Public Service Alliance of Canada v. Forintek Canada Corp. and Jacques Carette, 1986 CanLII 1578

[1986] OLRB Rep. April 453

0721-85-U Public Service Alliance of Canada, Complainant, v. Forintek Canada Corp. and Jacques Carette, Respondents

BEFORE: Owen V Gray, Vice-Chairman, and Board Members F. W Murray and S. O 'Flynn.

APPEARANCES: Denis J. Power, Aaron Rubinoff, Terry Kearney, Terry Ranger, Raymond Dubois, Peter Garrahan, Mary Mes-Hartree and Charlene Hogan for the complainant; Patricia J. Wilson, M. L. Phelan, Ann Hayward, K. A. French and Jacques Carette for the respondents.

DECISION OF THE BOARD; April 30, 1986

1. In January 1985, after the complainant trade union ("PSAC") had given the respondent Forintek Canada Corp. ("Forintek") notice of desire to bargain for the renewal of their collective agreement, which was due to expire March 31, 1985, Forintek sought PSAC's consent to the implementation of "salary adjustments" for employees in the bargaining unit it represented. It said its decision to do so was the result of a salary survey which had been conducted by an outside consultant at Forintek's request. While pressing its request for consent, Forintek refused to give PSAC any detailed information with respect to the specific adjustments it proposed to make to the salaries of employees in the bargaining unit. It refused to provide PSAC with a copy of the survey. It refused to disclose or discuss the specific proposed adjustments or the salary survey in collective bargaining. Indeed, it even refused PSAC' s request for particulars of the salaries then being paid to employees in the bargaining unit. PSAC said it would not consent to unspecified salary adjustments without further information. In direct communications, Forintek advised employees in the bargaining unit that PSAC's failure to consent stood in the way of their salary adjustments and that PSAC had given no reason for its refusal to consent. Then, on June 12, 1985, and without having received PSAC 's consent, Forintek unilaterally increased the salaries of almost all of the employees in the bargaining unit. PSAC complains that Forintek's actions violated sections 15, 64, 66, 67 and 79 of the Labour Relations Act.

2. Forintek is a body corporate engaged in research and development in the wood products industry at laboratories in Vancouver, British Columbia, and Ottawa, Ontario. Those laboratories were operated by the Federal Government's Department of Fisheries and the Environment prior to their "privitization" in 1979. On August 17, 1979, PSAC was certified by this Board as exclusive bargaining agent for a unit of employees at Forintek's Ottawa laboratories. PSAC and Forintek were thereafter parties to a series of collective agreements of which the most recent covered the period April 1, 1984 to March 31, 1985. While employees in the bargaining unit form a "local" of PSAC ("the PSAC local") with its own executive, it is PSAC, and not the local, which holds and exercises bargaining rights with respect to this bargaining unit. In each round of collective bargaining, PSAC has been represented by its own staff representatives, assisted by a bargaining committee of bargaining unit employees. Until mid 1982, Forintek was represented in collective bargaining by a lawyer with expertise in collective bargaining. When Tony French became Forintek's President, he discharged that lawyer and designated Jacques Carette, a member of Forintek's management, as spokesman for Forintek in collective bargaining in that and subsequent years.

3. French testified at length about the various matters with which he had had to deal as Forintek went through the process of being weaned from assured government financing. One of the concomitants of such financing had been adherence to federal government wage restraint requirements. By the spring of 1984, French was concerned that the salaries of Forintek's scientific and technical personnel had fallen below "market" levels. In June 1984 he commissioned the firm of Thorn, Stevenson & Kellogg ("TSK") to conduct a salary survey. They did so, and concluded that salaries in all scientific and technical job categories were below market to varying degrees. They estimated the cost of bringing salaries up to market average at $500,000 per annum, which represented about 10% of Forintek's payroll. The salary structure envisaged by that proposal was different from the one then employed by Forintek. The actual application of it to individual employees required that each employee be assigned a pay grid and performance rating. In October 1984, French and Carette met with managers of the various Forintek departments to obtain their performance rating of the various employees in their departments. This information was then given to TSK and TSK was asked to show how the sum of $200,000 per annum might be allocated to salary increases intended to partially implement TSK's market average recommendation. Armed with TSK's detailed answer to that question, French made a presentation to Forintek's Board of Directors on December 6, 1984. He asked that management be authorized to implement a salary adjustment equivalent to $200,000 per annum, effective January 1, 1985. According to French, Forintek's Board was reluctant to authorize any increase. In the end, it resolved "that management be authorized to implement a salary adjustment equivalent to $200,000 annual [sic] on January 1, 1985, provided the funds are distributed based on performance at management's discretion."

4. Meetings of managers had already been scheduled for the second week in January

5. Carette and French decided to use that occasion to acquaint department managers with the Directors' decision and have them make allocations of the funds earmarked for salary adjustments. French and Carette chose not to give the managers copies of the TSK report. Instead, they gave the managers generalized highlights, but not the specific figures which had been generated by the report. Managers were told that at the end of the week each would be given an amount of money for his or her department which he or she would be expected to distribute "based on performance." Carette and French calculated the amount to be allocated to each department by adding up the individual salary adjustments TSK had projected for each of the employees in that department when it had been asked to allocate $200,000 to the partial implementation of its market average recommendation. The managers, however, were not told of the employee by employee calculations contained in the TSK report.

6. French had hoped to complete the survey process and implement salary adjustments before the commencement of collective bargaining for the renewal of Forintek's collective agreement with PSAC. He regarded these salary adjustments as matters which should not be the subject of any negotiation with the union, and now testifies that in January 1985 he thought Forintek had the right under its collective agreement to implement any such salary adjustment without the consent of the union. He thought the planned meeting with department managers in January could be completed before the union would turn its attention to collective bargaining. On January 2, 1985, however, PSAC delivered to Forintek a notice to bargain designating its staff representative, Terry Kearney, as the person to be contacted in order to make arrangements for negotiations. Kearney had acted as spokesperson for PSAC in previous negotiations with Forintek.

7. January 18, 1985 was the Friday of the week in which Forintek's department managers met and were given instructions concerning their role in the allocation of the salary adjustments authorized by Forintek's Board of Directors. Carette was anxious to have these adjustments announced at both the Western and the Eastern laboratories on the following Monday. He arranged a luncheon meeting that Friday with Peter Garrahan and Charlene Hogan. Garrahan and Hogan are employed by Forintek in the Ottawa laboratories. They were then President and Vice-President, respectively, of the PSAC local. They were both aware TSK had conducted a salary survey, since both had been interviewed by TSK personnel during the summer of 1984 in connection with that survey. Carette told Garrahan and Hogan that the then completed salary survey showed that a certain number of Forintek employees were being underpaid by two to twenty percent relative to market, Forintek wanted to make salary adjustments to correct inequities revealed by the survey, and its Board of Directors had authorized that $200,000 be added to the salary budget as a first step in that process. This amount would be split between the Eastern and Western laboratories and further divided among the various departments. The division as between departments would be made by senior management; the manager of each department would have the authority to distribute the allocated increase among individual employees on the basis of "proficiency." Carette said that Ontario labour relations law prevented Forintek from making these adjustments for employees in the bargaining unit without the union's consent after the union had given notice to bargain. He said the purpose of his meeting with them was to obtain the necessary consent. Although they asked, he declined to say what portion of the $200,000 figure was allocated to the Eastern laboratories. He said the union would not be given any further information with respect to the survey or the proposed adjustments and that the company was not prepared to make the adjustments the subject of collective bargaining. He said "proficiency", the basis on which the allocations were to be made by individual department managers, was not to be confused with "merit", one of the factors addressed by the corporation's existing salary administration policy and by the existing collective agreement between Forintek and PSAC. Garrahan and Hogan did not purport to consent on PSAC's behalf at that point. They had the impression Carette expected them to speak to employees in the bargaining unit. Garrahan told Carette that he had a work assignment which would take him out of the city for the following two weeks, so the issue would not be dealt with until he returned.

8. On Monday, January 21, 1985, Carette delivered the following memorandum to "All

Managers":

RE: Salary Adjustments Announcement

At your 1:00 pm meeting you may want to mention about the salary adjustments which will take place today in Vancouver.

Permission has been requested from PSAC for immediate implementation in Ottawa. No response, however, has yet been received. You are encouraged, however, to make the following statement:

"As a result of the TSK study, Forintek has decided to make a salary adjustment effective January 1, 1985. Permission has been asked of P.SAC to inform the Eastern Laboratory staff of their individual adjustments based on merit. As of today, permission has still not been given and accordingly no adjustment can take place. We hope to receive PSAC agreement before the end of the budget year since there is no guarantee that the funds will still be available after April 1."

Any change will be communicated to you as soon as it occurs.

[emphasis added]

Charlene Hogan testified that her manager met that day with employees in the department in which she works. He told the employees about the proposed adjustments, invited their comments on how he might distribute the amount allocated to his department, and read to them the statement which appears in quotation marks in Carette's memo.

8. A meeting of bargaining unit employees had been scheduled by the local's executive for February 5, 1985, to discuss the proposals they wished PSAC to make on their behalf in the negotiations with Forintek for the 1985-86 collective agreement. Forintek's desire to make salary adjustments became a matter of discussion at that meeting. Garrahan spoke against consenting to the adjustments when the amounts to be distributed and the basis of the distribution had not been disclosed. He argued, instead, that the matter of salary adjustments ought to be dealt with in collective bargaining. Some employees agreed with Garrahan. Others regarded the employer's proposal as a gift, and questioned why there should be resistance to it. A motion that "discussion on salary adjustment be referred to negotiations as the first item of business and that this item be resolved before proceeding with any other business" was passed by a narrow margin in a secret ballot vote. The following day, a number of members petitioned for reconsideration of that motion, citing the deadline of March 31, 1985 imposed by management for acceptance of these salary adjustments, a rumour that salary adjustments were non-negotiable items, and concern that, on the wording of the resolution, no further negotiation for 1985 contract would take place if negotiation of salary adjustments was unsuccessful. The petitioned-for meeting was held February 7, 1985. A vote conducted otherwise than by secret ballot reversed the earlier motion by a narrow margin. The discussion which led to this result was so heated that Peter Garrahan and one other member of the executive immediately resigned their offices in the local and two or three other employees purported to resign from membership. Charlene Hogan, who personally favoured consenting to the unspecified increases, became acting President.

9. On February 8th, Carette invited Hogan out to lunch. He told her that he was aware of the result of the previous day's meeting and of the resignation of Garrahan as President of the local. He said that she could either advise him to make the salary adjustments or she could advise PSAC of the decision and ask them to implement the necessary paper work. They discussed salary adjustments again. Hogan expressed concern about the fact that managers would be making salary adjustment decisions without having before them the information contained in the salary survey. Carette replied that the process was part of a training program for managers. Hogan told Carette that the salary adjustment issue had harmed employee morale by dividing employees into two factions. It is Hogan's evidence, which we accept where it differs from that of Carette, that Carette told her he was hoping something like that would happen "to clear the air", as there was a lot of underlying tension and he felt it was best for this come to the surface in what he described as a sort of catharsis. Hogan expressed doubts about her authority to consent to the proposed salary adjustments, and made it clear she preferred to let PSAC deal with the matter.

