGCT), [1957] 119 C.C.C. 290 (Ont. Mag. Ct.). There was no evidence to suggest that the company was unprepared to sign an agreement; but of course it wanted an agreement on its own terms. Collective bargaining is redolent of self interest and without evidence to suggest the company's terms were so unreasonable as to suggest that, in reality, it wanted no agreement and no trade union, the Board is unprepared to grant the application.

For other decisions concerning the distinction between "hard bargaining" and "surface bargaining", see Aristokraft Vinyl Inc., [1985] OLRB Rep. June 799; Radio Shack, [1985] OLRB Rep. June 901; and the numerous authorities cited in those decisions.

114. Reference may also usefully be made to Radio Shack, [1985] OLRB Rep. Dec. 1789, in which the Board wrote, in part, as follows:

115. The fact that the company's proposals may not have been acceptable to the union, does not mean that the company was not prepared to enter into a collective agreement - albeit on its own terms; nor is it really very helpful to suggest that the proposals were predictably unacceptable". That characterization is equally applicable to the union's proposals, and if that were the test for a breach of section 15 of the Act, then the legality of a party's bargaining stance would turn on the willingness of the other side to accept it. It may be that a union's failure to achieve its stated goals will diminish its stature in the eyes of its members and make it less attractive to pro­spective members. But this does not mean that employer resistance is illegal. The union may simply have overestimated its ability to wring concessions from an unwilling employer and mis­judged the effectiveness of its strike weapon.

116. This is not to say that the Board is totally unconcerned with the content of the parties' pro­posals or that there are no limits whatsoever on the scope of bargaining. In some circumstances, the Board may well have to assess the content of the items tabled in order to determine whether an employer does not really intend to enter into any collective agreement or whether it is really refusing to recognize the union as the exclusive bargaining agent (see Radio Shack, [19791 OLRB Rep. Dec. 1220; Fotomat Canada Limited, [19801 OLRB Rep. Oct. 1397; Irwin Toy Limited, 119831 OLRB Rep. July 1064, and, particularly, Wilson Automotive (Belleville) Ltd., 119801 OLRB Rep. July 1136). Bargaining proposals may provide evidence of such unlawful motive, and the Board may also review the content of those proposals to assess whether any of the proposed items is "illegal" (see infra). However, in general, the Board's role under section 15 of the Act is one of monitoring the process of bargaining, and not the content of the proposals advanced.

117. It is often quite difficult to determine whether an employer has been contravening sec­tion 15 of the Act by means of "surface bargaining", or has merely been engaging in "hard bar­gaining" which is not proscribed by section 15. The contents of a number of the proposals tabled by Burlington during the course of the negotiations described above are consistent with its coun­sel's able submissions that it was engaging in "hard bargaining" but not in bad faith bargaining. However, when all of the provisions tabled by the respondent are viewed, as they must be, against the background of the pervasive pattern of unfair labour practices in which the respondent engaged prior to and during the course of bargaining with the Union, and in light of the statements which Mr. Drake made to Mr. Taylor and to some of the other bargaining unit employees, it becomes fairly clear that, as contended by counsel for the Union, the respondent was not bargaining in good faith and making every reasonable effort to make a collective agreement. Although the witnesses called by the respondent offered a plausible business justification for a number of Burlington's pro­posals, and for its intransigence concerning some of the key items in dispute, no such reasons were tendered in respect of others, such as Article 3.02 (which made the signing of an authorization card directing deduction of union dues part of the union security clause), Article 6.02 (which specified discharge as the penalty for participation in "any strike, picketing, sitdown, slowdown, or any sus­pension or stoppage of or interference with work or production which shall in any way affect the operations of the Company", and precluded arbitral review of that penalty); and Article 9.02 (which specified penalties for several offences, including discharge as the sole penalty for "dishon­esty", and precluded arbitral review of the type of discipline selected by the Company). Moreover, we do not find to be credible the reasons proffered for the elimination of the classifications of the two employee members of the Union bargaining committee. Having regard to the totality of the evidence, we find that this highly unusual proposal, which was first introduced as part of the Com­pany's final offer, was intended to penalize Mr. Best and Mr. Taylor for their Union activities, and to send a clear message to other employees in the bargaining unit that participation in collective bargaining through membership on the Union's bargaining committee would give rise to adverse consequences for the participants.

