Le Syndicat Des Employes De Ser Vaas (CSN) v. SerVaas Rubber Company Inc., 1986 CanLII 1531

[1986] OLRB Rep. December 1780

2106-85-R; 2341-85-U Le Syndicat Des Employes De Ser Vaas (CSN), Applicant, v. SerVaas Rubber Company Inc., Respondent, v. Retail, Wholesale and Department Store Union, AFL:CIO:CLC, Intervener; Syndicat Des Employes De Servaas (CSN), Complainant, v. La Compagnie De Caoutchouc Servaas Inc. and Real Lauzon, Respondents, v. Retail, Wholesale and Department Store Union, AFL:CIO:CLC, Intervener

BEFORE: S. A. Tacon, Vice-Chairman, and Board Members W. G. Donnelly and H. Kobryn.

APPEARANCES: L. N. Gottheil, A. 0. Gottheil and Jean Fournier for the applicant/complainant; R. J. Drmaj and Real Lauzon for the respondent; David Jewitt, Sean Mc Gee, Marc Cousineau, Burt Lefebvre and Charles Quennville for the intervener.

DECISION OF THE BOARD; December 5, 1986

1. Board File No.2106-85-R is an application for certification dated November 18, 1985, in which the applicant requests, in the alternative, that the Board certify the applicant pursuant to section 8 of the Labour Relations Act. With respect to the certification application, an intervention was filed on April 11, 1986, by the Retail, Wholesale and Department Store Union (RWDSU) on behalf of those persons currently employed at the Cornwall location of the respondent. Accordingly, the RWDSU was added as intervener to these proceedings and the intervener's certification application is to be dealt with in accordance with section 103(3)(b) of the Act. Board File No.2431-85-U is a complaint filed under section 89 of the Act alleging violation of sections 64, (66)(a),(b) and (c), 67, 70, 72 and 75. The Board directs that the above application and complaint be and the same are hereby consolidated. For convenience, the applicant is referred to throughout as the "union" and the intervener as the "RWDSU".

2. The circumstances of this case are exceedingly complex and must be set out in detail. At this point, however, it is necessary to summarily indicate the context in which the application/complaint arises. The respondent company operates a rubber re-cycling plant in Cornwall as of October 17, 1985, but, until that date, was located in Montreal, Quebec (also referred to as the Ville D'Anjou plant). The respondent is a subsidiary of Curtis Publishing, a firm based in the United States. The applicant, the Syndicat Des Employes de Ser Vaas (CSN), is party to a collective agreement with the respondent at the Montreal site. Although the parties were negotiating a renewal of their collective agreement in the summer of 1985 and concluded an agreement on September 17, 1985, (effective to September 16, 1987), the applicant was not informed of the impending sale of the Montreal plant or the move to Cornwall. On the week-end of October 27, the employees were notified of the move, as a fail accompli, and their termination. The employees were not offered positions in Cornwall. The applicant asserts the respondent's conduct was motivated by anti-union animus, that is, a desire to rid itself of the union and its members and to escape from its obligations under the collective agreement. The applicant/complainant seeks extensive relief, including reinstatement for the Montreal employees, monetary compensation, a direction that the "Montreal" collective agreement applies to the Cornwall plant or, in the alternative, certification on the ground that, but for the alleged improper refusal to hire the Montreal employees, the applicant would have sufficient membership support or, in the further alternative, certification pursuant to section 8 of the Act. The respondent denies that the plant relocation and its hiring practices were tainted by anti-union motive or that it otherwise contravened the Labour Relations Act.

3. With respect to the certification application, the Registrar informed the applicant that it must prove status as a trade union within the meaning of section (1)(l)(p) of the Act. The Board heard evidence and the parties' submissions on this issue and ruled orally as follows:

The issue before the Board at this juncture is solely whether the applicant is a trade union within the meaning of the Act. In this regard, the Board has reviewed the evidence and submissions of the parties. As stated in Local 199 U.A.W. Building Corporation, [1977] OLRB Rep. July 472, there are a number of steps to be followed with respect to the formation of an organization wishing to establish its status as a trade union. The steps include a draft constitution, its approval by employees, the admission of employees to membership, the ratification of the constitution by the members and the election of officers pursuant to the constitution. The Board finds, and it is not seriously disputed, that these steps have been followed by the applicant. Indeed, the respondent and intervener did not suggest the applicant was not a trade union within the Province of Quebec.

Essentially, the respondent and intervener assert the applicant is not a trade union in Ontario because it is not "viable" within this Province and/or those eligible for membership are confined to Quebec because of the terminology used in the founding constitution and its amendment.

In the Board's view, membership in the applicant is not limited to persons from Quebec. The Board has reviewed the relevant documents and regards the reference to the "Code du Travail" as denoting "non-management" individuals, not a geographic restriction to Quebec. Likewise, the Board does not regard the geographic reference in the constitution as restricting the application to the Montreal region although, given the adoption of the amendments and the functioning of the applicant in accordance with that document since 1980, the Board's conclusion on this aspect does not solely turn on the words of the original constitution. That is, the Board regards the articles in the amended constitution as the relevant document.

With respect to the issue of viability, the Board adopts the reasoning in La-z-Boy Canada Limited, [1981] OLRB Rep. Apr. 460 and Rockwell International Corporation, [1981] OLRB Rep. June 780. On the instant facts, the Board is satisfied the applicant is a viable organization in Ontario. In a practical sense, given the physical location of Montreal and Cornwall, viability is not impeded. Further, given the applicant's affiliation with the CSN, the Board is satisfied that services are available through that organization which provide ample indication of the viability of the applicant in Ontario.

Finally, the Board is satisfied that, as of the date of the certification application, the applicant had members in its organization.

Therefore, the Board finds that the applicant is a trade union within the meaning of section l(1)(p) of the Labour Relations Act.

FACTS

4. Two witnesses testified for the respondent, R. Lauzon, company president, and A. Barrette, personnel consultant. Seventy-eight exhibits were tendered in evidence. The applicant/complainant called no witnesses on its behalf except with respect to the question of trade union status. The status issue was heard and determined first by the Board and questions were restricted to that issue. Having weighed and assessed the evidence, including the credibility of the witnesses, the documentary evidence and what was reasonably probable in the circumstances, the Board makes the following findings of fact.

5. The applicant union was founded in March 1972 in affiliation with the Confederation des Syndicats Nationaux (CSN). At that time, the rubber re-cycling plant was owned by UniRoyal. The union, Le Syndicat des Employes de UniRoyal, was certified for both Ville d'Anjou and another Montreal location in 1973. That decision was appealed to the Supreme Court of Canada but the certification for both locations was ultimately upheld. A strike was commenced in September 1974. In June 1975, Uniroyal decided to close both locations. The union continued its strike to force Uniroyal to reopen; the factory was occupied and a boycott organized. In September 1979, the Ville d'Anjou plant was sold to the respondent. The union changed its name to Le Syndicat Des Employes De Ser Vaas and negotiated a collective agreement with the respondent effective September 17, 1979, to September 16, 1982. That was re-negotiated for the period September 1982 to September 1985 and a third collective agreement signed, as noted, September 17, 1985, for a two-year term until September 16, 1987.

6. In Montreal, the respondent operated a rubber reclamation business which re-cycled butyl rubber from scrap inner tubes and processed scrap rubber buffings to rubber dust (crumb rubber). Prior to 1982, the company also processed scrap tires from passenger cars by removing metal and fabric from the tires and re-cycling the tires info rubber powder; this aspect was not recommenced following a fire at the plant in that year. Essentially, the re-cycling process may be described thus: the rubber was shredded, softened ("vulcanized"), strained to remove foreign matter, refined into extremely thin sheets (3/1000"), wrapped around a drum until sheets 3/4" thick were formed. The material was dipped in a latex solution to prevent sticking, cooled, dried and stored on skids for shipment. The dip proved ineffective in preventing sticking and the company eventually discontinued using this type of coating. In the tire reclamation process, the tires were shredded, the metal and fabric removed and the rubber ground into dust. The tire dust was placed in a mixer with water and chemicals, then in a "devulcanizer" to reverse the vulcanization process. The water was removed from the mixture in holoflite driers and a press. Finally, the product passed through the strainer and mill line. The two operations utilized the same equipment for part of the process and different equipment for other stages.