10. At a meeting on February 11th, Hogan advised PSAC '5 Terry Kearney of the salary adjustment proposal and the meetings and resolutions it had engendered. His reaction was that to consent to the adjustments without further information and without making them the subject of collective bargaining would cripple the union's bargaining power, and that so long as PSAC continued as bargaining agent for the employees in the bargaining unit, PSAC' s position would be that the salary adjustments should be discussed in negotiations and that its consent to those adjustments would not be given without further information.

11. On February 14th, Carette again pressed Hogan about consent to the salary adjustments. Hogan made it clear that these would have to be discussed with Kearney. A formal collective bargaining meeting was scheduled for the afternoon of February 22nd. Carette suggested that Hogan and Kearney meet with him to discuss salary adjustments prior to that meeting. Hogan suggested that bargaining unit people ought to be present as well, but Carette told her she had two options: he would meet with Hogan and bargaining unit employees or he would meet with Hogan and Kearney. She selected the latter option, and Hogan, Kearney and Carette met for lunch on February 22nd.

12. At the luncheon meeting of February 22nd, Carette told Kearney that Forintek wanted to ''implement salary adjustments based on the results of the salary surveys~ , that the company did not have enough money to match market salaries immediately, but that the proposed adjustments would be a "downpayment" toward achieving that result. Kearney made repeated requests for further information about the salary survey and the proposed salary adjustments; Carette refused to give any further details. When Carette brought up the matter of the February 7th vote, Kearney made it clear he did not feel bound by that vote and that Forintek would have to deal with him as PSAC's representative on this issue. Kearney asserted that discussion of the salary adjustments ought to be the first step in the negotiations for the renewal of the collective agreement. Carette responded that salary adjustments would not be any part of those negotiations, and expressed indifference when Kearney told him that the approach he was taking violated the Labour Relations Act. The formal negotiating session that afternoon was brief. As spokesperson for PSAC, Kearney presented its proposals. Carette gave an initial reaction and indicated that the company proposals would be forthcoming at a later date. Either then or at some subsequent point, a further bargaining meeting was scheduled for March 9th.

13. On March 8, 1985, Forintek's president, Tony French, called Charlene Hogan to his office. He told her that while it was perhaps not diplomatic or safe to have her there, he wanted to clear the air and establish some communication. He invited her observations about the salary adjustment issue. She explained that discussions on that issue had resulted in a split of bargaining unit employees into two factions of roughly equal numbers. French expressed surprise at this, saying it was his impression that those opposed constituted only a "small vocal minority." They discussed the survey. French was adamant that he wanted the salary adjustments made, saying he felt his employees must be treated fairly. He remarked that he was all for a union as long as employees were treated fairly. Hogan testified that French told her if she ever needed any help, she should go to Jacques Carette, and that the company's lawyers would be able to handle her problems. Hogan was not sure what exactly French meant: whether the help offered was with respect to by-passing Kearney to obtain the implementation of the salary adjustments or help with Kearney himself or help with respect to other people in the bargaining unit. French's version of this conversation is that his reference to help stemmed from his understanding that Hogan was being harassed by other bargaining unit members because of her personal support for the implementation of the salary adjustments. He said he was only attempting to assure her that she did not have to take abuse, that she could speak to Carette if she did not know what to do about the abuse, that she ought to get legal advice and that if she did not know who to contact for legal advice, she could speak to the company's lawyers who would refer her to someone suitable.

14. Problems with airline schedules prevented Kearney's attending the scheduled March 9th meeting at the appointed time. Company officials were unwilling to meet late that day or the following day, and Kearney was unavailable for the balance of the month. Some bargaining unit employees then went to PSAC and persuaded PSAC officials that a letter under the signature of Pierre Sampson, then PSAC's President, ought to be written to Jean Person, the Chairman of Forintek's Board of Directors, requesting that the salary survey results be made available to the union and that the distribution of catch-up pay be made the subject of full negotiation with the union. Such a letter was sent on March 12th. Forintek's reply came in the form of the following telegram dated March 14, 1985 from Mr. French:

Re. Your letter March 12, 1985 to Jean Perron, Chairman, Forintek Canada Corp.

-I am replying on behalf of Mr. Perron to advise you that the relationship between the Board and Management of Forintek is as follows:

1. The Board approved an annual budget for 1984-85 and approved SA a salary administration policy in 1983, and confirmed the market average policy December 1984.

2. Management has the mandate to implement salary policy within the approved budget.

3. Mr. Carette has the mandate to represent the company on all matters with the bargaining unit.

Salary policy was announced to staff immediately following our corporate management planning meeting early January. Staff were advised our salary structure is below market average, some job categories being worse than others. A corrective step towards our policy of market average salaries was offered to staff effective January 1, 1985, provided staff accept prior to March 31, 1985. This corrective step is within approved budget for 1984-85.

I very much regret the delay in resolving the issue your representative has created over the implementation of salary policy. The absence or vacation of your representative has created entirely unnecessary delays for meetings with Mr. Carette to resolve problems. Our schedules have been well-known, and at this time of year cannot be changed since they are critical to our revenue development for the coming year.

You could help the process by instructing your representative to make himself available to meet with Mr. Carette at the earliest opportunity. For your information Mr. Carette is available every day during the week of March 25 in Ottawa. The present situation is most unsatisfactory and is unfairly penalizing a group of our employees.

This telegram bears a notation that it is copied to "PSAC Local President" and "PSAC Local Bargaining Unit". A copy of it was posted on the bulletin board at Forintek's Ottawa laboratories.

15. A meeting was arranged for March 26, 1985, at which another PSAC staff representative, Bob Yaremko, would fill in for Terry Kearney. On March 25th Carette approached Hogan again, this time to ask about a rumour that she was resigning as president of the local, which she denied, and to ask whether it was true that Yaremko was replacing Kearney, to which her answer was that he was doing so only for the one meeting.

16. At the meeting of March 26, 1985, PSAC representatives again questioned Carette about the proposed salary adjustments. They asked why there was a March 31st deadline. Carette told them that March 31st was the company's fiscal year end, that the salary adjustment was part of the 1984-85 budget, that the company's accounting was done on a cost, not accrual, basis and that the matter therefore had to be concluded within the fiscal year. Carette again refused to give the union a copy of the salary survey. The union asked how much of the $200,000 would be distributed to employees in the bargaining unit and was given a figure of $122,796.00 per year. Carette refused to give particulars of the proposed distribution, saying only that some employees would get more than others and that some might get nothing. The Union's representatives asked Carette to tell them what salary was being paid to each of the employees in the bargaining unit and what adjustment Forintek proposed to make to each of those salaries. Carette refused, observing that the company had been bargaining with the union for several years without providing detailed salary information. He said the company's concern about providing such information sprang from a survey conducted at some time in the past, in which, he claimed, most employees had asked the company not to divulge salary information. He said the company would release that information only on upon receiving the employees' written requests that it do so. The meeting ended in a stalemate. While the union, through Yaremko, indicated that it would consider its position further, we are satisfied from the evidence that no one on behalf of the union made any suggestion that Carette could expect to hear from them by March 31st, the deadline by which Carette still insisted the union's consent to salary adjustments had to be received.

17. On Friday, March 28th, the secretary in Charlene Hogan's department announced to those present that she and other secretaries had been told to advise their groups that salary adjustment cheques had come in and would be on Jacques Carette's desk until Sunday night waiting for PSAC approval. Later that afternoon, a copy of the following telegram to PSAC was posted on the notice board at Forintek, where it could be and was seen by bargaining unit employees:

Mr R Yaremko

Following our last meeting of March 26, 1985, PSAC were suppose [sic] to inform Forintek before the end of this week of the position taken by the union regarding the acceptance of the salary adjustments.

In spite of my efforts to reach you and the Local president by phone, we still do not have an answer.

In order to provide all our staff with fair treatment and in view of the strong financial implications if the payments are not made before March 31, you can still reach me at 824-7731 during the weekend to settle this matter.

Jacques Carette

Director, Marketing + Admin

Forintek Ott

cc Notice Board at Forintek PSAC Ott

As we have already observed, the evidence does not support the statement contained in the first paragraph of this telegram. The "efforts" referred to in the second paragraph in each case consisted of a single telephone call placed that afternoon with the result, in the case of Mr. Yaremko, that Carette was told Yareinko was unavailable. In the ordinary course, this telegram did not come to the attention of Yaremko until the following Monday, April 1, 1985.

18. Following the March 31st deadline Forintek had identified as critical to the implementation of salary adjustments, there was no further discussion of or communication about salary adjustments until the next scheduled collective bargaining meeting on April 22, 1985. The union witnesses who attended that meeting say Carette began the meeting by announcing that the salary adjustment monies were still available because the company's books for the fiscal year ended March 31st had not yet been closed. He placed on the table a large envelope, which he said contained cheques representing salary adjustments for bargaining unit employees for the period January 1 to March 31, 1985. He said these could still be distributed if the union gave its consent by the following day. One of the union representatives, Terry Ranger, again asked for the individual salary information, and advised Carette that the union had collected written authorizations from 70 of the 77 employees in the bargaining unit. Carette replied that he would deal with the matter only upon receiving those written authorizations. Terry Kearney, the union's chief spokesman, took the position that Carette's presentation of the cheques in this manner was deliberately intimidating and rendered meaningful collective bargaining impossible. He announced that the union would apply for the assistance of a conciliation officer, and the meeting ended.

19. Forintek's President, Tony French, testified that he had discussed bargaining strategy with Carette before the April 22nd meeting and they had specifically agreed that Carette was to take the cheques to the meeting and put them on the table in order to make it very clear that money still existed for the salary adjustments management wanted to make. It was Carette's evidence, however, that he had no plan to put the cheques on the table when he took the envelope of cheques with him to the April 22nd meeting, and only did so as a way of answering a question by Kearney about whether there was money available for salary adjustments. We find French's evidence on this point more credible than Carette's. Carette's loss of credibility on this point has played a part in our rejection of his evidence in other areas where it conflicted with that of other witnesses.

20. On April 23, 1985, French caused copies of the following memorandum to be delivered by hand to bargaining unit employees:

RE: Union Negotiations

At a meeting on April 22, 1984 [sic] with the Public Service Alliance of Canada, your bargaining agent, the corporation was informed that it was the intention of the bargaining agent to petition the Minister of Labor to appoint a Conciliation Officer.