118. Further support for our conclusion that the Company contravened section 15 is pro­vided by some of the contents of Mr. Drake's aforementioned communications with Mr. Taylor and some of the other bargaining unit employees. As indicated above, when he telephoned Mr. Taylor on the date of certification, Mr. Drake told Mr. Taylor that the certification of the Union was unfortunate and that it "put things in a whole new ball game" in which "all things are off". He also indicated that "negotiations take an awful long time". That Mr. Drake's game plan was to stall negotiations and create a situation in which employee dissatisfaction with the lack of tangible benefits from unionization would lead to decertification of the Union may reasonably be inferred from his comments to Claudio Cristini and the other distribution employees on May 3, and to Mr. Taylor on May 4 and May 7. That Mr. Drake, as the guiding mind of the Company, was seeking to avoid a collective agreement is particularly evident from his May 7 conversation with Mr. Taylor, in which he sated: "I am in charge. I run the show. No union is going to tell me how to run the Company. I know the Union better than you. I know that there are clauses [in the Company's final offer] that Doug Grey could never sign." Having regard to the totality of the evidence, we find that such clauses were included in the Company's offer for the purpose of avoiding a collective agree­ment.

119. In finding that the respondent has contravened section 15 in the manner described above, we wish to note, in fairness to Mr. Brisbin, that there is no evidence that he (or anyone else from his law firm) was attempting to assist the respondent in evading its responsibilities under the Act. When Mr. Brisbin was given full authority by the Company to modify the grievance proce­dure in such manner as he felt appropriate, his "one on one" discussions with Mr. Bigeau succeeded in resolving a number of matters pertaining to the grievance procedure provisions. How­ever, it is evident that neither he nor Mr. Machika was given similar authority in respect of other items, as that authority resided with Mr. Drake, who, as the guiding mind of the Company, orches­trated many of the unfair labour practices described in this decision. Moreover, in the absence of detailed knowledge concerning what management was doing in the warehouse in respect of disci­plinary action, and what Mr. Drake was saying to employees such as Mr. Taylor in private conver­sations, it is understandable that Mr. Brisbin would have felt that he was merely assisting the Com­pany in hard bargaining.

120. The Union contends that the Company further contravened the Act by locking out the bargaining unit employees on May 8. The Act defines "lock-out" as follows:

1.-(1) In this Act,

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

If an employer locks out employees prior to the time limits specified in section 72(2) of the Act, such lock-out will constitute an unfair labour practice. However, a timely lock-out can also be unlawful in some circumstances. The pertinent jurisprudence in this regard is aptly summarized in the following passage from Aristokraft Vinyl Inc., [1985] OLRB Rep. June 799:

28. We are satisfied that if a lock-out is imposed by an employer "with a view to compel or induce his employees to refrain from exercising any rights ... under this Act", it is illegal even if it is otherwise timely. (See Irving Oil Ltd., 80 CLLC ¶14,054 (N.B.C.A.).) The Board stated in Westroc Industries Limited, [1981] OLRB Rep. March 381 at 392:

a lock-out aimed at dissuading employees from exercising rights under the Act is

never lawful and the concept of timeliness simply has no application to such activity."

[emphasis added]

That aim need not be the sole, principal, or predominant one of the lock-out. It is sufficient to establish that a lock-out is unlawful, regardless of timeliness, if unlawful intent forms even a part of the motivation for the lock-out. (See Westinghouse Canada Ltd. [1980] OLRB Rep. April 577 at 600-605, and in particular paragraphs 54-56.) It is clear, therefore, that a determination of whether the lock-out was lawful in this case must rest on our assessment of the company's motive for imposing the lock-out. That assessment, as we said earlier, cannot be carried out in isolation. Regard must be had to all of the conduct of both parties, both before and during the lock-out to ascertain whether the company had an illegal purpose in doing what it did.