7. The Montreal operation was plagued with difficulties. The equipment was aging and costly to maintain and repair; breakdowns were not uncommon. Moreover, the design of the plant was flawed in that a screw conveyor was utilized to move the material through the processing steps. This conveyor system, in particular, contributed to the frequent contamination of the product. There were problems with the sheeting sticking together on the skids as well. A latex dip was developed but, as noted, did not fully eliminate the difficulty. Complaints from customers about the quality of the product, the failure to meet specifications and sticking were common; numerous letters to that effect were tendered in evidence. The company had difficulty in retaining customers and, further, incurred costs to replace orders rejected as unfit by customers and to reimburse losses occasioned by the poor quality.

8. A production committee of union and management representatives had been formed in 1982 to deal with all problems relating to productivity. The committee met weekly. Through the committee, the union received detailed information concerning the company's operation, including financial data.

9. A serious fire stopped production at the plant from September 1982 until March 1983, when the butyl rubber operation recommenced. The company evaluated re-starting the scrap tire operation; the union strongly supported re-starting this process. Some equipment was purchased and the company's line of credit increased from $400,000 to $525,000. Unfortunately, the estimates of capital investment and construction costs were wildly under the mark. By 1985, after expenditures of over $500,000, the scrap tire process was not yet operational and the market was shrinking as potential customers (e.g., Goodyear) decided not to utilize reclaimed rubber as part of the mix in their products. The company decided to suspend the scrap tire project at least temporarily. In contrast, it should be noted that the market for butyl and crumb rubber was regarded as stable.

10. By the spring of 1985, the company had a number of financial problems. Apart from a modest net profit in 1983, the company had consistently operated at a net loss. The company approached several lending institutions for additional funds, seeking to re-mortgage the property but was turned down because the firm did not show a trend of profitability and the plant was regarded as a single use structure. The parent firm, while financially healthy, faced liquidity problems at that time because of expansion into Mexico and, thus, could not divert the funds to Ser Vaas at the levels needed. Hydro Quebec had changed its main line voltage in the area in 1984. Temporary devolters had been installed at the company's property line but Hydro was now insisting on the conversion of the equipment to accept the higher voltage. Cost estimates for the conversion were in the order of $200,000. In late spring, environmental control bodies at the provincial and municipal levels notified the company that modifications to the operation would be required to comply with emission regulations; the costs involved were not insignificant. Back taxes in the amount of $73,000 were owed and eventually paid in May 1985 by the parent firm to avoid a directed sale of the property. And, accounts payable were ninety (90) days overdue. All this information was disclosed to the production committee, of which the union president, J. Fournier, was a member until January 1985 when he was replaced by M. Fournier, the union vice-president. J. Fournier, however, frequently continued to attend meetings.

11. In early 1985, the company was approached by Montco, the adjacent firm, as to whether the respondent was interested in selling the eastern portion of their property. Montco wished to expand their operations. The production committee was informed of the overture; the union, through J. Fournier, expressed vehement opposition. As the company's financial woes multiplied, in the late spring of 1985, the parent company approached Montco through the respondent's management as to the possible sale of the entire property, consisting of 10.3 acres. The parties entered negotiations: in early July a price of $1.1 million was agreed but other crucial terms remained to be discussed. Finally, a tentative sale date was set for September 3, 1985. Both parties would share the facilities until December 31, 1985 and April 30, 1986, for various parts of the plant, under a lease back arrangement from Montco to Ser Vaas. Montco needed access as of closing to start extensive modifications. Indeed, the plant was gutted internally and major structural changes carried out as well. Ser Vaas needed to schedule the shut-down of its operations, store equipment pending disposal, etc. The arrangement reached accommodated those interests. On the morning of September 3, the parent firm, by telephone, directed Lauzon to proceed with the sale. Proceeds from the sale were used to cover, in part, liabilities including discharging the mortgage, loans for equipment, taxes, accounts payable, etc.

12. As the prospect of a sale to Montco became more likely, the parent considered its options with respect to Ser Vaas. These options including closing the plant or its relocation elsewhere in Quebec, Ontario or the United States. The possibility of constructing a new facility was evaluated and rejected because of the time frame for the sale and lease arrangement. Various sites were visited or evaluated by Curtis officers and/or Lauzon. For example, Valleyfield, Quebec and Hawkesbury, Ontario were considered. The latter was visited more than once by Lauzon, sometimes accompanied by a real estate agent and consulting engineer. Hawkesbury was eventually rejected as the contractor could not guarantee construction dates. Also in Ontario, a site in Cornwall was visited by Lauzon and twice by Paul Ser Vaas (a Curtis officer). In July, Lauzon and both Paul Ser Vaas and Dr. B. Ser Vaas (chairman of Curtis) toured five possible locations in Indiana. Several sites in New York state, particularly Messina, were evaluated and visited. Criteria included a free-standing building which could accommodate the expanded operation now contemplated and location in relation to the firm's customers and suppliers. Lauzon listed the various customers and suppliers by location but the Board does not regard it as useful to reiterate that itemization herein except to note that the uncontradicted evidence was consistent with the criteria stated. In Canada, proximity to the international bridges was a factor as that would result in significant savings for custom brokerage fees. Around September 7, 1985, Dr. B. Ser Vaas visited the Cornwall location; it was tentatively agreed that, if a reasonable lease could be secured, that would be the site of the new operation.

13. Apart from the disclosure of Montco's initial interest, the negotiations and sale were kept entirely confidential notwithstanding continued meetings of the production committee and collective bargaining between the respondent and the union which culminated in the signing of a collective agreement on September 17, 1985. Lauzon candidly acknowledged the deliberate decision of the firm not to inform the union of the impending sale. He explained that the company feared that, if the employees learned of the sale, the operation would be shut down immediately, the plant occupied and equipment damaged so as to prevent the sale and/or prevent Montco from taking possession. In those circumstances, the company would not be able to hand over possession and would incur substantial liability. Lauzon pointed to several instances of similar conduct during the past few years. For example, in October 1984, despite proper notice of layoff, the employees occupied the plant in protest and locked out management. When the plant recommenced production in January, 1985, the employees refused to work until the company re-opened the collective agreement and paid compensation for the layoffs. On several occasions, the employees shut down the mill line to force the company to hire additional employees, for example. Once, when the union president (J. Fournier) was suspended pending an investigation of a fight which Fournier admitted, employees refused to work until the suspension was lifted. On another occasion, the pay cheques were delivered late because of a lack of funds; three employees carrying chains occupied the controller's office. When the company sought to discuss the absenteeism rate (in the 28% to 34% range) at the production committee, the employees boycotted meetings for several weeks until the matter was dropped.

14. It is appropriate at this point to indicate the manner in which the Cornwall site came to the company's attention. The forced re-opening of the collective agreement had occurred, in the company's view, because inventory was exhausted and the firm had to re-commence production to generate revenue. The union was fully aware of the company's inventory level because the union had earlier insisted on the replacement of a management person in shipping and receiving with a bargaining unit member. The company decided to stockpile inventory away from the plant. The inventory was entered as sales and the material stored from July 1985 onwards at the Riverside Yarn plant in Cornwall in leased space. The location was closer to an international bridge and customers, particularly those in the United States, and the lease inexpensive. Considerable additional space was available on the premises and it was this building which was considered and eventually selected for the Ser Vaas relocation.

15. On Sunday, October 27, 1985, Lauzon telephoned all employees, informed them of the plant closing and that a confirmatory letter would be delivered. The letter indicated that the closure was permanent and that the employees would not be required to report to work but would receive salary and benefits until December 27. Employees were given a telephone number to call to arrange for the collection of personal effects and tools. A separation certificate would be forwarded at the appropriate time. Three security guards prevented access to the plant for the first week. Thereafter, Montco gradually assumed responsibility for security. During the first week, one guard was stationed inside the plant. The other two, with dogs, were outside at the main gate and behind the building. The employees initially wished to enter en masse to collect belongings; the company demurred. An arrangement was agreed to permitting entry of employees individually, accompanied by a guard, company representative, union representative and union counsel. Employees asserted that some of their belongings were stolen; a law suit for damages was filed in Quebec. Apparently, the employees' personal property was left in garbage bags in the hall that week-end rather than in their lockers. During the preceding week, the employees unilaterally had decided their lockers should be steam-cleaned and instructed the employee responsible for housekeeping in the plant to perform those duties, which he did. Lockers were emptied to permit the steam-cleaning. Thus, on the weekend of October 26/27, the employees' possessions were temporarily left in the garbage bags in the hall rather than in their lockers.