I sincerely regret that it was not possible to arrive at an early and amicable application of our salary administration policy. In my view it is important that all staff affected by this issue clearly understand the facts.

In April 1983. the Board of Directors adopted a Salary Administration Policy to ensure that Forintek's salary administration program offers equitable and competitive salary rates for all employees. This Policy is very well-known to all employees.

Last December, the Board strengthened the Policy by stipulating that salaries at Forintek shall be maintained at least at market average for similar research laboratories in industry and government.

Various compensation surveys that we have made indicate that our actual salaries are somewhat below market. In recognition of this fact a special budget was approved by the Board last December to implement a catch up program at the earliest opportunity within our financial capacity.

Before we could inform you of your adjusted salary effective January 1st, PSAC served notice to bargain. The law in Ontario prohibits the employer from making any change to compensation while the bargaining process is underway. We were therefore required by law to obtain permission from PSAC to implement the January 1st salary adjustments. We have made attempts at various meetings to secure this permission; to date our requests have been repeatedly refused.

A last attempt was made yesterday to obtain permission to release the cheques for the period January 1 to March 31. Acceptance would have automatically implemented the adjustment on a permanent basis. This permission was again refused and no reasons were given.

We are an organization that receives a majority of its revenues from governments and contracts. Once the year end accounts are closed, it becomes impossible to capture revenues resulting from cost increases in a prior year. In a final attempt to provide our staff with the salary catch up, we had arranged with our clients and auditors to delay the year-end cut off date. This made possible the cheque offer of yesterday.

You are no doubt aware that we have already implemented our salary policy outside the bargaining unit. Adjustments have been made effective January 1st and April 1st.

I am profoundly disturbed by PSAC response given yesterday to proceed directly to conciliation, without any consideration of the corporation's response to the negotiation requests. This will cause a lengthy delay in the application of our compensation program.

I have instructed Jacques Carette and Jim Dangerfield to be available to participate in meeting's [sic] requested by PSAC to resolve this issue. We want to do everything we can to resolve this most unsatisfactory situation as quickly as possible.

[emphasis original]

21. There were no further meetings of any kind between Forintek and PSAC until June 10, 1985, when union and management representatives met at the request and under the auspices of a Conciliation Officer who had been appointed on the application of the union. Neither party made any fresh proposal or representation directly to the other during the course of this meeting, either before or after their separate meetings with the Conciliation Officer, nor was there any communication to PSAC that the salary adjustments were still available. At the conclusion of that meeting, therefore, collective bargaining negotiations and discussions of the proposed salary adjustments were in the same state as they had been at the conclusion of the April meeting. In the meantime, Ms. Hogan had resigned as acting President of the local and Raymond Dubois had been elected President.

22. On the morning of June 11, 1985, posters were put on the bulletin boards at Forintek's Ottawa labs, giving employees notice of a union meeting to be held at noon the following day, June 12th, to discuss what had taken place at the conciliation meeting on June 10th. In the afternoon of June 11th, Carette asked Raymond Dubois to meet with him. By this time, members of the local's executive had been cautioned by PSAC that they should not meet on a one-to-one basis with members of Forintek's management, so other employee members of the bargaining committee went with Dubois when he answered Carette' s summons. Carette told the employees that he thought the conciliation officer might not have made the company's position clear at the meeting of June 10th. He claimed to have heard conflicting rumours about what the company's position was. He told them the company wanted to give employees the still unparticularized salary adjustments for which it had been seeking union consent, together with an economic increase of 4% of adjusted salaries. He also said the company felt that their union was trying to "negotiate individual salaries" and that the company would not engage in negotiation of individual salaries. Having heard Carette out, the employees resisted the temptation to respond and told Carette that they would advise their bargaining agent of the offers and statements he had made. The following day, prior to their scheduled meeting with their bargaining agent, each of the employees was handed the following memorandum dated June 12, 1985, together with the notice and cheque referred to in the second paragraph of the memorandum:

TO: OTTAWA EMPLOYEES IN THE BARGAINING UNIT

FR: K. A. FRENCH

I have reached the limit of my patience. It is clear that the Corporation's desire to implement our market average salary policy that came into effect Jranuary 1, 1985 is causing nothing but confusion and mistrust.

I am at a loss to understand why this has been a prcblem. In order to clear the air, I am enclosing a notice of your salary as of January 1, 1985 and a cheque to cover your salary adjustment for the period January 1 to March 31. The cheque amount is net of withholdings for income tax, Canada Pension Plan and Company pension plan. The money for the period April 1 to date will be included in your pay cheque on June 28, 1985.

In my memo of April 23, I indicated that it is impossible for Forintek to capture revenues resulting from cost increases in a prior year. The lengthy delays have created a budget risk for this year which I believe the company must take to remove the confusion that has been created.

Jacques Carette and Jim Dangerfield are available to continue discussions on the issues presented by your executive for the 1985-86 contract year.

French says he decided to implement the salary adjustments and distribute the cheques because, as his covering memorandum indicates, he had reached the limit of his patience. He felt negotiations were being dragged out and that the company was being prevented from presenting proposals it claims to have had available at the April 22nd and June 10th meetings. He says he then understood that the union was insisting on "negotiating individual salaries", something he considered inconsistent with his understanding of collective bargaining. When he had attempted some days earlier to have a conversation with Dubois in his capacity as the newly elected president of the local, Dubois had informed him of PSAC's direction that there be no such conversation in the absence of a PSAC representative. French says all this gave him concern that the company's "traditional lines of communication" with its employees had been cut. He says this concern about the loss of lines of communication was one of the reasons he decided to distribute the memo and cheques. He felt he had an "extremely bad morale problem"~ that the situation was out of control, and that "something precipitous had to be done." He distributed the memorandum and cheques despite having received legal advice that to do so might constitute a breach of the Labour Relations Act.

23. It has been French's practice to meet with employees once a year immediately after the corporation's formal annual meeting. In that tradition, Mr. French met with employees on June 22nd. That meeting differed from previous such meetings in three respects: a luncheon was provided, a "President's Award" for outstanding performance during the previous year was presented to an employee and, of significance here, French devoted a portion of his one hour speech to the subject of salary adjustments and collective bargaining. He spoke of the employees' vote to accept the salary adjustments, the difficulties he had had in implementing them and his inability to understand the position the union had taken on that subject. He spoke of what he described as the union's desire to "negotiate individual salaries." He claimed that the Conciliation Officer had expressed surprise at the union's request for salary information and had described it as "not common." He said the company's lawyers had also said it was unusual. Employee members of the bargaining committee and local executive testified that there was a clear implication in French's remarks on that occasion that the union was not acting in the best interests of Forintek's employees but, rather, from some ulterior motive.

24. The respondent's major defense of the complainant's charges is that, despite all its contrary representations to employees and the union, these salary adjustments were "merit" increases which the company had the right to grant without the union's consent under the provisions of the expired collective agreement.

25. The parties' last collective agreement covered the period April 1, 1984 to March 31, 1985. The two previous agreements covered the periods February 19, 1983 to March 31, 1984 and February 19, 1982 to February 19, 1983. Article 27 of each of those three agreements reads:

ARTICLE 27 - EMPLOYEE CLASSIFICATIONS AND SALARY RANGES

27.01 The classifications of all employees are contained in Appendix "B" hereto and the salary range for each classification is set forth in Appendix "C" hereto.

Actual pay scales are not expressly addressed in any other article of the main body of any of these agreements. The "management's rights" article in each agreement reads:

ARTICLE 3 - MANAGEMENT'S RIGHTS AND RULES

3.01 The union acknowledges that the Employer has the exclusive right and power to manage its operations and as incidental thereto to maintain order and efficiency, to classify' and direct its working force, to hire, promote, transfer, demote and lay off employees and to discipline, suspend or discharge employees for just cause.

Appendix "B" to each agreement lists the names of bargaining unit employees. Beside each name is an alphanumeric classification (reminiscent, not surprisingly, of classifications used in the federal public service) and a numeric salary level code. Appendix "C" to each agreement assigns a salary range to each numeric salary level. The following note appears at the bottom of Appendix "C" to the most recently expired agreement:

Note: Range progression shall be equal to 1/8 of the difference between the minimum and maximum pay level for each salary range.

Each agreement has an Appendix entitled "Salary Adjustments". In the most recently expired collective agreement, that Appendix (Appendix "E") reads as follows:

SALARY ADJUSTMENTS

The Employer proposes a salary increase for employees to take effect April 1, 1984 on the basis of a general and merit adjustment.

Each employee will be evaluated by the Employer in accordance with its Salary Administration Policy and Merit system.

The Employer proposes the following salary adjustments based on each employee salary at March 31, 1984.

1. On April 1, 1984 a general economic increase of 5% will be applied to all salary ranges and to each employee's salary.

2. In addition, on April 1, 1984:

• For those employees who have demonstrated a continuing effort at improving performance and productivity and who are still below the mid point of their salary range, a range progression increase.

• For those employees who have demonstrated significant improvement to performance and productivity or exceptional contributions to the Employer's affairs, a merit increase of no less than 3 %.

Each meritorious employee will be advised of his performance by his manager.

The corresponding appendices to the two earlier agreements are somewhat different. In the Salary Adjustments Appendix to the 1983-84 agreement, the general economic increase was 4.54%, there was an undertaking that the total amount of salary adjustments would represent an increase of 6% and the reference to range progression increases was somewhat different. The Salary Adjustments Appendix to the 1982-83 agreement does not refer to the "Salary Administration Policy And Merit System", which the evidence indicates was adopted in 1983. Instead, it refers to a merit system in which units of merit are assigned in accordance with a performance rating. The 1982-83 Appendix provides for a general increase of 9% together with an increase of 1 % for each unit of merit. By contrast with the 1983-84 and 1984-85 agreements, when the 1982-83 agreement was negotiated, there was no legislated government wage restraint program in effect.

25. The Salary Administration Policy And Merit System referred to in Appendix "E" to the 1984-85 agreement (and in French's written communications with employees) provides, in part:

The salary year extends from April 1 to March 31 of the subsequent year.

The Salary Administration program has three parts;

1. Economic Adjustment

An economic adjustment to the salary schedule will normally apply to all salary ranges within the schedule. The President and Chief Executive Officer, in consultation with management, will establish the economic adjustment. Normally, the adjustment will be effective at the start of the salary year.

2. Range Progression

Range progression permits an employee to reach the mid point of the salary level after four years, contingent upon fully satisfactory performance appraisals. This is the estimated period of time necessary to learn all aspects of a job and perform the duties in a fully satisfactory manner.

The Department Manager is responsible for identifying eligible employees. The awarding or withholding of a range progression increase must be approved by the Division Director.

3. Merit

The merit increase recognizes significant improvements to performance and productivity or exceptional contributions to the Corporation's affairs.

The Department Manager is responsible for identifying eligible employees. The awarding of a merit increase must be approved by the Division Director, in consultation with the President.