The principles set forth in that passage, and in the decisions to which it refers, are grounded upon sections 64, 66, and 70 of the Act. Section 64 makes it an unfair labour practice for an employer to interfere with the representation of employees by a trade union. Section 66(a) precludes an employer from discriminating against a person in regard to employment, or any term or condition of employment, because the person was or is a member of a trade union, or was or is exercising any other rights under the Act. Section 66(c) prohibits an employer from seeking, by the imposi­tion of a pecuniary or other penalty or by any other means, to compel an employee to continue to be or to cease to be a member or representative of a trade union, or to cease to exercise any other rights under the Act. Section 70 proscribes the use of intimidation or coercion in that regard.

119. The application of those principles and provisions to the facts of the instant case results in a finding that the May lock-out was unlawful, as contended by the Union. Having regard to all of the evidence and the submissions of the parties, we are satisfied that at least part of the respon­dent's motivation for the lock-out was a desire to punish employees for having exercised their rights to join a union and engage in collective bargaining, and to dissuade them from continuing to exercise those rights. In view of that finding, it is unnecessary to determine whether the Company, through Mr. Drake, further contravened the Act by causing to be distributed to bargaining unit employees the memo of May 7, 1985 (Exhibit 1) which invited employees, individually or collec­tively as a unit, to advise management in writing of their acceptance of the Company's final offer. We also find it unnecessary to determine whether Mr. Kayes' statements to Messrs. Robertson, Brown, Dalziel, and MacDonald on May 7 constituted unfair labour practices, as they would not give rise to any additional remedial relief against the respondent in the circumstances of this case. The same is true of the offers of promotion which the Union contends were unlawfully made by members of management to various members of the bargaining unit.

120. Before turning to remedial considerations, we propose to briefly set forth the reasons why, in the aforementioned decision dated July 10, 1986 in File No. 0819-86-FC, we directed the settlement by arbitration of a first collective agreement between the Union and the Company under section 40a. That section provides, in part, as follows:

40a.-(I) 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 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.

(3) Where a direction is given under subsection (2), the first collective agreement between the parties shall be settled by a board of arbitration unless within seven days of the giving of the direction the parties notify the Board that they have agreed that the Board arbitrate the settlement.

121. That provision gives statutory recognition to some of the potential difficulties which may be encountered in achieving a first collective agreement. Although it is remedial legislation which should be liberally construed and interpreted, section 40a does not supplant the primacy of the free collective bargaining process, nor provide for automatic access to arbitration in all cases where the parties are unable to negotiate a first contract. However, it does oblige the Board to direct the settlement of a first collective agreement by arbitration where the process of collective bargaining has been unsuccessful because of one or more of the conditions or circumstances listed in parts (a) to (d). In the instant case, the respondent did not have reasonable justification for the uncompromising nature of the bargaining position which it adopted with respect to certain aspects of Articles 3.02, 6.02, and 9.02, as described above, nor with respect to the elimination of the clas­sifications of the two employee members of the Union bargaining committee. (In the circum­stances of this case, it is unnecessary to determine whether the respondent had reasonable justifica­tion for the uncompromising nature of the bargaining position which it adopted in respect of other bargaining issues.) Moreover, by engaging in "surface bargaining", the Company failed to make reasonable or expeditious efforts to conclude a collective agreement. Thus, we are satisfied that the conditions or circumstances specified in section 40a(2)(b) and (c) were present in this case and that they, together with the pervasive pattern of unfair labour practices described above, caused the process of collective bargaining to be unsuccessful. That pervasive pattern of unfair labour practices, which included contraventions of sections 15, 64, 66, 70, and 79, is another "reason the Board considers relevant". Thus, the circumstances of the instant case also fall within the ambit of section 40a(2)(d). Accordingly, since it appeared (and still appears) to the Board that the process of collective bargaining was unsuccessful because of conditions or circumstances listed in para­graphs (b), (c), and (d) of section 40a(2), the Board was required under that provision to direct the settlement of a first collective agreement by arbitration.