16. In early October, 1985, Lauzon engaged A. Barrette as a part-time personnel consultant to initially hire some temporary employees. Barrette was to hire permanent employees and some management personnel as well and to provide related personnel advice. Barrette has expertise in the personnel field, had known Lauzon earlier in their careers and had recently started a consulting business. Construction needed to modify the building in preparation for production was performed by outside contractors. Temporary employees were hired by Barrette to clean equipment, paint, set up, etc. Maintenance employees were also hired gradually from November to March as needed on a permanent basis. Three of those hired as permanent maintenance were initially hired as temporary workers for the pre-production activities. A production start date of January 1986, was first contemplated but that was delayed to March because of construction difficulties.

17. Barrette satisfied the demand for temporary employees from the local market, working through the Canada Employment Centre. Ads were also placed in papers distributed in the Cornwall area. As temporary workers were needed, the Canada Employment Centre scheduled interviews with applicants; Barrette conducted those interviews and made the hiring decisions. The possibility of hiring the Montreal employees was not raised at the time. Barrette testified that utilization of the Montreal employees was not sensible given the irregular hours and temporary duration of the initial tasks. Further, as there was considerable unemployment in the area, the company's needs were readily satisfied locally. Barrette also stated that a firm would not normally re-locate workers for temporary positions. Wage rates for the temporary employees were set by Barrette after discussion with local Canada Employment Centre officials. The company wanted the temporary and permanent maintenance staff to possess appropriate trade skills and the ads reflected this. In Montreal, the maintenance workers had formerly worked in production and were not skilled tradesmen. In Cornwall, workers were directly hired into the maintenance department. Two such employees, H. Baker and P. Menard, were hired by the company's chief engineer on recommendation of Cornwall Warehousing management rather than through Barrette. (Cornwall Warehousing management administered the entire plant site, of which Ser Vaas leased a portion.) Between November and mid-January, approximately nineteen employees were hired as temporaries. Of those, seven were terminated in that same period and three became permanent maintenance employees. Finally, it should be noted that the temporary hires all signed employment letters explicitly confirming their temporary status although it is likely some hoped a permanent position might eventually materialize.

18. In November 1985, the Montreal employees signed standard form letters indicating a willingness to report to work in Cornwall and authorizing the union to deal with the company on their behalf. In fact, communication with the company was handled by the union. The company acknowledged the November form letter stating its view that the union certification did not extend to the Cornwall location and that individuals would be contacted in the future if their services were needed. In December 1985, the union filed a grievance under the collective agreement on behalf of the employees asserting numerous violations of the contract. At the end of November, all the Montreal employees applied for work through the Cornwall Canada Employment offices. The applications were given to Barrette who passed them on to Lauzon. Both Lauzon and Barrette testified as to their discussion at the time. Lauzon instructed Barrette to consider the Montreal employees for permanent positions in production at the appropriate time.

19. It is necessary to digress for a moment at this point. In October, the employees were notified their salary and benefits would continue until December to conform to Quebec law. In January 1986, Lauzon advised F. Dube, an official with Travail Quebec, of the plant closing. The company agreed to participate in a reclassification committee composed of representatives of the company, union, Travail Quebec, the federal government and an outside consultant as a neutral chair. The committee budget was set at $10,000: the firm contributed $4,500 (45%); the union 5%, Travail Quebec and the federal government 25% each. The committee was to facilitate the re-integration into the labour force of the Montreal employees including co-ordinating measures offered by the company and the various public, community and private services. J. Dussault, an economist familiar with the Montreal labour market, was selected as chair. Barrette was asked to be the company representative on the committee. He acted as committee treasurer. Barrette informed the other committee members of his status as consultant and company representative.

20. The committee held its initial meeting in January and its second on February 7, 1986. The next meeting was scheduled for February 24. Before that meeting, Lauzon instructed Barrette to make arrangements to interview the Montreal employees for permanent positions in Cornwall as the company was gearing up for production. About eighteen production employees would be needed for the March start up. Barrette telephoned Dube to ascertain whether that process would involve any conflict as he also was company representative on the reclassification committee. Dube responded that there was no conflict and that Barrette should simply update the committee at the next meeting. For convenience of the Montreal employees, the interviews were arranged for February 20, in Montreal, at the Travail Quebec offices. Barrette was unavailable for the interviews before that date.

21. The first interview was scheduled for 9.30 a.m. with L. Fagnant. At that time, M. Fournier and another person, Mr. Ouellette, appeared as well and challenged the company's right to conduct interviews, asserting that was a function of the reclassification committee. Barrette explained his conversation with Dube. M. Fournier and Ouellette left and Barrette commenced the interview, i.e., discussing Fagnant's work, his interest in moving to Cornwall, and such topics. However, after a few minutes, J. Fournier (union president) interrupted and aggressively stated that the company had no reason to conduct interviews and bypass the committee, that the company should only interview the workers collectively and take all the employees as a group to Cornwall. Barrette attempted to again explain his instructions and the circumstances. J. Fournier asserted the interviews were finished and he so informed all the Montreal employees. J. Fournier and Fagnant left. The receptionist informed Barrette that there were about twenty people in the hall outside and their mood seemed hostile. Barrette decided it was more prudent to wait until they left rather than risk a confrontation.

22. Barrette immediately reported the events that morning to Lauzon by telephone. Lauzon directed Barrette, since interviews with the Montreal employees had been thwarted, to advertise locally for production employees, including utilizing Canada Employment services. Temporary employees were also to be considered. Effective March 28, a number of temporary employees were transferred to permanent staff. Other workers were hired directly for production as well. Barrette's telephone call was followed by a written report which was tendered in evidence.

23. The minutes of the reclassification committee meeting of February 24, tendered in evidence by the applicant/complainant indicated the following. Barrette attended the February 24 meeting of the reclassification committee. The employee representatives protested the company's attempt to interview the Montreal workers. After considerable discussion with the federal and provincial representatives, the employee representatives agreed to ascertain whether the Montreal employees would be willing to be interviewed individually. Barrette was to contact the company to ascertain whether the firm was still interested in considering the Montreal workers. It is not disputed that Barette resigned as company representative on the committee at the end of that meeting, was replaced by another personnel consultant, C. Durand, and that the reclassification committee continued to meet. No further interviews with the Montreal employees were scheduled, however. The Montreal employees did receive standard form letters from the company dated March 6, 1986, wherein the company stated that interviews had been scheduled but prevented by the union which insisted that all former employees should be hired. The company indicated that it was not prepared to accede to that stance but would keep the individuals' names on file for future reference. To complete the chronology, the union replied on March 6 contesting Barrette's conduct at the interviews, disputing the company's assertion of union interference and reiterating its position that the company was acting illegally in not transferring the Montreal employees to Cornwall. Finally, by letter dated March 26, 1986, the employees signed a single statement confirming agreement with the contents of the union letter of March 6 and again indicating their availability for work.

24. It is useful now to summarize the operation presently carried out in Cornwall. Butyl rubber from inner tubes is recycled, crumb (rubber powder) is processed and scrap tires reclaimed. Moreover, the company now manufactures custom molded and extruded rubber goods, such as, paddock fencing, weather stripping, gasket material, rubber bricks and bats. The company also does custom refining, chopping and re-grinding for customers. New and additional equipment worth over one million dollars was acquired (e.g., a sophisticated metal detector, rubber granulater) to provide this additional capability and ensure a quality product. Some equipment as well was transferred from the Montreal plant. The design flaws in the Montreal plant have been corrected. For example, rubber belts are used to convey the product. The new process and design has eliminated the need for the addition of oils and powders and the likelihood of contamination. The "finishing" operation in Montreal is not needed in Cornwall as the equipment automatically performs this task.