All merit is subject to the limitations of the budget available for this purpose, but normally, it is no less then three percent of an employee's salary to preserve the motivational intent.

It is the responsibility of the Department Manager, in consultation with the Division Director, to regularly establish goals, objectives and expectations of employee performance, consistent with the department's program and the Corporation's affairs. Communication of performance assessment to the employee on a regular basis is fundamental to motivation and this salary administration program.

Written performance appraisals are required to support range progression and merit increases. A written performance appraisal must be prepared at least annually for each employee. All written performance appraisals must be discussed between the employee and the supervisor concerned. The appraisal must be approved by the Division Director and copies sent to the employee and to Personnel for the employee 's file.

[emphasis added]

26. Terry Ranger participated on the union's behalf in the negotiation of the 1984-85 agreement and its two predecessors. He testified that during negotiations leading to the 1983-84 agreement, and again during negotiations leading to the 1984-85 agreement, Carette calculated the cost of Forintek's salary adjustment proposal and revealed that cost to the union before the proposal was adopted and agreed to as part of the collective agreement. Thus, PSAC union knew the total amount Forintek proposed to devote to range progression and merit increases even though it might not have known which employees would receive such increases. Although the total cost of salary adjustments as a percentage of payroll is not specified in the 1984-85 agreement as it was in the 1983-84 agreement, Ranger emphasized that the limitations of Forintek's budget for merit and range progression increases were revealed by Carette in the 1984 negotiations before the 1984-85 agreement was finalized. He produced a typewritten sheet which Carette gave him on April 2, 1984, setting out monthly figures for total payroll, economic increase, range progression, and merit. Ranger testified that in previous years all range and merit increases were implemented at the same time as the economic increase negotiated and provided for in the Salary Adjustments Appendix to the collective agreement. Forintek's witnesses were able to identify only two employees who had received an increase of any sort otherwise than on the date general economic increases were implemented. One instance had arisen during the term of the 1983-84 agreement, the other occurred during the term of the 1984-85 agreement. During the meetings referred to earlier and again in his testimony, Carette acknowledged that there had never before been non- "economic" salary adjustments of this magnitude. While he sought to describe these adjustments as merit increases, he acknowledged having told the union that they were not to be confused with merit increases. His explanation for this was that the confusion he wished to avoid was any confusion that these increases were something which could be the subject of collective bargaining. As for their being merit increases implemented in accordance with the Salary Administration Policy recited earlier, Carette acknowledged that none of them had been made on the basis of a written performance appraisal handled in the manner contemplated by the words emphasized in our quotation of the policy in paragraph 25 of this decision. Indeed, Forintek's counsel acknowledged during argument that in dealing with salary adjustments in question here, Forintek had not followed the procedure prescribed for merit increases in its Salary Administration Policy.

27. The complainant trade union argues that the respondent employer's actions together constitute an attempt to effect an end run on the union by by-passing it and dealing directly with bargaining unit employees on matters about which it is obliged to deal with the union as the exclusive bargaining agent of those employees, contrary to sections 15 and 67(1) of the Labour Relations Act. It submits that the employer's refusals to provide information about existing salaries and proposed salary adjustments violated section 15 of the Labour Relations Act, that its unilateral adjustment of salaries in June 1985 violated sections 15 and 79 of the Act and that its communications with bargaining unit employees were calculated to undermine the trade union's relationship with bargaining unit employees and so violated sections 15 and 64 of the Act.

28. The respondent employer argues that its officials acted in a reasonable belief that it was entitled to make the salary adjustments in question under the expired collective agreement, and so could not have had the "anti-union animus" it says is necessary for a finding that it breached any of sections 15, 64 or 67 of the Act even if their belief were wrong. Furthermore, it submits that their belief was correct and that the implementation of the salary adjustments in question was not a violation of section 79 because that action was permitted by the terms of the expired collective agreement. It says there is no evidence that it was unwilling to enter into a collective agreement with the complainant, nor of any motive it could have for such unwillingness. As for its refusals to provide detailed salary information, it relies on its past practice of non-disclosure and on the survey on which that practice was based, submits that the information sought was unnecessary, and argues that the union "has a lot to answer for" for not clearing the air by providing it with each employee's written authorization to release the requested information. It submits that its communications with employees fall within the bounds of the freedom of expression specifically preserved by section 64 of the Act, and did not constitute direct bargaining with employees.

29. The Labour Relations Act limits the circumstances in which employers and employees can use the economic weapons of strike and lockout, the disruptive effects of which so often extend beyond the immediate parties. In particular, the Act prohibits employees from engaging in a strike in order to force their employer to recognize a trade union as their bargaining agent. Instead, absent voluntary recognition by the employer, the limited circumstances in which employees to which the Act applies may lawfully resort to collective economic action can arise only after a trade union has demonstrated to this Board that it represents a majority of employees in a bargaining unit which the Board finds appropriate having regard to considerations which include protection of the employer from the adverse consequences of fragmented bargaining with respect to a multiplicity of bargaining units. If the trade union demonstrates majority support, it becomes the exclusive bargaining agent of all employees in the bargaining unit, with the statutory right to bargain collectively on their behalf and a corresponding statutory obligation (customarily referred to as the duty of fair representation) not to act in a manner which is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit. For its part, the employer is then obliged by the Act to recognize the trade union's Board certified status as exclusive bargaining agent, and both employer and trade union must bargain with a view to entering into a collective agreement. Union and employer may use the strike or lockout weapon to achieve bargaining goals after exhausting the conciliation process mandated by the Act, but neither party is permitted to use its economic power to force a change in the scope of the union's bargaining rights and the employer's corresponding obligation to recognize the union as exclusive bargaining agent for employees in the unit to which those bargaining rights attach: CCH Canadian Ltd. [1974] OLRB Rep. June 375; Carpenters Employer Bargaining Agency [1978] OLRB Rep. Aug. 776; [1978] 2 Can. LRBR 501; Cybermedix Ltd. [1981] OLRB Rep. Jan. 13. Section 15 and other provisions of the Act reinforce the fundamental requirement that an employer recognize the representation rights of its employees' exclusive bargaining agent.

30. The Labour Relations Act provides that:

31. Following certification, the trade union shall give the employer written notice of its desire to bargain with a view to making a collective agreement.

32. 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.

53.-(l) Either party to a collective agreement may, within the period of ninety days before the agreement ceases to operate, give notice in writing to the other party of its desire to bargain with a view to the renewal, with or without modifications, of the agreement then in operation or to the making of a new agreement.

54. Sections 15 to 34 apply to the bargaining that follows the giving of a notice under section 53.

[emphasis added]

The purposes of section 15 (then section 14) were explained by the Board in De Vilbiss (Canada) Limited, [1976] OLRB Rep. Mar. 49:

14. ... a very important function of section 14 is that of reinforcing an employer's obligation to recognize a trade union lawfully selected by employees as their bargaining agent. Certainly the freedom to join a trade union of one's choice declared in section 3 of the legislation would be but an edict "writ on water" if an employer could enter into negotiations with no intention of ever signing a collective agreement. But we believe the duty to meet and make every reasonable effort to make a collective agreement has an even more important function in a modern society that for the most part accepts that trade unions have legitimate and important roles to play. That is to say that the duty assumes that when two parties are obligated to meet each other periodically and rationally discuss their mutual problems in a way that satisfies the phrase "make every reasonable effort", they are likely to arrive at a better understanding of each other's concerns thereby enhancing the potential for a resolution of their differences without recourse to economic sanctions - the impact of which is never confined to the immediate parties of an industrial dispute. At the very least rational discussion is likely to minimize the number of problems the parties are unable to resolve without the use of economic weapons thereby focusing the parties' attention in the eleventh hour on the "true" differences between them....

15. .. the duty described in section 14 has at least two principle functions. The duty reinforces the obligation of an employer to recognize the bargaining agent and, beyond this somewhat primitive though important purpose, it can be said that the duty is intended to foster rational, informed discussion thereby minimizing the potential for "unnecessary" industrial conflict.

At the first bargaining meeting following its certification, the trade union complainant in DeVilbiss had asked the employer for particulars of the existing wage rates and job classifications of employees in the bargaining unit, and the employer had refused to do so. The Board found that this refusal was inconsistent with the duty to make every reasonable effort to make a collective agreement, observing that:

16. .. .Particularly in "first agreement" situations, it is little wonder that a complainant would have an incomplete monetary demand until it fully appreciated the current rate of wages paid by a respondent and the detailed nature of its job structure. Rational and informed discussion cannot easily take place until this information is provided to a trade union and thus this aspect of the duty supports its production. As a general matter of policy, if parties are to engage in economic conflict their differences ought to be real and well-defined. It is patently silly to have a trade union "in the dark" with respect to the fairness of an employer's offer because it has insufficient information to appreciate fully the offer's significance to those in the bargaining unit. Moreover, a trade union has a duty to all of the employees in the bargaining unit and thus has to be concerned, in a large measure, with equality of treatment. ... Further, in the facts at hand, we have no doubt, when the totality of the respondent's conduct is considered, that the "bad faith" aspect of the duty also effectively characterizes the respondent's failure in this regard. But, as noted above, a finding of bad faith is not a prerequisite to a finding that section 14 has been violated.

Since DeVilbiss, the Board has repeatedly observed that section 15 of the Act requires that employers comply with a request by its employees' trade union bargaining agent for particulars of their existing terms and conditions of employment: Radio Shack, [1979] OLRB Rep. Dec. 1220 (jud. rev, denied, in Re Tandy Electronics Ltd., and United Steelworkers of America et al. (1980), 30 D.R. (2d) 29, 80 CLLC 14,017 (Ont. Div. Ct.), leave to appeal to Ontario Court of Appeal refused March 10, 1980); Globe Spring & Cushion Co. Ltd., [1982] ORLB Rep. Sept. 1303; Northwest Merchants Ltd., [1983] OLRB Rep. July 1138, 83 CLLC 16,055; The Windsor Star, [1983] OLRB Rep. Dec. 2147; and The Ontario Cancer Treatment and Research Foundation (Thunder Bay Clinic), [1985] OLRB Rep. May 705. While difficulties with requests for particulars of existing terms and conditions of employment most frequently arise during negotiation of a first collective agreement, the obligation to comply with such requests exists equally during bargaining for the renewal of a collective agreement: Globe Spring & Cushion Co. Ltd., supra; The Ontario Cancer Treatment and Research Foundation (Thunder By Clinic), supra.

