Gerald Lecuyer v. Canadian Paperworkers Union, Local 132, 1986 CanLII 1600

Gerald Lecuyer v. Canadian Paperworkers Union, Local 132

[1987] OLRB Rep. April 529

1104-83-U Gerald Lecuyer, Cash Podlewski and John Polhill, Complainants, v. Canadian Paperworkers Union, Local 132 and Canadian Paperworkers Union, Respondents, v. Abitibi-Price Inc., Intervener

BEFORE: Owen V. Gray. Vice-Chairman, and Board Members J. A. Ronson and L. C. Collins.

APPEARANCES: F. J. W. Bickford, J. D. Polhill, C. W. Podlewski and Gerald A. Lecuyer for the complainants; W. Dubinsky, J. R. Mclnness, Martin Brindley and Dick Facca for the respondents; D. W. Brady, A. Shields, R. Dixon and O. Halushak for the intervener.

DECISION OF OWEN V. GRAY, VICE-CHAIRMAN; December 29, 1986

[When this decision was originally published in the January Report, the opinion of Board Mem­ber L. C. Collins was inadvertently omitted. The complete decision follows: Editor]

I

1. The matters dealt with in this decision arise out of the majority decision in this matter dated July 23, 1985, now reported under the name Gerald Lecuyer, [1985] OLRB Rep. July 1099, and hereafter referred to as "the initial decision." The nature of the complaint in this matter was described in paragraph 1 of the initial decision:

The three complainants are skilled tradesmen employed by Abitibi-Price Inc. ("Abitibi") in the mechanical department of its Mission Mill ("the Mill") at Thunder Bay. At all times material to this proceeding, the terms and conditions of their employment and that of other Mill employees were governed by a collective agreement between Abitibi and "the Canadian Paperworkers Union, CLC and it's [sicl Local 132" (referred to here, as in the collective agreement, as "the Union") with effect from May 1, 1982 to April 30, 1984. Beginning in July, 1982, there were several occasions on which employees were selected for short-term layoff from their regular jobs on the basis of their length of service at the Mill ("mill seniority"). The complainants and others in the mechanical department felt such layoffs violated the terms of the collective agreement, which in their view required that selection of employees for layoff from their regular jobs be based on length of service in the department concerned ("departmental seniority"). The com­plainants attempted to grieve the effects and potential effects on them of the company's reliance on mill seniority in effecting layoffs in July, 1982 and thereafter. The union, however, refused to accept or present some of their grievances; the others of those grievances were not taken beyond the first step in the grievance procedure, where they were denied by the employer. The complainants say that the Union's treatment of them and their grievances violated sections 68 and 70 of the Labour Relations Act...

2. The initial decision found that through certain acts and omissions of Ron Balina, the then President of Local 132, the respondents had acted in a manner which was both arbitrary and in bad faith in representing the complainants, and in so doing had violated section 68 of the Act. In refusing to process the complainants' grievances, Balina had told the Local's membership that a similar grievance ("the Landversitch grievance") had been denied by the company at Step 2 on the basis that there was no violation of the collective agreement. In fact, that had not been the com­pany s response. Its response had been that, in the past, departmental seniority had indeed been the basis on which employees had been selected for layoff and mill seniority had only provided an employee with access to "bottom jobs" in other departments in the mill once that employee was laid off from his own department on the basis of departmental seniority. In its step 2 response to the Landversitch grievance, the company had gone on to say:

……however, since Mr. Balina indicated agreement with the Company's procedure and since he has taken the position that it should continue in the future, the Company will not amend this practice unless Mr. Balina, on behalf of Local 132, indicates a desire to handle future situations on a departmental seniority basis.

Balina had withheld this response from the membership. He had also withheld from the member­ship a letter written to him by the mill manager reiterating the company's position that the use of mill seniority in determining order of layoff had been and would be solely the result of Balina's having asked the company to take that approach, and that the company would revert to the use of departmental seniority if the union so requested. In short, Balina had told the complainants and the membership that the company was resisting the complainants' claim when, in fact, it was he whose resistance was responsible for the failure of their grievances. Within the local union, it was well understood that its officers could not change the collective agreement except through collec­tive bargaining which, by union custom, would require membership approval of any proposed amendment before the union could present it to the employer. Any resort the complainants might otherwise have been able to make to this rule or to internal union procedures was undermined by Balina's misrepresentations to the membership about the company's interpretation of the collective agreement in its answer to the Landversitch grievance. While other facts contributed to the finding that Balina's behaviour resulted in violation by the respondents of section 68, the facts just recited are particularly important to an understanding of the approach we have taken to formulation of a remedy in this matter.

II

3. The major remedy sought by the complainants was a direction that the respondents take the complainants' grievances to arbitration. The initial decision expressed concern about the pro­priety of that remedy in the particular circumstances of this case. After reviewing the Board's juris­prudence with respect to referral to arbitration, the initial decision made these observations:

4. This case differs from those in which the Board has directed that the trade union and employer process the complainants' grievance to arbitration. The fundamental difference is that the underlying dispute is not between complainants and their employer; the real dispute is inter­nal to the union. If the union had decided to advocate the complainant's interpretation of the collective agreement, the evidence now before us suggests very strongly that Abitibi would have accepted and acted on that interpretation. As a result, when assessing the damages to the com­plainants which result from the union's breach of the Act, the likely outcome of a grievance sup­ported by the union is a much less critical contingency than the question whether the union would have decided to support the grievance if it had dealt with that question in a manner which was not arbitrary, discriminatory or in bad faith.