ARGUMENT

25. The Board next sets out the arguments of counsel in an abbreviated form. In the Board's view, it is more expeditious in the circumstances to first summarize the submissions of the applicant/complainant followed by those of the respondent and intervener. It was agreed that the argument of the intervener would be in writing with opportunity for the applicant/complainant and the respondent to respond, also in writing. Such a response was received from counsel for the applicant/complainant; the respondent indicated it saw no need to file a rebuttal to the intervener's submissions.

26. Counsel for the applicant/complainant basically asserted that the employer had intentionally moved out of the province to escape the union and its members. That is, the move itself was tainted as was the failure to transfer the Montreal employees for the temporary and permanent positions. Counsel characterized the operation as financially healthy or that the parent firm could readily have provided needed funds, that this was a "runaway shop". Counsel acknowledged that the issue of bad faith bargaining was not before the Board but pointed to the deception of the union by management during collective bargaining negotiations and the circumstances of the plant closing and hiring of temporary and permanent employees as substantiating the "taint" allegations. Counsel also stressed that some non-bargaining unit personnel were relocated to Cornwall as further indication of the employer's mala fides vis-a-vis the union and bargaining unit employees. For the period October 27, 1985, to December 27, 1985, counsel asserted the Montreal workers retained their "employee" status under Ontario law and were unlawfully locked out by the employer. In the alternative, if the workers were not "employees" under Ontario law, it was argued that the refusal to hire for the Cornwall operation was tainted. For the period from December 28, 1985, counsel contended there was an illegal lockout or termination of the Montreal employees or, in the alternative, an improper continuing refusal to hire. Counsel reviewed the evidence, suggesting that Lauzon's explanation of the approach by Montco was ambiguous and that other sites in Quebec were not seriously considered. The projected cost savings under wages and reduction of the work force in a memo of Paul Ser Vaas dated September 10, 1985, was emphasized as further indication of an intention to escape the employer's obligations under the collective agreement. Counsel essentially dealt with the union's conduct in terminating the February interviews as understandable in the circumstances, that the employer's conduct was suspicious in scheduling interviews at all and the company should have acted through the reclassification committee and/or the union. Further, counsel stressed that the failure to re-schedule interviews after the next re-classification committee meeting was evidence of improper motive. It was argued that the current collective agreement already was applicable to the Cornwall location or, in the alternative, the collective agreement should be ordered applicable as a remedy for the various unfair labour practices alleged. Or, in the further alternative, the Board should direct that the bargaining rights of the union should extend to Cornwall even if the collective agreement itself did not. With respect to the Montreal workers, counsel asserted that there should be an order to the employer to hire, in order of seniority, the number of employees needed to replace those now working in Cornwall. Extensive compensation for lost wages, benefits, relocation expenses, etc. was sought. Given that there were forty-three bargaining unit positions in Montreal, it was asserted it was reasonable to assume all temporary positions would have been filled by those employees as at the certification date. That is, the union was entitled to automatic certification or, in the alternative, certification pursuant to section 8 of the Act in view of the alleged employer misconduct. In the final alternative, it was asserted the Board's "buildup" principles should not apply given the alleged illegal plant relocation but, if those principles were considered, a representative sample of employees would have been hired by the end of January 1986 and it could still be assumed all these positions would have been filled by the Montreal workers. With respect to the various positions asserted, counsel referred to numerous authorities in support, including Ontario, Quebec and American jurisprudence, as follows:

Westinghouse Canada Ltd., [1980] OLRB Rep. April 577; Sunnylea Foods Ltd., [1981] OLRB Rep. Nov. 1640; Humpty Dumpty Foods Ltd., [1977]OLRB Rep. July 401; Academy of Medicine, [1977] OLRB Rep. Dec. 783;York Hanover Developments Ltd., [1978] OLRB Rep. July 703;Metropolitan Parking Inc., [1979] OLRB Rep. Dec. 1193; Culverhouse Foods Inc., [1977] OLRB Rep. Jan. 16; Numilk Co. Ltd. 62 CLLC 16,237;Livingston Transportation Ltd., [1976] OLRB Rep. July 346; Harry Woods Transport Ltd., [1976] OLRB Rep. July 341; Rondar Services Ltd., [1977] OLRB Rep. Oct. 655; Cable TV Ltd., [1980] 2 Can. LRBR 381; Dylex Ltd., [1977] OLRB Rep. June 357, approved (1977), 77 CLLC ¶14,112 (Div. Ct.); Dr. Hiller's Peppermint Canada Ltd., [1979] OLRB Rep. May 375; Manor Cleaners Ltd., [1982] OLRB Rep. Dec. 1848; Law Society of Upper Canada v. Skapinker (1984), 1984 CanLII 3 (SCC), 9 D.L.R. (4th) 161 (S.C.C.); Malartic Hygrade Gold Mines Ltd. v. The Queen (1982), 1982 CanLII 2870 (QC CS), 142 D.L.R. (3d) 512 (Q.S.C.); The Board of Education for the Borough of Scarborough, [1975] OLRB Rep. Sept. 657; Spramotor Ltd., [1976] OLRB Rep. May 215; Sherman Sand and Gravel Ltd., [1978] OLRB Rep. May 459; Vaunclair Meats Limited, [1982] OLRB Rep. March 508; Royal Chesterfield Inc. [1974] T.T. 353; Canada Cold Storage Co. Ltd. [1971] T.T. 233; Droit du travail, Robert Gagnon, pp.107 - 127, 147-151; Triumph Curing Center (1978) F.(2d) 462 (U.S. Court of Appeal, Ninth Circuit); Westwood Import Co. Inc. (1980) C.C.H. N.L.R.B. 17,371; NLRB vs Marine Optical Inc. (1982) 671 F.(2d) ii; Olga Zdanok v. Glidden Company (1961) 42 LC 24,163 (U.S. Court of Appeal, 2nd Circuit); Mono gahela Steel Co. 1 982-83 C. C.H. NLRB 26,087; Allied Mills Inc. 1974- 75 C.C.H. NLRB 26,219; M & G Convoy, Inc. 1981-82 C.C.H. NLRB 30,422; Royal Norton Manufacturing Co. (1971) C.C.H. NLRB 29,628; Ex-Cell-o Corp. (1973) 60 L.A. 1094.

27. Counsel for the respondent asserted that the "Montreal" collective agreement was limited in its geographic scope, did not extend beyond Quebec and should not be so extended. That is, certification was a provincial responsibility and certificates in one Province should not be given "extra-territorial" effect. Further, it was argued Rockwell International Corporation, [1981] OLRB Rep. June 780 was distinguishable as the parties here could not be said to have intended the collective agreement to apply outside the province. Bell Canada, [1982] 3 Can. LRBR 13 was also cited in support. Counsel contended that the Board should not assess whether the decision to move from Montreal contravened the Ontario Labour Relations Act, that is, whether there was economic justification for the move as per section 77 of the Act. Rather, that was a matter for the Quebec courts. In the alternative, however, counsel stressed that the move was justified on economic grounds; the evidence concerning the lack of profitability and other financial difficulties was reviewed. Counsel also submitted that the fact that the relationship of the union and company may have been poor was not tantamount to a violation of the Act by the company in its decision to move. It was argued that the Ontario Board jurisprudence on bad faith bargaining and the duty to disclose should not be applied to bargaining in Quebec but, in the alternative, the Company had not violated the duty to bargain in good faith given the attitude of the union and employees to the company's difficulties as conveyed to the production committee. With respect to the hiring of temporary employees, counsel asserted the company was not bound to transfer persons who were still its employees in Quebec, as the individuals were not terminated until December 27, 1985. Further, the evidence of Lauzon and Barrette, the personnel consultant, with regard to hiring temporaries did not indicate any anti-union animus. Moreover, it was submitted the evidence demonstrated that the company was prepared to consider the Montreal employees for production positions but those efforts were thwarted by the union's conduct. As to certification pursuant to section 8 of the Act, counsel argued that the requisite elements of statutory violation by the employer, some level of membership support of the applicant and circumstances in which a secret ballot would not disclose the true wishes of the employees were not present in this case. Counsel added that, as of the application date, only temporary employees worked in Cornwall and, thus, it was appropriate to apply the "buildup" principles to defer the resolution of the certification application to March when production had started and, perhaps, direct a vote with both the applicant and intervener on the ballot. In response to the submissions of union counsel, it was contended that many of the propositions were speculative and not based on the evidence, for example, that Valleyfield was not seriously considered as a relocation site, that the parent company could have bailed out the respondent by infusing the needed funds, that the union could "guarantee" all positions in Cornwall would have been filled by the Montreal workers. Counsel sought to distinguish those cases cited by union counsel and referred to the following cases in support of the respondent's positions:

Transport Labour Relations Association and Wholesale Delivery Service (1972) Ltd., [1979] 1 Can. LRBR 90; Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, [1978] 1 CLRBR 493; Wholesale Delivery Service (1972) Ltd., Overland Freight Lines Ltd., [1979] 3 Can. LRBR 543; Durham Transport, [1978] OLRB Rep. Sept. 818; MacLeans Magazine, [1983] OLRB Rep. Mar. 401; Radio Shack, [1979] OLRB Rep. Mar. 248; Skyline Hotels Limited, [1980], OLRB Rep. Dec.1811; Somerville Belkin Industries Limited, [1980] OLRB Rep. May 791.

Finally, counsel for the respondent submitted that, if the collective agreement was extended to the Cornwall plant, the Montreal workers would be entitled to those jobs but, otherwise, the union must satisfy the usual requirement of demonstrating sufficient membership support at the new location.

28. Counsel for the intervener first dealt with the constitutional issue in its written submissions. Essentially, intervener's counsel concurred with the respondent's arguments on this aspect, that is, that labour relations are a matter of provincial jurisdiction and the Ontario Board does not have jurisdiction over alleged unfair labour practices occurring outside Ontario. Further, it was argued the applicant/complainant must seek relief for alleged unfair labour practices in Quebec in that province, that the Ontario Board has no jurisdiction to import into Ontario a collective agreement negotiated outside this province and then to amend that collective agreement in accordance with the principle in Westinghouse, supra, as sought by the applicant/complainant. Counsel stressed that the applicant/complainant has filed a grievance alleging violation of the collective agreement and that is the appropriate form for resolving such matters. Moreover, it was argued there were sound labour relations policy reasons for not importing into Ontario collective agreements negotiated elsewhere, including conflicts of laws problems, uncertainty in the Ontario labour relations scene for persons seeking employment at plants relocated in Ontario from elsewhere and for trade unions seeking to organize those employees and the undermining of the collective bargaining process established in Ontario should collective agreements, together with the former work force, be transferred. With respect to the alleged unfair labour practices in Ontario, counsel for the intervener submitted the evidence did not support the applicant/complainant's contention that the Montreal workers were discriminated against. Rather, it was argued that the applicant/complainant's insistence that all of the Montreal workers be hired at once and the applicant/complainant recognized as their bargaining agent, culminating in the events at the February interviews, precluded a finding by the Board that the respondent would have discriminated against the Montreal workers on the basis of their membership in the applicant/complainant. Having regard to the various remedies sought by the applicant/complainant, on the assumption that the Board concluded the respondent has breached the Act, counsel for the intervener essentially submitted the Board should not extend the Montreal collective agreement and retroactive "employment status" in Cornwall to the Montreal workers so that the applicant/complainant would automatically be certified, as this would be inequitable to the current Cornwall employees. Counsel referred to the concept of specific performance to assert the appropriate relief for the Montreal workers was an award of damages as per Textile Workers Union of America v. Darlington Manufacturing Company (1965), 58 LRRM 2657 and/or a direction that the Montreal workers be placed on a preferential hiring list for any new positions at the Cornwall plant. With respect to certification pursuant to section 8, counsel contended this relief was not appropriate in the particular circumstances of this case given the effect on the rights of innocent third parties. Further, in view of the refusal by the Montreal workers to be considered for employment unless all were hired and the applicant/complainant recognized its bargaining agent, it was argued the Board could not assess the level of support enjoyed by the applicant/complainant at the terminal date. Moreover, it was submitted that, at the terminal date, the applicant enjoyed no membership support or insufficient membership support to warrant certification pursuant to section 8. In conclusion, counsel for the intervener argued the applicant/complainant's certification application should be dismissed, the intervener's certification application proceeded with and, if the Board found any statutory breaches by the respondent, an award of damages constituted the appropriate form of relief.

29. In reply to the intervener's submissions, counsel for the applicant/complainant asserted that the applicant/complainant was relying on illegal conduct in Ontario to justify its relief. That is, either the Montreal employees were locked out of the Cornwall plant (as they remained employees until December 27, 1985) or were discriminated against in the hiring process on the basis of their membership in the applicant. Moreover, it was stressed that the company's conduct, even that in Quebec, was relevant to the question of anti-union animus and the Board's remedial discretion. Counsel also submitted the failure to disclose the move and to consult with the union constituted a violation of sections 64 and 66. On the constitutional aspect as well, counsel argued that the fact that the decision to move was implemented in Ontario was sufficient to give the Board jurisdiction and that the Board should not condone a relocation to Ontario as an "escape hatch" for employers seeking to flee from their obligations under a collective agreement in Quebec. Further, counsel submitted, as at September 17, 1985, when the collective agreement was signed, the company was essentially "an Ontario firm" notwithstanding a lack of a physical presence in the province and, thus, the collective agreement was binding in Ontario. With respect to relief, counsel stressed that the Montreal workers should not be discriminated against because of their current residence in Quebec and that reinstatement for breach of the Act was not novel. Counsel asserted the Ontario Board, in Sunnylea Foods, supra, had rejected the ratio of the Darlington case, supra, and, further, in Darlington, the plant was permanently closed and not just relocated. Counsel for the applicant/complainant agreed with the direction of a preferential hiring list but consisting of current Cornwall employees in order of seniority once all Montreal workers had been offered jobs. Finally, counsel reiterated his submissions regarding section 8 and added that, in the alternative, the Board should consider certification pursuant to section 7(3) without the requirement of representation vote for "buildup" or other reasons on the ground that the events more closely corresponded to a layoff and recall to an identical operation rather than a new plant and that there was clear support for the applicant by the Montreal workers who would have filled all positions as at the terminal date.

DECISION

30. The instant certification application/complaint is exceedingly complex both with respect to its factual context and the legal issues and, further, at least in some respects, is novel. Numerous authorities were cited in support of the various positions of the parties. The Board does not regard it as useful or appropriate to enter into an exhaustive recitation of the relevant jurisprudence or a detailed comparison of the facts in the instant case with those cited. It was not asserted that any of the authorities were "on all fours" with the circumstances of this application/complaint. Rather, counsel sought by reference to some asserted "common" elements or by analogy to apply or extend various jurisprudential principles or approaches in the cases referred to in support. The Board does refer to the case law as support for various propositions and principles as appropriate. The Board would comment with respect to the American jurisprudence cited, however, that those cases were not of assistance because of the markedly different statutory provisions and Board doctrines regarding, for example, certification, jurisdiction over labour relations, plant relocation or closure, remedial relief. The Board does not consider it useful to relate those differences in detail in the present application/complaint.

31. The Board also comments at this juncture that the complexity of the facts and legal issues renders a "compartmentalized" analytical format extremely difficult. Nonetheless, the Board intends to deal with the matters raised in the following broad categories, with cross-references as appropriate and with the question of remedy separate: status of the Montreal collective agreement and the bargaining rights of the applicant; decision to close the Montreal plant and selection of the relocation site; hiring of temporary and production workers; certification application, including section 8; intervention.

Status of the Montreal Collective Agreement and the Bargaining Rights of the Applicant.