122. It remains for us to determine the appropriate remedial relief to be awarded in respect of File Nos. 0037-85-U, 0039-85-OH, and 0446-85-U. A cease and desist direction in respect of the unlawful lock-out is not required since, by virtue of section 40(a)(13), issuance of the afore­mentioned direction under section 40(a)(2) obligated the respondent to "forthwith terminate the lock-out and…forthwith reinstate the employees in the bargaining unit in the employment they had at the time the…lock-out commenced". However, the employees are entitled to be compen­sated for wage and benefit losses (including losses incurred in respect of Canada Savings Bonds) sustained by them as a result of the unlawful lock-out. The Union is also entitled to compensation for reasonable expenses which it incurred as a result of the unlawful lock-out, such as payments (analogous to strike pay) made to bargaining unit employees during the course of the lock-out.

123. Some of the relief requested by the Union in its complaint under section 89 of the Act is no longer necessary or appropriate in view of the fact that the statutory "freeze" period has ended, and in view of the fact that the parties are now bound by a collective agreement which prescribes wages, benefits, and other terms and conditions of employment for members of the bargaining unit. However, employees are entitled to compensation for the losses which they suffered during the statutory "freeze" period as a consequence of the respondent's contraventions of section 79. Moreover, the aforementioned discipline that was imposed in contravention of the Act must be rescinded, and those employees who were unlawfully suspended must be compensated for their wage and benefit losses. The same is true of the employees who were unlawfully demoted, or who had their hours of work unlawfully reduced. Moreover, as noted above, Mr. Poutsoungas is to be reinstated, with compensation for lost wages and benefits.

124. With respect to the respondent's breach of section 15, as recently noted by the Board in Forintek Canada Corp., [1986] OLRB Rep. April 453, at paragraph 58, "[t]he justification for an award of damages for breach of the duty imposed by section 15 of the Act and the basis on which such damages might be assessed were both explored at length in Radio Shack, [1979] OLRB Rep. Dec. 1220, at paragraphs 96 to 115, Canada Cement Lefarge Ltd., [1981] OLRB Rep. Dec. 1722, and Fotomat Canada Limited, [1982] OLRB Rep. July 1020." Although not every contravention of section 15 will result in an award of damages (see Canada Cement Lafarge, supra, at paragraph 26), we are satisfied that such an award is appropriate in the instant case. We will also follow the normal course of directing the respondent to post a notice in conspicuous places in the work place to advise employees of the results of these proceedings, and of their rights under the Act, and to remedy, at least to some degree, the adverse psychological impact of the respondent's contraven­tions of the Act: see Holiday Juice Ltd., [1984] OLRB Rep. Oct. 1449, and Valdi Inc., [1980] OLRB Rep. Aug.

125. For the foregoing reasons, the Board, in the exercise of its remedial discretion under sections 89 and 93 of the Labour Relations Act, and section 24 of the Occupational Health and Safety Act, hereby declares that the respondent has contravened sections 15, 64, 66, 70, and 79 of the Labour Relations Act, and section 24(1) of the Occupational Health and Safety Act, and hereby directs that the respondent:

(1) cease and desist from contravening sections 64, 66, and 70 of the Labour Relations Act, and section 24(1) of the Occupational Health and Safety Act;

(2) pay to the Union, and to bargaining unit employees, compensation for their respective losses resulting from the respondent's unlawful acts and omissions, including, but not limited to:

(i) wages, benefits, and other losses resulting from the respondent's contraventions of section 79 of the Act;

(ii) bonuses and other losses resulting from the respondent's contraventions of section 66 of the Act;

(iii) losses incurred as a result of the respondent's contravention of section 15 of the Act; and

(iv) losses (including losses incurred by employees in respect of Canada Savings Bonds which were being purchased by payroll deduction) sustained as a result of the unlawful lock-out;

(3) revoke and remove from its files and records the aforementioned unlaw­ful written warnings to Rick Best, Mark Wells, Brian MacDonald, James Brown, and Dale Robertson;

(4) revoke and remove from its files and records the aforementioned unlaw­ful suspensions of Rick Best, D. J. Simec, and Dale Robertson, and compensate them for wages and benefits lost as a result of those unlaw­ful suspensions;