5. With the possible exception of the layoffs in July, 1982, the layoffs which the complainants wish to challenge at arbitration were carried out in accordance with a procedure the employer adopted or continued at the union's request. A challenge in the union's name to the employer's use of that procedure after that request was made and while it remained outstanding would surely be answered with the defence that the union is estopped from challenging the procedure it approved in the October meeting on the Landversitch grievance. It would clearly be unfair for us to fashion a remedy which exposes the employer to liability to the complainants for the adverse consequences to them of a layoff procedure requested by their union. If we were to direct arbitration and require that the employer not raise the estoppel defence, then we would also have to direct that the union bear liability for any damages awarded in arbitration with respect to claims against which the estoppel defence would have been successful. This would leave Abitibi with no reason to resist the position which our order would permit the complain­ants to assert in the union's name, unless we were also to take up Abitibi's rhetorical request that we tell it what position to take if we direct a referral to arbitration. This all seems a highly artificial and unsatisfactory way to assess damages for which only the union would ultimately be responsible.

6. The dynamics of an arbitration with respect to the July, 1982 layoffs might be different. We have not heard Abitibi's version of the discussion about mill seniority at the union-management meeting of June 23, 1982, and do not know whether a challenge to the July layoffs might be met with an estoppel defence arising from that discussion. Even assuming that it would not, Abitibi's second step answer to the Landversitch grievance does not leave much room for dispute in an arbitration in which the position taken in the name of the union is the same as the position set out in the second paragraph of Abitibi's letter.

7. In short, with the possible exception of losses resulting from the July, 1982, layoffs, it is the union, and not the employer, that will be liable for any damages to which any of the complain­ants can show they are entitled for layoff out of seniority. Whatever value an arbitration between the employer and the complainants acting in the name of the union might have in assessing whether Abitibi should pay damages to Podlewski in respect of the July, 1982 layoffs, that procedure could not be expected to fairly assess the contingencies which affect an assess­ment of the union's liability to the complainants for damages in respect of any of the other lay­offs. For all these reasons, we doubt whether any direction to proceed to arbitration should form part of the remedy in the circumstances of this case, and we are certain it should not be the means by which the union's liability for damages is ascertained.

8. Accepting at face value the union's claim that its object in deciding whether to support the complainants' position was to act in a manner consistent with the language of the collective agreement and the parties' past practice, one way to determine the appropriate remedy for the union's breach might involve a determination by this Board of the meaning of the collective agreement. This could not and would not be done without first hearing any evidence or argu­ment which any of the parties wish to add to what we have already heard. If we were to find in favour of the complainants' interpretation, we would then go on to assess the damages payable by the union with respect to layoffs after July, 1982, and to determine whether either the union or the employer is responsible for any loss in respect of the July, 1982 layoffs.

9. As the parties' arguments had not addressed the possible alternatives to a referral to arbitration, the initial decision went on to request their submissions on that matter in writing. The written submissions on behalf of the complainant employees and intervener employer supported he approach described in paragraph 83 of the initial decision. The respondents, however, opposed hat procedure on several grounds. The first was that it would be unfair for this panel to hear evidence with respect to the meaning of the collective agreement because:

The evidence that will be tendered, might very well be tendered by some of the same witnesses who have already adduced evidence before this tribunal.

The tribunal has expressed some comments either directly or indirectly as to the motives and relationships that the tribunal has interpreted as affecting the relationships between the Parties. By implication, this may be interpreted by the Parties as reflecting upon credibility. Having done so, it is our submission that it would be unfair to the Parties to have this Board now deter­mine the issue on the merits.

This submission is without merit. The Board quite regularly bifurcates its hearings with respect to l he issues in proceedings before it. The most frequent bifurcation involves hearing only evidence with respect to liability to pay compensation for any losses suffered by a complainant, while defer­ing the hearing of evidence with respect to the quantum of the complainants' loss and retaining jurisdiction to do so later should that be necessary. When the Board does have to hear evidence with respect to quantum, the witnesses involved in giving that evidence are often the same wit­nesses who have given evidence with respect to the liability issue, and the Board's earlier observa­tions with respect to their credibility are no less relevant when assessing the credibility of their evi­dence with respect to quantum than they would have been had evidence with respect to both liability and quantum been heard together in a single hearing. As it could hardly be suggested that the Board would be acting unfairly if a single panel heard all of the evidence with respect to all of the issues raised in proceedings before it in a single hearing, I am unable to see how a single pan­el's conducting the second of two hearings on suitably bifurcated issues can be unfair.