32. Counsel for the applicant/complainant asserted, for various reasons, that the Montreal collective agreement, as a matter of law, covered the Cornwall location or, in the alternative, the bargaining rights of the union extended to that location. The Board does not agree. Certification of a trade union is a provincial matter, except for those enterprises regarded as falling within the federal sphere. In Ontario, for example, certification is granted to a bargaining agent for a defined geographic area, whether that be street address of a single plant or municipality or some other geographic configuration. The Board is not prepared to give "extra-territorial" effect to the bargaining rights of a trade union as a matter of law, that is, that once certified in one province or federally, those bargaining rights are "portable" across provincial boundaries or notwithstanding a change in the nature of the enterprise from the federal to provincial sphere (or vice versa): MacLeans Magazine, supra; Labour Relations Board of New Brunswick v. Eastern Bakeries Ltd. (1960), 1960 CanLII 79 (SCC), 26 D.L.R. (2d) 332 (S.C.C.); Saint Paul University, [1972] OLRB Rep. July 729; Bell Canada, supra; Durham Transport, supra; Wholesale Delivery Service, supra; Brotherhood of Railway Airline & Steamship Clerks, supra; Transport Labour Relations Association, supra. To grant such extra-territoriality, in the Board's view, would be contrary to provincial authority over labour relations as reflected in the various provincial labour relations statutes governing certification. (For this analysis, the Board need not deal with the case law elaborating on the limited federal sphere in labour relations). That is not to say that a union certified as bargaining agent in one province, for example, could not be granted voluntary recognition in another province and, thus, "continue" to hold bargaining rights. In the instant case, however, no such voluntary recognition was granted.

33. The Board considers that the bargaining rights of the applicant/complainant could apply to the Cornwall location only if the collective agreement itself covered that site. That question depends upon the scope clause of the Montreal collective agreement. Counsel for the applicant/complainant asserted that the scope clause should not be restricted to Montreal, that "street address" descriptions were commonplace and should not represent an intention to so delimit the collective agreement. Again, the Board disagrees. The instant case is readily distinguishable from Rockwell International, supra, where the Board found that the contents of the collective agreement and its interpretation over the years supported a conclusion that the parties intended an "open-ended" recognition clause. Here, there is no basis for importing such an intention. Assuming that, by operation of Quebec law, the collective agreement would have extended to company "relocations" elsewhere in Quebec, for the reasons already given, the collective agreement cannot bind the employer outside that province, except in the Rockwell circumstances, or, perhaps, as a matter of remedy for statutory violations (see also the cases cited in paragraph 32 above).

34. Counsel for the applicant/complainant submitted that the most recent collective agreement (signed September 17, 1985) was entered into by the company which was actually an "Ontario" firm, notwithstanding the lack of a physical presence in the province at that time, because the decision to relocate there had already been taken. That is, it was argued the firm was bound to that collective agreement in Ontario. Again, this analysis is not compelling. Both parties clearly intended the collective agreement to cover only the Montreal operation. Indeed, the union knew nothing of the relocation decision. Moreover, the union did not hold bargaining rights except in respect of the Montreal plant nor, as stated, did the company grant the union voluntary recognition in Ontario. That the respondent had decided to close the Montreal operation does not transform the legal effect of the collective agreement.

35. Thus, the Board finds that the collective agreement does not extend to the Cornwall operation and the union does not possess bargaining rights there as a matter of law.

Decision to close the Montreal Plant and Selection of Relocation Site

36. Counsel for the applicant/complainant characterized the company as a financially healthy operation which sought to escape its collective bargaining obligations, in effect, as a 'runaway shop'. Where a company closes its operation and/or relocates and the collective bargaining relationship is thereby vitiated, the Board must carefully scrutinize the reasons proferred by the firm for its decision to assess whether the motive, even in part, was tainted by anti-union animus:

Westinghouse Canada, supra; Sunnylea Foods, supra; Humpty Dumpty Foods, supra; Academy of Medicine, supra; Livingston Transport, supra; Harry Woods, supra. An employer seldom candidly acknowledges such an intention; generally an economic justification is cited. The Board must look to all the circumstances and the evidence of economic justification in reaching its determination.

37. In the Board's view, the proposition that this firm was financially healthy can only be based on a highly selective reading of the documentation. Quite simply, the firm was not profitable after several years of operation. Further, the prospects for profitability were bleak. The Board does not intend to recapitulate its factual findings to this effect as set out in paragraphs 7, 9 and 10 above, except to comment that the difficulties may be classified as relating to a flawed plant design, overextended credit line and cash flow problems in the face of several substantial expenditures which were due (e.g., back taxes, Hydro conversion, pollution equipment). Counsel for the applicant/complainant suggested the parent firm could have bailed out Ser Vaas. The evidence, however, indicates the parent faced liquidity problems of its own at the relevant point in time. Further, the union was receiving detailed information on all these difficulties through the production committee and simply rejected the company's statements. This is not a case where a company decision to move or close is coincident with a union organizing campaign and/or certification. Moreover, it was the adjacent firm, Montco, which initially approached Ser Vaas about the sale of a portion of its land for expansion and ultimately purchased the entire location. The sale clearly afforded Ser Vaas an opportunity to leave a plant where the flawed design resulted in serious problems of quality control with consequent loss of customers and to obtain a substantial cash infusion to satisfy many of its obligations. The documentary evidence tendered in support of the economic rationale for the company's decision was considerable; Lauzon was thoroughly cross-examined on the matter. In short, the Board finds the decision to sell was not tainted by anti-union motive.

38. At this point, the Board should indicate that the bona fides of the decision to sell were examined solely as relevant to a consideration of alleged taint with respect to conduct by the company within Ontario. This Board has no authority to determine whether conduct outside Ontario constituted an unfair labour practice in another jurisdiction. (This limitation, of course, does not apply where a company which operates in Ontario seeks to avoid its statutory obligations by making decisions "outside" the province in a technical sense but then implementing those decisions in its Ontario operations). In the Board's view, impugned conduct which occurs outside Ontario may well be relevant as part of a "pattern of behaviour" in evaluating activities within this Province over which the Board does have jurisdiction.

39. Likewise, it is appropriate to stress that this Board has no jurisdiction to determine whether the company bargained in bad faith by not disclosing during collective bargaining its intention to sell the plant. Lauzon openly admitted that information had not been disclosed and justified that decision by pointing to numerous examples of improper conduct by the union and employees in the past to support the company's fear that, if there was disclosure, the plant would be occupied and the sale thwarted. The Board notes this evidence was not contradicted. However, whether the company's non-disclosure constituted bad faith bargaining and/or whether any relief should be ordered in the circumstances is not before this Board. What is before this Board is whether the non-disclosure could be regarded as evincing an anti-union animus in the sense outlined in the preceding paragraph. In the Board's opinion, it does not.

40. The Board must next evaluate the relocation exercise, that is, that the decision to sell was untainted but the choice of relocation site might have demonstrated an anti-union motive. The restrictions as to the purpose of this enquiry are as noted in the preceding paragraphs.

41. Lauzon testified as to the criteria used in the selection process (see paragraph 12 above). A number of sites in Quebec, Ontario and the United States were evaluated. In Quebec, Valleyfield (and its environs, including Coteau du Lac where a Dupont factory had previously been located) was mentioned in particular. On its face, Valleyfield did not satisfy the criteria (including location in relation to customers, suppliers and an international bridge) as fully as did the Cornwall site. Counsel for the applicant/complainant submitted that Valleyfield was not seriously considered as a possible relocation venue. (It was not disputed that, if the plant did relocate in Quebec, the Montreal collective agreement would apply.) However, the evidence does not substantiate this assertion. In the Board's view, the relocation criteria were reasonable and followed in selecting Cornwall. In reaching this conclusion, the Board makes no comment on the manner in which the Cornwall plant came to the company's attention (see paragraph 14). Notwithstanding the attendance by Lauzon and some other members of management at a party held by the union in the spring of 1985, the parties' relationship could hardly be described as positive. While the Board need not pass judgment on the relationship itself and the various actions of both sides, per se, one of the serious difficulties presented by this case has been the disentangling of indicia of an "eventful" relationship from indicia of anti-union animus. The indicia are clearly related but do not necessarily lead to the same conclusion.