(5) compensate Robert Miller and Dan Poutsoungas for wages and benefits lost as a result of the respondent's unlawful reduction of their working hours;

(6) compensate Dale Robertson for wages and benefits lost as a result of his unlawful demotion;

(7) reinstate Dan Poutsoungas and compensate him for lost wages and bene­fits;

(8) pay interest on the compensation ordered by the Board, such interest to be calculated (in respect of wages and other losses which accrued over a period of time) in accordance with Practice Note 13, dated September 8, 1980; and

(9) post copies of the attached notice marked "Appendix", after being duly signed by an authorized representative of the respondent, in conspicuous places at its Toronto station, where they are likely to come to the atten­tion of bargaining unit employees, and keep them posted for sixty con­secutive working days. Reasonable steps shall be taken by management to ensure that the notices are not altered, defaced, or covered by any other material. Reasonable physical access to the premises shall be given by the respondent to a representative of the Union so that it can satisfy itself that this posting requirement is being complied with.

DECISION OF BOARD MEMBER I. M. STAMP;

I agree with the decision of the majority in all respects except for their conclusion that the lock-out was unlawful. Under section l(1)(k) of the Act, "'lock-out' includes ... a suspension of work ... by an employer ... with a view to compel or induce his employees ... to refrain from exercising any rights or privileges under the Act...." Having regard to that definition and to the fact that the lock­out was timely under section 72(2), I find that the lock-out was not unlawful. Accordingly, I would not award compensation for any losses sustained as a result of the lock-out.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH WE, RICK BEST, AND THE TORONTO TYPOGRAPHICAL UNION, LOCAL 91(REFERRED TO IN THIS APPENDIX AS THE “UNION”) PARTICIPATED. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE OCCUPATIONAL HEALTH AND SAFETY ACT BY SUSPENDING RICK BEST, AND THAT WE VIOLATED THE LABOUR RELATIONS ACT BY VARIOUS ACTS AND OMISSIONS, INCLUDING FAILING TO FOLLOW ESTABLISHED PRACTICES REGARDING SHIFT BIDS, ANNUAL PAY INCREASES, NINETY DAY REVIEWS FOR PROBATIONARY EMPLOYEES, UNIFORMS, AND DISCIPLINES USING WRITTEN WARNINGS AND SUSPENSIONS TO PUNISH EMPLOYEES FOR HAVING UNIONIZED; REDUCING THE WORKING HOURS OF ROBERT MILLER AND DAN POUTSOUNGAS, AND SUBSEQUENTLY DISCHARGING MR. POUTSOUNGAS; DEMOTING DALE ROBERTSON; FAILING TO BARGAIN IN GOOD FAITH AND MAKE EVERY REASONABLE EFFORT TO MAKE A COLLECTIVE AGREEMENT AND UNLAWFULLY LOCKING OUT BARGAINING UNIT EMPLOYEES.

THE LABOUR RELATIONS ACT GIVES ALL EMPLOYEES THESE RIGHTS:

TO ORGANIZE THEMSELVES;

TO FORM, JOIN, AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNION;

TO ACT TOGETHER FOR COLLECTIVE BARGAINING;

TO REFUSE TO DO ANY AND ALL OF THESE THINGS (SUBJECT TO APPLICABLE PROVISIONS OF A COLLECTIVE AGREEMENT).

WE ASSURE ALL OF OUR EMPLOYEES THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS;

WE WILL CEASE AND DESIST FROM CONTRAVENING THE LABOUR RELATIONS ACT AND THE OCCUPATIONAL HEALTH AND SAFETY ACT;

WE WILL PAY COMPENSATION FOR LOSSES RESULTING FROM THE ACTS AND OMISSIONS WHICH THE BOARD FOUND To BE

UNLAWFUL;

WE WILL COMPLY IN ALL OTHER RESPECTS WITH THE BOARD’S ORDER.

BURLINGTON NORTHERN AIR FREIGHT

(CANADA) LTD.

PER:

(AUTHORIZED REPRESENTATIVE)

This is an official notice of the Board and must not be removed or defaced. This notice must remain posted for 60 consecutive working days.

DATED this 19^TH day of DECEMBER 1986.