31. In DeVilbiss and subsequent decisions, this Board has observed that the process of rational discussion contemplated by section 15 of the Act necessarily requires that the parties disclose to one another certain kinds of relevant information: see, for example, Canadian Industries Limited, [1976] OLRB Rep. May 199, 76 CLLC 16,014; Westinghouse Canada Limited, [19801 OLRB Rep. Apr. 577; Sunnycrest Nursing Homes Limited, [1982] OLRB Rep. Feb. 261; and, Consolidated Bathurst Packaging Ltd., [1983] OLRB Rep. Sept. 1411, 83 CLLC 16,066. In Westinghouse Canada Limited, supra, the Board asked rhetorically (at paragraph 39):

... Having regard to the importance of the exercise, the requirement for full and open discussion, the scope of matters open to bargaining and the statutory framework which binds the parties to the terms of their agreement for its full term, can there be any doubt that the section 14 [now 15] duty requires an employer to respond honestly when asked in bargaining if he is contemplating initiatives of the type which have a real likelihood of significantly impacting on the bargaining unit. Similarly, can there be any doubt that an employer is under a section 14 obligation to reveal to the union on his own initiative those decisions already made which may have a major impact on the bargaining unit. Without this information a trade union is effectively put in the dark. The union cannot realistically assess its priorities or formulate a meaningful bargaining response to matters of fundamental importance to the employees it represents. Failure to inform in these circumstances may properly be characterized as an attempt to secure the agreement of the trade union for a fixed term on the basis of a misrepresentation in respect of matters which could fundamentally alter the content of the bargain.

[emphasis added]

32. In this case, by the time the parties reached the bargaining table the respondent employer had announced its decision to make unspecified increases in employee salaries at a future date, with retroactive and, impliedly, prospective effect. Whether or not implementation of the decision was said to be contingent on some occurrence (as here, where it was said to be contingent on union consent), regardless whether the decision was made or announced before or after notice to bargain was given and apart altogether from any duty which then arose to negotiate about the then unimplemented increases, once the section 15 duty came into play the employer was under an obligation to answer the trade union's request for particulars of the salary adjustments it had determined to make, if only because the employer had adopted the perspective that the adjusted salaries would be the starting point for negotiation of monetary issues and it was patently silly, as the Board observed in DeVilbiss, to keep the union in the dark about what that starting point was.

33. A belief that some number of bargaining unit employees did not wish the requested information disclosed to the union is no answer to a complaint that the failure to disclose it violates section 15 of the Act, any more than a belief that some number of employees did not wish the union to represent them would justify a refusal to bargain with a union which is entitled by law to act as exclusive bargaining agent for a bargaining unit which included those employees. The union's right to and need for the requested information were and are concomitants of the rights and obligations which flow from its status as exclusive bargaining agent, a status which continues until its bargaining rights are abandoned by the trade union or terminated by vote of a majority of employees in the bargaining unit. Although the union has not made a separate complaint about the past survey on which the employer relied during bargaining when it refused to provide requested information, we are bound to observe that it is quite inconsistent with recognition of a trade union as exclusive bargaining agent of all employees in a bargaining unit for the employer to have asked those employees individually (or collectively) whether they approved of the employer's giving information about their salaries to their bargaining agent. The respondent's demand for individual written authorizations was equally inconsistent with its obligation to recognize the union as exclusive bargaining agent, and neither the union's delay in providing nor its attempts to obtain such authorizations can in any way excuse the respondents' conduct. The fact that Forintek had refused to provide requested particulars of existing terms and conditions of employment during the bargaining which led to previous collective agreements without its refusal then becoming the subject matter of an unfair labour practice complaint is no answer to this complaint that its refusal to do so during these negotiations violated section 15 of the Act.

34. Thus, the respondent employer violated section 15 of the Act when it refused to provide the union with requested particulars of the existing salary and proposed salary adjustment of each employee in the bargaining unit..

35. The respondent also violated section 15 by refusing to treat the then unimplemented salary adjustments as something to be discussed in collective bargaining. Whatever may be the outer limits of the duty to bargain, there can be no doubt that the amount of wages or salary to be paid to bargaining unit employees during the proposed term of a first or renewal collective agreement is a subject which must be addressed in bargaining if, as is inevitable, either party raises it. Here the employer says the adjustments could have been implemented without the union's consent during the unexpired term of the last collective agreement without violating any provision of that agreement. The fact is that it sought and was refused the union's consent to the adjustments and did not implement them before the last agreement expired. Even if the agreement permitted unilateral salary adjustments and Forintek had simply announced an unconditional plan to implement such adjustments before that agreement expired, the post-expiry prospective effects of those planned adjustments would still have been a proper subject for collective bargaining and one which the union was entitled from the outset to address.

36. The appropriate distribution of the total wage package is as relevant a subject for collective bargaining as its size. Discussions of the appropriate distribution of wages will address the factors which the parties feel determine or ought to determine the wage each employee receives, and this may well require discussion of the salaries of particular employees or groups of employees. There is certainly nothing unusual about a trade union's seeking a collective agreement which spells out the objective criteria by which each employee's wage is to be determined, leaving no scope for unreviewable management discretion, and by that means effectively determining each and every employee's wage. Indeed, subject to the duty of fair representation (which the union owes to employees, not to their employer), there is nothing legally objectionable about a trade union bargaining agent's seeking an agreement which spells out to the last cent what each individual employee is to receive. If it was their belief that negotiation of individual salaries is inconsistent with collective bargaining, then French and Carette were simply wrong. In that regard, we observe that neither offered any basis for this belief; apart from their involvement in Forintek's collective bargaining with PSAC, neither had any training or experience of collective bargaining in this province which would warrant confidence in self-counsel. Neither seems to have had any concern about the correctness of his understanding of the law, even after Kearney told Carette that his behaviour violated specified sections of the Labour Relations Act. It is axiomatic, of course, that ignorance of the law cannot excuse its breach.

37. Apart from the question whether it violated section 79 of the Act by doing so, a matter with which we deal later, the respondent employer's unilateral implementation of salary adjustments on June 12, 1985 violated section 15 of the Act, for reasons which were explained in the Board's decision in DeVilbiss (Canada) Limited, supra, at paragraph 17:

38. Another concern is the respondent's unilateral change in the terms and conditions of employment while it was in the midst of collective negotiations with the complainant. From the outset, as evidenced by its memoranda of September 19th and 22nd, the respondent began to emphasize its "right" to alter the terms and conditions of employment after the expiration of the fourteen day period provided for in section 70 [now 79]. We put the word "right" in quotation marks because section 70 must be integrated with the policy and wording of section 14 [now 151 and section 7. The trade union is the exclusive bargaining agent for the employees in the bargaining unit. And thus the employer cannot, as a general rule, deal directly with his employees with respect to their terms and conditions of employment. (See Le Syndicat Catholique des Employes de Magasins de Quebec Inc. v. La Compagnie Paquet Ltee 1959 CanLII 51 (SCC), 18 DLR (2d) 346 (SCC); JI. Case Co. v. NLRB (l9) 321 U.S. 332.) He must respond to such issues through the officially designated bargaining agent. When an employer, while negotiating with a trade union, implements new conditions of employment that have not even been first proposed to the trade union, the inference logically arises that the tactic is designed to undermine the status of the trade union - amounting to a suggestion that beneficial terms and conditions of employment do not require the presence of the bargaining agent. (See NLRB v. Reed & Prince Mfg. Co. 205 F. 2d 131 (1st Cir.); Cert. denied (1953) 346, U.S. 887; NLRB v. Katz, (1962), 369 U.s. 736.) Professor Cox ([The Duty to Bargain in Good Faith (1958) 71 Harv. L. Rev. 1401] at (1423) commented on the problem in the following manner:

(2) Unilateral action yields to much the same analysis. When taken during negotiations or upon subjects on which the union wishes to bargain it weakens the union by showing the employees that it is useless to try to negotiate. If the employer unilaterally raises wages or makes some other concession, his conduct effectively tells the employees that without collective bargaining they can secure advantages as great, or possibly greater than, those the union can secure. Unilateral changes made while the employees' representative is seeking to bargain also interfere with the normal course of negotiations by weakening the union's bargaining position. Consequently, proof that an employer changed wage rates or other terms of employment in the midst of contract negotiations ordinarily gives rise to the inference that he had no intention of coming to an agreement; the factual inference can be negated by showing that there is a need for immediate action or by proving that the negotiations had reached an impasse.

In other words, if section 70 was read and applied in a literal fashion, an employer could use the freedom thus found to avoid his statutory duty to recognize a trade union and bargain in good faith. Therefore, it is our opinion that section 70 is designed to provide the employer with freedom to alter the terms and conditions of employment when negotiations have reached an impasse (although even then, while possessing a somewhat different content, the bargaining duty applies (see New Method Laundry & Dry Cleaners (1957) 57 CLLC 18,059) or where there is a bona fide business reason for such immediate action)....

Although Forintek had announced in January that it would make changes in salaries, it had never told the union what the changes were or treated them as a matter for discussion, so it cannot be said that the changes implemented in June had first been "proposed" to the union in the sense intended by the Board in the quoted passage. Forintek cannot rely on the impasse at which negotiations had arrived in June to justify its unilateral action, since that impasse was entirely the result of its own unlawful conduct in refusing to reveal or discuss particulars of its proposed action. We cannot find in the contemporaneous and subsequent explanations French gave for his taking unilateral action at that time any otherwise bona fide business reason for unilateral action which is unrelated to the consequences of Forintek's prior unlawful conduct.

38. Subsection 79(1) of the Act provides:

79.-(l) Where notice has been given under section 14 or section 53 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees, and no trade union shall except with the consent of the employer, alter any term or condition of employment, or any right, privilege or duty of the employer, the trade union or the employees,

(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and

(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or

(ii) fourteen days have elapsed after the Minister has released to the parties a notice that he does not consider it advisable to appoint a conciliation board,

as the case may be; or

(b) until the right of the trade union to represent the employees has been terminated, whichever occurs first.

The purpose of the "statutory freeze" imposed by 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. Reference to the purpose of section 79 is important because the application of its language to particular fact situations is not always a simple task. The status quo of an employment relationship may include the recognized prospect of change. The interpretive problem this creates is most easily illustrated by the apparent dilemma of an employer considering whether he should or should not implement during the freeze a wage increase which he would otherwise have given because he had made a promise to do so before the events which triggered the freeze: whatever he does will alter either the wage rate or a pre-existing right to a wage increase. Another less immediately obvious tension in the statutory language is that created by the simultaneous preservation of pre-existing wage rates and other terms and conditions of employment on the one hand and pre-existing employer rights and privileges on the other. In a first contract situation, those pre-existing employer rights and privileges might be said to include the right or privilege to make unilateral changes in pre-existing wage rates and other terms and conditions of employment, but if the section were interpreted as preserving all such management rights it would be rendered meaningless: see Sunnycrest Nursing Home, supra, at paragraph 44; and, J. M. Schneider Inc., [1984] OLRB Rep. Apr. 609 at paragraph 21.