42. The Board also must comment on the memo of Paul Ser Vaas to Dr. B. Ser Vaas dated September 10, 1985, listing the projected savings, advantages and disadvantages of the Cornwall site. Much of the assessment of the site was unchallenged. Counsel for the applicant/complainant did closely question Lauzon about the projected savings related to reduction in work force and reduction in wages in particular. The anticipated reduction in work force has materialized because of the Cornwall plant design and equipment despite Cornwall's significantly greater production capability (see paragraphs 6, 9, and 24). Lauzon testified he had not compiled the figures in the memo but that the cost savings reflected a different labour market in the area. This account of a different labour market is partially corroborated by Barrette's evidence that the rates offered workers were generated from discussions with the Canada Employment Centre officials as to appropriate wage levels for the area and those rates were less than those in Montreal. The Board must be cautious in assessing whether anticipated savings in labour costs truly reflect a different labour market or reveal an improper desire to escape from collective bargaining obligations. However, the Board notes that, even where improper motive has been established, the jurisprudence has considered the possible penalizing effect of imposing a collective agreement negotiated in one context on operations elsewhere when considering the appropriate relief: Westinghouse, supra. In the circumstances, the Board is satisfied the respondent has adequately explained those items as unrelated to a desire to escape from the Montreal collective agreement. Indeed, in detailing the company's financial difficulties, Lauzon did not list a "rich" collective agreement as contributing to the firm's problems.

43. The Board concludes, on the evidence, that the selection of Cornwall as the relocation site was not tainted by improper motive.

Hiring of Temporary and Production Workers.

44. Paragraphs 15, 16, 17 and 18 outline the Board's findings as to the manner in which the Montreal employees learned of the closing through to the hiring of temporary employees and the letters from the Montreal workers in November as to their availability for employment in Cornwall. The Board need not comment on the events leading to the emptying of the employees' lockers and the alleged disappearance of some of those items; that question is before the Quebec courts. Nor does the Board intend to do other than note that the issue as to whether the company's conduct contravened the Montreal collective agreement is not before this Board either. The union filed a grievance in December 1985 and presumably those allegations will be decided in the appropriate forum. In this section, the Board first deals with the hiring of temporary and then production workers. It should be noted that the company referred to workers as temporary or permanent. The Board intends to clarify its terminology as appropriate.

45. Without repeating the facts in their entirety, Barrette utilized the Canada Employment Centre and ads in papers distributed locally to satisfy the company's need for temporary workers for its pre-production activities. The Board is satisfied with Barrette's explanation that it was neither sensible nor necessary to look beyond the local market in this regard. The temporary workers all signed employment letters explicitly attesting to their temporary status. That some may have hoped a permanent position might eventually materialize is not unusual. When the Montreal applications came to Barrette's attention, Lauzon was notified. His response that the applications were to be kept on file for the time being, while the company was still in its pre-production stage, does not reveal an improper motive particularly given the later instructions to Barrette to first consider the Montreal employees for production positions.

46. Lauzon testified that the company wanted skilled tradesmen in its maintenance department and, for this reason, did not consider the Montreal maintenance personnel as those Montreal workers had transferred from the production area over the years and were not suitably qualified for those jobs in the new plant. The Board is satisfied this explanation is credible and supported by the evidence, including the applications of those hired as maintenance personnel. Moreover, the Montreal "maintenance" workers were to be considered for production positions at the Cornwall plant. This aspect need not be dealt with further.

47. In mid-February, Lauzon directed Barrette to fill the production positions and to first consider the Montreal workers. That evidence was not shaken on cross-examination and is consistent with events. A natural suspicion as to motive arises when a company seeks to interview or require applications from its former employees where the plant has been relocated. Generally, it may be assumed that the company is aware of the capabilities of its former employees so that no interview is needed. However, in these circumstances, the Board's concerns in this regard are satisfied. Firstly, it must be emphasized that Lauzon directed Barrette to interview the Montreal workers before turning to other applicants to fill any remaining positions. That is, the Montreal workers were not regarded in the same manner as persons "off the street". Moreover, as noted, the interviews were scheduled for the convenience of the Montreal workers in the Montreal offices of Quebec Travail. Secondly, there had been a considerable passage of time between the closure of the Montreal plant and the scheduled start-up of production in Cornwall coupled with the fact that, notwithstanding their applications for employment, a number of the Montreal workers had telephoned Lauzon to state that they were not interested in relocating. This testimony was not challenged on cross-examination. Thirdly, the employment conditions (hours, wages, etc.) were different in Cornwall, as was the production process, to some extent (e.g. no "finishers" were needed because of technological changes). (Whether those employment conditions subsequently were altered by the Board as a matter of law or its remedial authority is a separate issue.) In this regard, as well, the Board notes that the Montreal maintenance workers were being considered for production positions only as they did not possess the trades skills needed for the maintenance department in the Cornwall plant. At this juncture, the Board is focussing on the motivation of the company in scheduling individual interviews. For all the reasons just noted, the Board concludes that the company was entitled to interview the Montreal workers for the production positions at the Cornwall location. The evidence does not support a finding that the company sought to ignore relevant hiring criteria or impose irrelevant hiring criteria or institute a hiring process which would militate against the employment of union members: cf. Metropolitan Parking Inc., [1979] OLRB Rep. Dec. 1193; Sunnylea Foods Ltd., supra; Culverhouse Foods Inc., [1977] OLRB Rep. Jan. 16; Jimmy'z II, [1977] OLRB Rep. Sept. 572. The Board finds no anti-union animus in that interview process. (The hiring process is considered in the context of the alleged violations of 64 and 67 infra at 53.)

48. Paragraph 21 details the union's conduct in thwarting the interview process notwithstanding Barrette's repeated attempts to explain the sequence of events and Dube's approval of the procedure. Barrette testified as to J. Fournier's statements of the union position that the company must interview the Montreal workers collectively and transfer the employees as a group to Cornwall. Barrette's account was not seriously challenged on cross-examination nor did J. Fournier testify to modify or contradict that evidence. In its letter of March 6, 1986, tendered in evidence, the union characterized those events quite differently. However, as the union called no evidence (except as to trade union status) to contradict Barrette's unshaken testimony, the letter has no evidentiary weight except as to an assertion of the union's position. That is, the letter has no probative value as to the proof of its contents. Barrette immediately informed Lauzon of the events and was then instructed by Lauzon to fill the needed positions by advertising locally for workers utilizing the services of the Canada Employment Centre and considering the temporary workers.

49. To this point, the Board does not regard the company's conduct as tainted by improper motive. Nonetheless, the Board must still consider the effect of the February 24 meeting of the reclassification committee. That is, a company is not entitled to "seize upon" an excuse (in this case, the union's conduct in thwarting the interviews) to cloak a tainted decision not to hire union members. As noted in paragraph 23, according to the minutes, Barrette was to ascertain whether the company was still interested in considering the Montreal workers and the employee representatives to ascertain whether the Montreal employees would be willing to be interviewed individually. This aspect is very troubling because the document was tendered in evidence by the applicant/complainant and was clearly within the applicant/complainant's knowledge given the composition of the committee but was not particularized initially or put to either Lauzon or Barrette. Barrette testified he followed Lauzon's instructions to fill the production positions locally, including the temporary workers where appropriate, and that, to his knowledge, no further interviews were held. Lauzon testified that the company concluded the union had thwarted the interview process and was insisting on the relocation of all Montreal employees. This explanation was set out in the company letter of March 6, 1986, sent to the Montreal workers. This explanation is not inconsistent with a further assessment of the company's position after a follow-up by Barrette as a result of the February 24 reclassification committee meeting. Lauzon was not asked whether the company reconsidered the matter and the grounds for not rescheduling interviews. Indeed, the Board has no evidence as to whether Barrette did inform Lauzon of the February 24 meeting or whether the Montreal employees agreed to individual interviews. Moreover, in the union s response (also dated March 6) to the company's March 6 letters, the union continued to assert that the company was in breach of the Montreal collective agreement in not using the Montreal employees in the Cornwall plant but did not affirm that those employees were willing to be interviewed individually as per the February 24 meeting. (The letter also sought to justify the union's conduct at the interviews.) The union led no evidence with respect to the February 24 meeting; the matter was not put to the company's witesses. Even assuming the minutes may be taken as proved as to their contents, it is not a reasonable inference from that document that the company refused to reschedule interviews because of anti-union animus. That is, in the circumstances, the Board regards the company's conduct as reasonable, particularly given the union's continued insistence on hiring in accordance with the Montreal collective agreement. The Board is not prepared to conclude solely from the fact that interviews were not re-scheduled that the company violated sections 66 or 70 of the Act.

50. In considering the sequence of events, the Board has been mindful that the company bears the onus, under section 89(5) of the Act, of demonstrating that its decisions were entirely free from anti-union animus or improper motive. The Board need not cite the myriad number of cases to that effect but simply refers to Sack and Mitchell, Ontario Labour Relations Board Law and Practice, chapter 8. Counsel for the applicant/complainant in argument adverted to the "mobility rights" in section 6 of the Charter of Rights and Freedoms. It is sufficient on this aspect for the Board to note its conclusion that the Montreal workers were not discriminated against in respect of their applications for employment in Cornwall. Barrette's testimony that the company could satisfy the firm's need for temporary workers locally and that that was a sensible approach to filling the temporary positions goes to the issue of anti-union animus, not to discrimination contrary to section 6 of the Charter. The Montreal workers were considered for production positions.

51. In summary, the Board finds that the company did not contravene sections 66 or 70 in hiring its temporary, maintenance or production employees for the Cornwall site. In reaching this conclusion, the Board has not ignored the fact that, apart from Lauzon, two non-bargaining unit employees (a chemist who then left the firm in February 1986 and a secretary) did relocate. The company's bona fide attempt to interview the Montreal workers for production positions and the union's conduct in preventing those interviews, however, negate any inference that the company was discriminating between Montreal personnel on the basis of their union membership. It should be added that the Board does not accept the applicant/complainant's contention that the hiring process was intended to chill organizing attempts at the Cornwall plant or to otherwise coerce or intimidate its "local" hires from exercising their freedom to join a trade union, to participate in its lawful activities or exercise any other rights under the Act. There is no evidence to ground such an assertion.

52. The Board intends to deal briefly with the alleged illegal "lock-out" of the Montreal employees. To meet the statutory definition of a lock-out in section 1(1)(k) of the Act, two elements must be present, namely, employer action which has the effect of employees not working (e.g., closure, suspension of work, refusal to continue to employ) and a motive for the action, i.e., to compel or induce employees to refrain from exercising statutory rights or to agree to different employment conditions or union rights: Humpty Dumpty Foods, supra; Livingston Transportation, supra; Harry Woods Transport, supra; Rondar Services, supra. The Board finding that anti-union animus was absent in the decision to close, selection of relocation site, the consideration of the Montreal workers for production positions in Cornwall and the hiring of the Cornwall work force is also applicable to the alleged contravention of sections 72 and 75 (threatening an unlawful lockout). In the circumstances the Board need not elaborate on the distinction in the jurisprudence between "revocable" and "irrevocable" employer decisions relative to an analysis of motive. The Board is satisfied with the propriety of the company's motivation regarding the decisions relevant to the alleged contravention of sections 72 and 75. Accordingly, the Board finds that the company has not violated those sections of the Act.

53. The Board next deals specifically with the alleged violations of sections 64 and 67. Again, the absence of improper motive as found in the preceding paragraphs are relevant to this issue. The decision to sell and relocate in Cornwall was not tainted by anti-union animus. This was not a "runaway" shop to escape from the union and the collective agreement. The company continued to deal with the union in respect of the Montreal employees in the context of the Montreal operation. The company participated in the reclassification committee to reintegrate the Montreal workers into the labour market. It is accurate to state that the Montreal workers designated the union as their representative in the letters indicating their availability for work in Cornwall. However, in the Board's view, this designation does not clothe the union with the representational rights protected by sections 64 and 67 of the Act in the circumstances of this case. That is, the union held bargaining rights under Quebec law and the decision to sell and relocate in Cornwall was untainted and the hiring process of the Cornwall work force was untainted. There was no company interference in the administration of the union or its right to organize the workforce in Cornwall. There are no allegations that the company has sought to persuade the Cornwall employees not to support a union or to support the intervener rather than the applicant. The Board has found the company's conduct was not intended (and did not) chill the atmosphere in Cornwall to thwart an organizing campaign. Lauzon candidly testified that, perhaps apart from the initial stages, he did not expect the company would remain "union free", to use his words. There was no interference with the bargaining rights actually held by the union, that is, in respect of the Montreal operation.

54. In the Board's opinion, the company was under no obligation to grant voluntary recognition to the union in respect of the Cornwall location. Unless, by operation of law, the Montreal collective agreement covered the Cornwall operation (and the Board has found that it did not) or voluntary recognition was granted, the union is required to be certified in accordance with the Act in order to acquire bargaining rights. The Board finds that the company has not sought to interfere with the proper acquisition of such rights in Ontario. A poor collective bargaining relationship is relevant to consideration of improper motive for company conduct. But such evidence, including evidence of past union impropriety, is not conclusive. The Board must determine whether the company could be regarded as having intended to interfere with those union rights protected by the Act or whether there was direct and persuasive evidence of a legitimate business purpose rebutting any inference of motive where the conduct on its face had a critical impact on trade union activity: Silverwood Dairies Ltd., [1981] OLRB Rep. Mar. 321; Skyline Hotels, supra, international Wallcoverings, [1983] OLRB Rep. Aug. 1316. On balance and in all the circumstances, the Board finds that the respondent has not violated sections 64 and 67 of the Act.

55. As the Board has not found the company has contravened the Act, the Board need not deal with the question of the appropriate relief.

Certification Application

56. This section deals with the certification application by the applicant/complainant filed November 18, 1985; the intervention of the R.W.D.S.U. is considered infra. The applicant/complainant and respondent were in agreement as to the appropriate bargaining unit, namely, all employees of the respondent in the City of Cornwall, Ontario, save and except foremen, persons above the rank of foreman, office and clerical staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period. The Board notes that the agreement of the applicant to the "part-time/student" exclusion was conditional upon a record check confirming the presence of part-time employees, as so regarded by the Board, as at the application date. In the circumstances, the Board need not deal further with this matter.

57. Whether the Board looks to the membership support for the applicant/complainant as at the terminal date or defers consideration of that support to a date when a representative work force would be present, that is, at the production stage in the spring of 1986 (see Woodbridge Foam Corporation, [1985] OLRB Rep. Jan. 139; Marley Roof Tiles Limited, [1984] OLRB Rep. March 511), the result is the same. Given the Board's finding that the process of hiring temporary, maintenance and production workers was not contrary to the Act, the applicant/complainant has not demonstrated sufficient membership support for certification or entitlement to a representation vote. Indeed, the applicant/complainant's certification application is predicated on a finding that, apart from the alleged improper employer conduct, there would have been sufficient support either for outright certification pursuant to section 7(2) (that is, greater than 55% membership support) or pursuant to section 8 of the Act. As the Board has not upheld the alleged violations, the applicant is not entitled to certification pursuant to section 7(2) or 8 and, therefore, the application must be dismissed. The Board adds that section 7(3) does not afford an alternative route to certification but must be read in the context of sections 7(1) and (2). Having failed to establish the requisite membership support in respect of employees in the bargaining unit, either under s.7(2) or 8, the applicant/complainant is not entitled to certification under the Act.

Intervention

58. As of April 11, 1986, the intervener RWDSU filed an intervention seeking certification for the Cornwall employees. Pursuant to section 103(3)(b), the Board at the time deferred consideration of that application pending a final decision on the original application. That original application has been dismissed by the Board, for the reasons already given. In its intervention, the RWDSU sought certification in respect of the following bargaining unit: all employees of the respondent in the City of Cornwall, Ontario, save and except foremen, persons above the rank of foreman, office and clerical staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period. To date, the certification application has not been posted or otherwise considered. Accordingly, the Board hereby directs the Registrar to process the certification application of the RWDSU in the usual manner.

Summary

59. In conclusion, for the foregoing reasons, the Board

(i) dismisses the alleged violations of section 89 of the Act;

(ii) finds the applicant/complainant does not hold bargaining rights in respect of the respondent's Cornwall location and the "Montreal" collective agreement does not cover that location;

(iii) dismisses the applicant/complainant's certification application both with respect to sections 7(2) and 8 of the Act;

(iv) directs the Registrar to proceed in the usual manner with the processing of the certification application by the intervener RWDSU.