39. These and other difficulties with the literal meaning of the words of the section have led the Board to adopt a purposive "business as before" interpretation of section 79, which requires that an employer continue to run its operation according to the pattern established before the circumstances giving rise to the freeze occurred: Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 859. The elements of the prior pattern are ascertained from the perspective of employees - a pre-freeze decision to alter wage rates or working conditions may not be implemented unilaterally during the freeze period unless the decision was also communicated to employees before the events which triggered the freeze: Carleton University, [1978] OLRB Rep. Feb. 184; LePatro de 'Ottawa, [1983] OLRB Rep. Feb. 244. Indeed, the importance of the employees' perspective to a purposive analysis of section 79 underlies the recent evolution of the "business as usual" approach into the "reasonable expectations of employees" test applied in Simpsons Limited, [1985] OLRB Rep. April 594.

40. It is important to observe that the purpose of the freeze imposed by subsection 79(1) is the same in renewal bargaining situations as it is when first contract negotiations begin: maintenance of prior pattern of the employment relationship in its entirety. While far more of that pattern is likely to be found defined in the parties' expired collective agreement than would ordinarily be found in the individual employment contracts in place when first contract negotiations commence, as with those antecedent individual contracts the terms of that expired collective agreement might not exhaustively define the rights, privileges and duties which are frozen by subsection 79(1): see, for example, The Hydro Electric Power Commission of the City of Mississauga, [1977] OLRB Rep. Dec. 821; A.N. Show Restorations Ltd., [1978] OLRB Rep. June 479; Scarborough Centenary Hospital, [1978] OLRB Rep. July 679; and Ontario Hydro, [1983] OLRB Rep. Sept. 1536 at paragraph 3. In particular, while subsection 79 may preserve a right specifically reserved to management by the express terms of a collective agreement, and so not prohibit the changes which result from the exercise of that right during the period of the freeze, the same cannot be said for the implied or residual management rights" whose existence would be established at arbitration under the collective agreement by demonstrating that no provision of the collective agreement prohibited their exercise: see Molson 's Brewery (Ontario) Ltd., [1977] OLRB Rep. Aug. 526 at paragraph 10. Accordingly, the assertion that a wage increase was not prohibited by the collective agreement before it expired, even if true, is not a sufficient answer to a complaint that a post-expiry increase violates subsection 79(1).

41. The union gave timely notice to bargain in January 1985, and its collective agreement with Forintek expired on March 31, 1985. The "freeze" imposed by subsection 79(1) began April 1, 1985. Prior to that date, Forintek announced that is would implement retroactive salary adjustments if by March 31st it received the union's consent to do so. The salary adjustments implemented on June 13th fell within the period covered by subsection 79(1). They were not adjustments to which the union had consented, either by March 31st or at all, and so it cannot be said that they were adjustments about which Forintek had made its commitment known before the freeze period began. The expired collective agreement gave the respondent no express right to make salary adjustments otherwise than on April 1, 1984, and even that express right could only be exercised in accordance with the procedures outlined in its Appendix "E" and the Salary Administration Policy and Merit System referred to in it. The salary adjustments in question were not made on April 1, 1984, nor in accordance with the prescribed policy and system. The two instances of mid-contract salary increases offered in evidence by the respondent do not establish a pattern to which the granting of increases to nearly all bargaining unit employees in amounts totalling over $122,000.00 can be said to conform. Employees in the bargaining unit could not have had any reasonable expectation of unilateral salary increases prior to April 1, 1985, particularly when the respondent had repeatedly said that such increases could not be implemented without the union's consent. Accordingly, we find that the implementation of salary adjustments on June 12, 1985, also violated subsection 79(1). It is unnecessary for us to determine whether unilateral implementation of these adjustments before the expiry of the collective agreement would have constituted a breach of that collective agreement.

42. We turn to the submission that the respondent's written and oral communications with bargaining unit employees violated sections 15, 64 and 67 of the Act. Section 64 and subsection 67(1) provide:

43. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

67.-(l) No employer, employers' organization or person acting on behalf of an employer or an employers' organization shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any person or another trade union or a council of trade unions on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

As with section 15, the purpose of subsection 67(1) and one of the purposes of section 64 is to reinforce both the obligation to recognize the trade union's bargaining rights and the prohibition against the use of economic power to undermine those or any other statutory rights associated with collective bargaining. As the language of section 64 reflects, these purposes can be achieved without enjoining all employer communication with employees. Nevertheless, any assessment of the scope of the freedom of expression reserved to employers by section 64 must be sensitive to the labour relations context in which it is made and must strike a balance between that freedom and the freedom to associate which these and other provisions of the Act are intended to protect (see NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) at 617). The employer's freedom to communicate with employees cannot be used to undermine the trade union's bargaining role: Radio Shack, supra, at paragraph 75 and A.N. Shaw Restoration Ltd., [1978] OLRB Rep. May 393, at paragraph 18.

43. In assessing whether employer communications during or in relation to collective bargaining go beyond the bounds of permitted speech into the realm of prohibited interference, the Board has considered whether they reflect an attempt to explain the position the employer has taken at the bargaining table or, rather, an attempt to disparage the union or its proposals. The Board looks at the context, content, accuracy and timing of employer communications in discerning their purpose and effect. Communications made after good faith bargaining has reached an impasse are less suspect than those made during early stages of bargaining, accurate statements are less suspect than inaccurate ones and, in any event, communications of explanations or positions not first fully aired at the bargaining table are highly suspect: A.N. Shaw Restoration Ltd., supra, at paragraphs 19 to 22 and The Citizen, [1979] OLRB Rep. Mar. 177 at paragraphs 57 to 64; and see Fruehauf Trailer Company of Canada Limited, [1975] OLRB Rep. Jan. 77; Canada Cement Lafarge Ltd., [1980] OLRB Rep. Nov. 1583; Globe and Mail, [1982] OLRB Rep. Feb. 189.

44. When the respondents' communications with employees are considered against the backdrop of its dealings with the trade union during the period in question, we find that they constitute interference with the trade union's representation of bargaining unit employees, contrary to section 64 of the Act. French and Carette say they could not have anticipated that the trade union would refuse its consent to salary adjustments. Its refusal to do so when denied full particulars of the proposed adjustments was entirely foreseeable to anyone with a basic understanding of a trade union's proper role in collective bargaining. In any event, by the end of the day on February 22, 1985, French and Carette needed no crystal ball - they knew that coupling a request for consent to salary increases with a refusal to say what the increases were or discuss the matter in collective bargaining had ensured that PSAC would not consent and had created dissention between PSAC and bargaining unit employees. The respondents' actions and communications thereafter were calculated to exploit the disruptive potential of the position they had put PSAC in and weaken PSAC's support among the employees it represented.

45. The respondents' intention to disparage the trade union, and their willingness to sacrifice accuracy in order to do so, are apparent from the repeated references in French's written communications to PSAC's responsibility for delays in the fair treatment of employees, the incorrect assertion in Carette' s March 29th telegram that PSAC had failed to do something it had undertaken to do, the incorrect implication in the April 23rd memorandum that PSAC had given no reason for its refusal to salary adjustments and the suggestions in French's June 22nd speech that the union had some ulterior motive for handling these matters as it had. Whatever may have been the real time constraints on Forintek's implementing salary adjustments, it timed and framed its communications about them so as to maximize the sense that urgency precluded discussion and to instill in employees the belief that there could be no improvements of this kind on any terms other than those unilaterally determined by their employer and that any attempt by PSAC to meaningfully discharge its role as bargaining agent would only stand in the way of such improvements. We are unable to believe that these obvious and foreseeable effects of their behaviour were not foreseen and intended by French and Carette.

46. In addition to their telegrams, memoranda and speech, there were also the respondents' meetings with members of the local executive in the absence of Kearney or any other representative of PSAC. Carette said he had understood from past dealings with PSAC that the local had considerable autonomy and, as a result, he had dealt directly with the local's executive on previous occasions. French explained it had been his practice to have an introductory meeting with each new local President at a convenient time after his or her election. The union did not challenge the accuracy of these general statements - it challenged the adequacy of them as an excuse for what took place in meetings French and Carette had with Hogan and other members of the local executive. Past practice cannot explain or excuse meetings held after February 22, 1985, when Keamey made it perfectly clear that he was the spokesperson for PSAC with whom Forintek would have to deal on matters involving salary adjustments and collective bargaining. That established the protocol for Forintek's communications with PSAC on those issues. Not every communication thereafter with a member or members of the local executive constituted a departure from that protocol and thus a violation of the Act. For example, Carette's brief discussion with Hogan on March 25th represents the kind of innocuous peripheral reference to collective bargaining which can only be expected to arise in workplace conversation. By way of contrast, French's summons of and meeting with Hogan on March 8th did not involve the innocuous small talk of a get-acquainted meeting. French's conversation with Hogan, an employee whom he knew was not PSAC'S spokesperson on the matters under discussion, was for the obvious purpose of determining the extent that employees supported the position taken by their bargaining agent. As the Board observed in Securicor Investigation & Security Ltd., [1983] OLRB Rep. May 720 (jud. rev. denied April 4, 1985 (Ont. Div. Ct.)) at paragraph 62:

... A trade union, as the representative of all the employees in the bargaining unit, adopts bargaining stances which it considers to be in the best interest of and in line with the bargaining objectives of the membership as a whole and need not reveal to the employer information pertaining to the sentiments of individual members or groups of members or about when and under what circumstances it might be prepared to alter its bargaining position. Any attempt by the employer, or anyone acting on behalf of the employer, to obtain this type of information by going directly to the employees in the bargaining unit, undermines the exclusivity of the union's bargaining rights and, therefore, is in breach of section 64 of the Act. ...

47. The most objectionable of all the respondents' private meetings with employees was

the meeting of June 11, 1985. Forintek knew, as a result of the experience French recited when explaining his actions of June 12th, that members of the local executive, and particularly its new President, Raymond Dubois, had been instructed not to meet with management except in the presence of a PSAC representative. Forintek knew that Kearney was PSAC'S spokesperson on salary adjustments and other collective bargaining issues. Despite this, Carette summoned Dubois to make known to him positions and offers on those issues which had not been communicated to PSAC through Kearney. His explanation for so doing was his professed belief that Forintek's positions on these issues might not have been made clear to PSAC during conciliation the day before. A belief that this was so does not explain the means chosen to clarify Forintek's position. Carette gave no satisfactory explanation for his failure to communicate the clarification to Kearney in accordance with the established protocol, either at a meeting called for that purpose or by letter or telephone. Although Dubois and the employees who went with him when he answered Carette's summons are described in PSAC's complaint as "representatives of the complainant", in the absence of Kearney they were not PSAC 's representatives for the purposes of receiving or responding to the communications Carette wished to make on that occasion, and Carette knew that. The only advantage this means of "clarifying" its position had for Forintek over the other more orthodox means open to it was that it might elicit some immediate response directly from employees rather than through PSAC. We are bound to infer from his actions that that is what Carette hoped would be the result.

48. Carette' s actions on June 11th conveyed a message that Forintek would prefer to deal with the employees directly or through their local executive rather than through PSAC representatives, and so violated sections 15 and 64 of the Act. As they involved the communication otherwise than to PSAC of a new offer with respect to collective bargaining matters, they also violated subsection 67(1) of the Act.

49. When the Board is satisfied that an employer or person acting on behalf of an employer has acted contrary to the Act, subsection 89(4) authorizes the Board to "determine what, if anything, the employer ... [or] person ... shall do or refrain from doing with respect thereto." That subsection confers a very broad, although not boundless, remedial authority. We must now consider what would be the proper exercise of that authority in the circumstances of this case, bearing in mind that any order we make must have a genuinely remedial, as opposed to punitive, purpose: Radio Shack, supra, at paragraph 90 to 124.

50. In its complaint filed June 20, 1985, PSAC asked that the Board:

(a) Declare that the Respondents have violated the aforesaid sections of the Labour Relations Act.

(b) Order that the Respondents cease and desist from breaching the said sections;

(c) Order that the Respondent, FORINTEK CANADA CORP., bargain in good faith;

(d) Order that the Respondent, JACQUES CARETTE, be prohibited from becoming involved in any manner whatsoever in collective bargaining negotiations;

(e) Order the Respondent, FORINTEK CANADA CORP., to produce to the Complainant the salary survey which it performed in 1984;

(f) Order the Respondent, FORINTEK CANADA CORP., to include the item of "salary catch-up" as a negotiating item;

(g) Order the Respondent, FORINTEK CANADA CORP., to provide particulars as to how the salary catch-up cheques that were distributed were calculated and how the recipients were chosen;

(h) Order the Respondent, FORINTEK CANADA CORP., to submit a complete proposal that it would be willing to accept as a collective agreement;

(i) Order the Respondent, FORINTEK CANADA CORP., to pay damages to the Complainant in such amount as the Board shall determine appropriate;

(j) If violations be found, order the Respondent, FORINTEK CANADA CORP., to post a "Notice to Employees", indicating the said violations and indicating FORINTEK CANADA CORP. 's assurances that it will cease such practices;

(k) Order the Respondents to pay the legal costs of the Complainant; and,

(1) Make such further and other order or directions as might be appropriate in all the circumstances.

By letter dated June 28, 1985, the complainant added a request that the Board direct the parties to refer all matters remaining in dispute between them to interest arbitration.

51. At the conclusion of evidence and argument on September 25, 1985, we made an oral ruling which was later recorded in a written decision dated October 7, 1985. That decision read as follows:

52. At the conclusion of our hearing of evidence and argument in this matter we advised the parties that while we did not propose to deliver an immediate and detailed decision covering all the matters put in issue in these proceedings, because of the importance we attached to promoting a prompt resumption of the parties' collective bargaining we did propose to deal immediately with certain aspects of the case.

53. We told the parties it was our unanimous view that the respondent employer had been in breach of its duty under section 15 of the Act to bargain in good faith and make every reasonable effort to make a collective agreement. We observed that this breach had resulted from a significant misconception by the respondent's management of the nature of the collective bargaining process and the role in that process of a trade union bargaining agent. We noted that in all probability the parties' difficulties would continue whatever we might order in this case, if management's approach to and understanding of the collective bargaining process remained unchanged; on the other hand, future difficulties might be avoided and present ones more creatively and appropriately solved at the bargaining table if management did reappraise and change that approach and understanding, in which case the future release of a Board decision fully reciting and legally analysing the parties' past behaviour might be counter-productive.

54. Having made those observations, we ruled that the remedies we would award with respect to the respondent's breach of section 15 would include at least those now set out in subparagraphs (a), (c) and (d) of paragraph 5 of this decision, and that the order in sub-paragraph (c) would have been made whether or not the trade union had chosen to provide the authorizations requested by the employer. We advised the parties that a full decision dealing with all of the complainant's allegations and setting out in full our findings, reasons and full set of remedies, would not issue for at least two months, and would not issue at all if the parties both so request within that period or before the decision is released.

55. On reflection, we feel that in order to maximize the possibility that the parties will themselves resolve what our interim oral decision left outstanding, there is one other immediate finding of which the parties should be made aware. We are satisfied that the respondent's implementation of salary adjustments in June, 1985, violated the Labour Relations Act. If the parties have by then been unable to fashion their own remedy for this breach, we will address that and all other remaining matters in our final decision.

56. In summary, the Board

a) declares that the respondent has breached its duty under section 15 of the Labour Relations Act;

b) declares that the respondent's implementation in June, 1985, of salary adjustments for employees in the bargaining unit represented by PSAC constituted a violation of the Labour Relations Act;

c) directs that the respondent forthwith provide the applicant with information concerning the salary of each bargaining unit employee both before and after the aforesaid salary adjustments;

d) directs that the respondent meet and bargain with the applicant at such times and places as may be prescribed by the conciliation officer presently seized of that role in the parties' negotiations, and that the respondent forthwith contact that conciliation officer to make arrangements in that regard;

e) reserves for a period of at least two months its final decision on all other issues raised and remedies requested by the complainant.

By letter dated November 5, 1985, counsel for the complainant advised the Board that the parties had not reached agreement, and asked whether the Board intended to allow the parties what he described as "a final opportunity to make submissions as to the appropriate remedies." By letter dated November 11, 1985, counsel for the respondent asserted that, since the Board's preliminary decision, there had been one conciliation session at which the complainant had requested a "non-Board report" and that the respondent had requested that the conciliator reconvene the parties to continue discussions. He submitted that in these circumstances lt would be conducive to the resolution of outstanding matters if the Board would withhold its final order and reasons. In the alternative, he submitted that if the Board was disposed to hear further argument, it should hear evidence and argument with respect to the behaviour of the parties since September 25, 1985. This led to a letter dated November 18th in which counsel for the complainant took the position that the Board was "functus with respect to the question of evidence", opposed the Board's considering evidence of subsequent events and asked that the Board rule on its request for a further hearing on the question of remedy.

52. What we invited and assumed we heard on September 25, 1985, was nothing less than final and full argument with respect to all of the matters in issue between the parties as of that date. The "final decision" contemplated by paragraph 5(e) of our decision of October 7, 1985, was a decision on the matters in issue between the parties as of September 25th. Of course, had a final decision been pronounced on September 25th, the propriety of the parties' subsequent behaviour might later have become the subject either of a fresh complaint or of a request for reconsideration of that "final decision" or both. Nevertheless, in the circumstances presented by the parties' correspondence in November 1985, we concluded that we ought to complete the process of determining the original complaint on the evidence and argument heard up to September 25, 1985, even though there might be some delay in doing so, rather than reopen the hearing. Accordingly, on our instructions the Registrar advised the parties that we did not propose to hear further argument, nor to take into account any allegation with respect to conduct subsequent to October 7th, before releasing the final decision contemplated in our decision of October 7th.

53. We will grant the remedies claimed in paragraphs (a), (b), (c), and (j) of the claim for relief quoted in paragraph 50 of this decision. These are entirely common-place remedies in cases of this kind. If any explanation of the necessity or propriety of such remedies is required, it may be found in the Board's decision in Radio Shack, supra. Insofar as they affect the respondent Carette, the declaration and cease and desist order will be with respect to breach of section 64, since sections 15, 67 and 79 are not provisions which can be breached by a ''person acting on behalf of an employer.

54. The concerns which underly the remedies claimed in paragraphs (f), (g) and (h) of the complainant's claim for relief are adequately addressed by an order that the respondent Forintek comply with section 15 of the Act. The issue of "salary catch-up" is an inseparable component of the issue of salary which so obviously must be the subject of negotiations for the renewal of the parties' collective agreement. Section 15 imposes on both parties an obligation to engage in rational discussion. Rational discussion requires that each party to provide a full justification for its own position on each item, and particularly on monetary items: Canadian Industries Limited, [1976] OLRB Rep. May 199 (and see, Royal Conservatory of Music, [1985] OLRB Rep. Nov. 1652 at paragraphs 35 to 38). If the position Forintek takes at the bargaining table is premised on the appropriateness of the salary distribution which resulted from the salary adjustments of June 1985, then the basis for the salary adjustment decisions may well be something the respondent will be obliged to disclose, if asked, in order to comply with section 15. It would be inappropriate in framing the remedy in this case to dictate or speculate about the course proper negotiations ought to or might take, other than to require that they comply with section 15 of the Act. Forintek's obligation to provide particulars as to how the salary catch-up cheques were calculated and how the recipients were chosen will depend on the position it takes in bargaining. Of course, section 15 requires each participant in bargaining to take a position and to state, when asked, what collective agreement it would be willing to sign. Parties to collective bargaining often refrain from demanding that the opposite party crystalize anything other than its opening position until their negotiations are well beyond the stage these parties' negotiations had reached by September of 1985. A direction that the respondent submit a complete proposal is a piece of remedial boiler plate which in this case would add nothing to our direction that the respondent bargain in good faith and make every reasonable effort to make a collective agreement and, indeed, would detract from the focus of this decision, which is on the past unwillingness of the respondent to discuss and explain its position rather than on any unwillingness of the respondent to take positions.

55. It would not be appropriate to order that the respondent Jacques Carette be prohibited from becoming involved in any manner whatsoever in collective bargaining negotiations, as the complainant asks in paragraph (e) of its claim for relief. We have found and will declare that the respondents Forintek and Carette violated the Labour Relations Act, and will order that both respondents cease and desist from breaching the Act. Both respondents will no doubt be mindful of the consequences to them of violating these orders, having regard to the provisions of subsection 89(6) of the Labour Relations Act and section 13 of the Statutory Powers Procedure Act. The respondents can best assess how to comply with the Act and avoid those consequences. However much Mr. Carette may be responsible for the decisions and behaviour which caused or constitute Forintek's violations of sections 15, 64, 67 and 79 of the Act, we are not in a position to say that further breaches are inevitable if his involvement in collective bargaining negotiations continues. The right of each party to collective bargaining to select its representative without interference by the other is not one with which the Board will lightly interfere, even in these circumstances.

56. Counsel for the complainant observed thail its claim for an order directing that the parties proceed to interest arbitration was a novel one, but submitted this ought not to stand in the way of the Board's adopting it as a remedial response to the unique problems created by the combined effect of Forintek' s implementation of salary adjustments and the other violations which we have found here. Counsel argued, and we are persuaded, that the unilateral change in wages may have narrowed the range of positions that the complainant can realistically take in bargaining and still retain the support of the employees it represents. Counsel submitted that if the matter of salaries were referred to interest arbitration along with all other matters in dispute, then the complainant's ability to influence the result would be unimpaired by the damage the respondent had caused to the complainant's bargaining power. While the form of the proposed remedy may be unique, its nature is not. This Board has on many occasions dealt with the proposition that it should respond to particularly serious violations of section 15 by deciding the terms of a collective agreement and imposing it on the parties. The Board has consistently held that this is not a remedy which it ought to, or indeed, can provide: DeVilbiss (Canada) Limited, supra, The Journal Publishing Company of Ottawa Limited, [1977] OLRB Rep. June 309; The Daily Times, [1978] OLRB Rep. July 604; and Radio Shack, supra. The reasoning in those cases applies with equal force to an order which obliges the parties to abide by the terms of a collective agreement imposed by the some third party other than the Board. The added remedial request contained in the complainant's letter of June 28, 1985 is, accordingly, denied. We are left to consider what other remedy or remedies would be responsive to the complainant's legitimate concern about the effects on collective bargaining of the respondent's improper implementation of salary adjustments in June of 1985.

57. Generally, the logical response to an improper unilateral alteration in the employment status quo is one which the complainant has not sought: a direction that the status quo be restored. It is not hard to see why the union would not seek that remedy here; to do so would only further the respondents' purpose, which was to make it appear that the union was intent on acting contrary to the interests of employees. It is apparent that the respondents have not been totally successful in alienating bargaining unit employees from the complainant; there has been no application by any bargaining unit employees to terminate the complainant's bargaining rights. Of course, that does not show that there has been no damage to the relationship between the PSAC and bargaining unit employees. The damage done may be ameliorated, at least in part, by informing bargaining unit employees of the results of this application and of the findings of this Board. That is one of the purposes of the "posting" remedy which we have already indicated will be granted here. We propose in this case to take the concept of that remedy one step further, and direct that Forintek provide each employee in the bargaining unit with a copy of this decision made and delivered at the Forintek's expense. In addition, and in consultation with PSAC, Forintek shall make arrangements for a one hour meeting of bargaining unit employees with representatives of PSAC during working hours, in the absence of members of management and without loss of pay, so that the PSAC can review with them this decision, the then outstanding issues in collective bargaining, the materials referred to in the next paragraph or any other subject it considers relevant to its role as the employees' exclusive bargaining agent.

58. As a result of our decision herein dated July 26, 1985, (reported at [1985] OLRB Rep. July 1050) representatives of the trade union had an opportunity to examine the TSK salary survey and related documents, but this was under a strict constraint that any knowledge thus acquired could be used only for the purpose of the proceedings before this Board and not for collective bargaining or any other purpose. At this point, then, the trade union is unable to speak to employees about the contents of the survey. It is thus unable to respond to earlier employer communications which suggested that salary adjustments were for the purpose of implementing that survey and thereby lent them an aura of fairness and objectivity on which the employer relied in denigrating the union's refusal to consent to them. We have concluded it would be an appropriate remedial response to the employer's violations of the Act to require the unconditional production to the complainant of the TSK salary survey and the related documents which were put before the Board in the course of its hearings. In so ordering, we should not be taken to have decided that the respondent was under a collective bargaining obligation to produce those documents when they were requested at meetings held prior to the unilateral implementation of salary adjustments. Had the parties' collective bargaining proceeded to a point at which the required rational explanation of the respondent's position on salary involved a reference to the data or conclusions contained in that survey, it might then have been argued that section 15 required the respondent to produce the documents or disclose their contents: see General Electric Co. v. NLRB, 466 F 2d 1177, 81 LRRM 2303 (USCA, 6th Cir., 1972). Here the survey and related documents are ordered produced as part of a remedy for the respondent's illegal implementation of unilateral salary increases, and it is unnecessary to determine in this decision whether the duty of disclosure in this jurisdiction extends to salary or wage surveys.

59. The 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, supra, at paragraphs 96 to 115, Canada Cement Lafarge Ltd., [1981] OLRB Rep. Dec. 1722, and Fotomat Canada Limited, [1982] OLRB Rep. July 1020. While not every instance of bad faith bargaining should result in an award of damages (see Canada Cement Lafarge Ltd., supra, at paragraph 26), we are satisfied that such an award is necessary in this case. In accordance with the Board's usual practice where damages are claimed and liability for them is disputed, the parties did not lead and the Board did not entertain the evidence necessary to assess the quantum of those damages, leaving that issue to be determined in a later hearing if liability were found and the parties were thereafter unable to settle the issue of quantum. At this stage our direction with respect to damages will be in general terms, and we will retain jurisdiction to deal with quantum if the parties are unable to settle it.

60. Finally, there is the complainant's request for an order that the respondents pay the legal costs of the complainant in these proceedings. In Radio Shack, supra, the Board dismissed a similar request and observed:

The Board is hesitant to pursue this line of compensation because of the possibility that the denial of legal costs to those parties who successful defend against complaints may be misunderstood and perceived as unfair. This policy may be reviewed by the Board from time to time.

Those concerns apply with equal force to the circumstances of this case, which in our opinion do not warrant reconsideration of the policy announced in Radio Shack.

61. In summary, and in addition to the declarations and directions set out in our decision of October 7, 1985, the Board

(a) declares that the respondent Forintek Canada Corp. violated sections 15, 64, 67 and 79 of the Labour Relations Act and that the respondent Jacques Carette violated section 64 of the Labour Relations Act;

(b) orders that the respondents cease and desist from breaching the said sections;

(c) orders that the respondent Forintek Canada Corp. bargain with the complainant and make every reasonable effort to make a collective agreement;

(d) directs that the respondent Forintek Canada Corp. forthwith cause copies of the attached notice marked "Appendix" to be signed by its President and posted in conspicuous places at its laboratories in Ottawa where bargaining unit employees are employed, including all places where notices to such employees are customarily posted, and to keep these notices posted for 60 consecutive working days. Reasonable steps shall be taken by the respondent to insure that these notices are not altered, defaced or covered by any other material. Reasonable physical access to the premises shall be given by the respondent to two representatives of the complainant from time to time to satisfy itself that this posting requirement has been and is being complied with;

(e) directs that the respondent Forintek Canada Corp. forthwith deliver to each employee in the bargaining unit a copy of this decision, which copies shall be made and delivered by the respondent at its expense;

(f) directs that the respondent Forintek Canada Corp. in consultation with the complainant make arrangements so that representatives of the complainant can meet with bargaining unit employees for a period of at least one hour during working hours without employee loss of pay and in the absence of members of management;

(g) directs that the respondent provide the complainant with copies of

(i) the Report of Thorne, Stevenson & Kellogg entitled "Maintaining Fair Compensation At Forintek - Final Report" dated December 1984 - a copy of which was marked as Exhibit 30 in these proceedings;

(ii) the 3 page letter from Thorne, Stevenson & Kellogg to the respondent dated November 23, 1984, and the 5 pages of "computer runs" referred to in that letter, copies of which were marked as Exhibits 39A and 39B in these proceedings;

(iii) the compilations of proficiency ratings copies of which were marked as Exhibits 29 and 46 in these proceedings; and,

(iv) the Salary Survey Report summary and two attached pages, copies of which were marked as Exhibit 31 in these proceedings,

and declares that in its use of these documents the complainant shall no longer be under any constraint arising out of its having earlier had production of them for a limited purpose in these proceedings;

(h) directs that the respondent pay to the complainant and to all bargaining unit employees compensation for all losses that the complainant can establish by reasonable proof as arising from the respondent's illegal acts, including damages for the loss of opportunity to negotiate a collective agreement during the period February 22 to September 25, 1985, together with interest.

We remain seized with this complaint for the purpose of resolving any dispute over the implementation of these directions or the quantum of the damages awarded, but if in the period of one year following the release of this decision neither party requests that this matter be relisted for hearing, it shall be terminated.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE ISSUED THIS NOTICE IN COMPLIANCE WITH AN I2RDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH BOTH FORINTEK CANADA CORP. AND THE PUBLIC SERVICE ALLIANCE OF CANADA HAD THE OPPORTUNITY TO PRESENT EVIDENCE. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE ONTARIO LABOUR RELATIONS ACT AND HAS ORDERED US TO INFORM OUR EMPLOYEES OF THEIR RIGHTS.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

To ORGANIZE THEMSELVES;

TO FORM, JOIN OR HELP UNIONS TO RARGAIN AS A GROUP, THROUGH A REPRESENTATIVE OF THEIR OWN CHOOSING;

To ACT TOGETHER FOR COLLECTIVE BARGAINING;

To REFUSE TO DO ANY AND ALL OF THESE THINGS..

WE ASSURE ALL OF OUR EMPLOYEES THAT:

WE WILL NOT DO ANYTHING THAT INTERFERE WITH THESE RIGHTS.

WE WILL NOT REFUSE TO BARGAIN COLLECTIVELY WITH THE PUBLIC SERVICE ALLIANCE OF CANADA AS THE EXCLUSIVE BARGAINING AGENT OF ALL EMPLOYEES COVERED BY OUR LAST COLLECTIVE AGREEMENT WITH THAT TRADE UNION.

WE WILL NOT IN ANY OTHER MANNER INTERFERE WITH THE PUBLIC SERVICE ALLIANCE OF OF CANADA IN ITS REPRESENTATION OF EMPLOYEES UNDER THE ACT.

WE WILL MAKE WHOLE THE PUBLIC SERVICE ALLIANCE OF CANADA FOR ALL LOSSES SUFFERED BY REASON OF OUR REFUSAL TO BARGAIN IN GC'OD FAITH AS DIRECTED BY THE BOARD.

WE WILL MAKE WHOLE ALL BARGAINING UNIT EMPLOVEES WHO SUFFERED LOSSES BY REASON OF OUR FAILURE TO BARGAIN IN GOOD FAITH AS DIRECTED BY THE BOARD.

WE WILL COMPLY WITH ALL OTHER DIRECTIONS OF THE ONTARIO LABOUR RELATIONS BOARD INCLUDING:

(1) PROVIDING EACH BARGAINING UNIT EMPLOYEE WITH A COPY OF THE BOARD'S DECISION,

(2) PROVIDING THE PUBLIC SERVICE ALLIANCE OF CANADA WITH COPIES OF THE THORNE, STEVENSON & KELLOGG SALARY SURVEY AND RELATED DOCUMENTS;

(31 PROVIDING AN OPPORTUNITY FOR REPRESENTATIVES OF THE PUBLIC SERV-CE ALLIANCE OF CANADA TO MEET WITH BARGAINING UNIT EMPLOYEES FOR A PERIOD OF ONE HOUR DURING WORKING HOURS WITHOUT LOSS OF PAY;

WE WILL BARGAIN COLLECTIVELY WITH THE PUBLIC SERVICE ALLIANCE OF CANADA WITH RESPECT TO THE SALARIES TO BE PAID TO EMPLOYEES IN THE BARGAINING UNIT IT REPRESENTS.

FORINTEK CANADA CORP.

PER: _____________________

PRESIDENT

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 30TH day of APRIL 19 86