5. Counsel for the respondents also observed, as did the initial decision, that the Board's decision in Massey Ferguson Industries Limited, [1977] OLRB Rep. April 216, stated that referral to arbitration was the approach the Board intended to take thereafter, and that the Board had taken that approach in most subsequent cases. He then made this submission:

The events which gave rise to this complaint occurred in 1982 and thereafter. In fact, the cir­cumstances in the Union have changed considerably in the past three years. As the events would disclose, Mr. Ron Balina is no longer the President of the Union. Making note of the Board's comments concerning the "ill will" that Balina had towards Podlewski, one could conclude that that "ill will" has now been removed. In view of the Board's policy and the change in circum­stances that now exist, we would urge upon the Board to make a decision to direct that the Par­ties proceed to Arbitration before a tribunal constituted pursuant to the provisions of the Col­lective Agreement.

Counsel's submissions did not address the distinctions which the initial decision drew between the peculiar circumstances of this case and the circumstances which existed in those cases in which the Board did grant a direction that the complainants' grievance be taken to arbitration. What counsel seems particularly to have overlooked in his submissions is that a trade union directed to take a complainant's grievance to arbitration is ordinarily obliged to support the complainant's position at arbitration. Indeed, the usual order directs that the trade union retain counsel satisfactory to the grievor to present the grievor's case at arbitration. The role at arbitration of counsel so retained was described in paragraph 8 of the Board's decision in Central Stampings Limited, [1984] OLRB Rep. Oct. 1383:

The provision in the Board's original decision for the selection of counsel on a joint basis clearly contemplated that counsel would pursue without distraction the interests of the complainant with respect to the handling of his grievance. This became necessary because the Board's apportionment of liability created the unusual situation of the trade union having an interest diametrically opposite to the member on whose behalf it had been directed to advance the grievance. To eliminate even the perception that the trade union might, in light of this con­flict, not be doing its utmost for the grievor at arbitration, the grievor was given the right to select an advocate in whom he had confidence. Because the trade union continued to be respon­sible for the legal fees incurred in presenting the arbitration, however (as it would have been had it not "arbitrarily" withdrawn the grievance in the first place)~ the Board gave the trade union the right to approve the complainant's selection of counsel as well. Counsel is not, how­ever, meant to be placed thereby in a position where he serves two masters - that would resur­rect precisely the kind of conflict situation that the choice-of-counsel provision was meant to eliminate. Rather, the counsel so selected is expected to all at all times in the interest of the grieving employee,

In other words, the usual order gives a successful complainant the right to assert his or her own position on the subject matter of the grievance at arbitration in the name of the union at the union's expense. As counsel retained to present that position would be acting in the name of the union at arbitration, it is difficult to see how any one else purporting to speak for the union could have standing in the arbitration proceedings to take any position inconsistent with that asserted by that counsel. As was observed in the initial decision, this is not an unreasonable arrangement for the resolution of the merits of the underlying representational question in respect of which the union has been found to acted contrary to section 68, if that underlying question is essentially a dis­pute between the employer and the complainant/grievor. Here, however, the underlying represent­ational question was a dispute over the meaning of the collective agreement between the complainants and the union official who was in de facto control of all the mechanisms by which that dispute might have been resolved. The employer appeared to favour the complainants' interpretation, but had been prepared to abide by the union official's request that his interpretation be followed because he had ostensible authority to speak for the union. The observation of the initial decision was that a referral to arbitration in which the employer's interpretation and that of the complain­ants might be the only positions which could be advanced would not, from the union's perspective, be a fair way to determine the underlying question and assess damages which would ultimately be borne either in whole or in large part by the union. The submissions of counsel for the union did not alleviate my own concern in that regard.

6. Finally, counsel for the union made the following submissions:

If in fact the Board is considering a remedy that is entirely an alternative to any referral to arbi­tration, then we would direct the Board to recall the real issue that existed in the grievances that were in fact filed. The issue was, and appears to remain, as to whether mill seniority or depart­mental seniority, is paramount when a layoff occurs.

Is this an issue that should be settled by a Board of Arbitration? Or by a Labour Relations Board? In fact, is this not an issue that should be determined by the Parties through negotia­tions? If it is to be determined through negotiations, should not the membership of the whole Local determine the position they desire to have their Union take?

The alternative to arbitration of a number of grievances would appear to be a Direction to the Parties to direct their minds to the wording in the Collective Agreement. We suggest that the Board consider directing ihe Union to hold a vote by secret ballot to determine what position the Union should take on the matter of mill seniority versus department seniority, and to be guided by the results of that referendum in determining the course that it will follow in the next round of negotiations.

I agree with counsel that the issue at the time of the violations was "whether mill seniority or departmental seniority is paramount when a layoff occurs", having regard to the provisions of the collective agreement and the past practice in the applying that collective agreement at the Mission Mill as of the time the Act was breached. That is the way the complainants defined the issue at that time, and it is also the way the then president of the local defined the issue. Significantly, the issue was never defined as "whether mill seniority or departmental seniority ought to be paramount hen a layoff occurs", which is, in essence, the question counsel suggests be put to a vote of the Local union s membership as a remedy for the respondents' breach of the Act. Both sides in the debate over the meaning of the collective agreement and the nature and consequences of past practice in the mill at all material times insisted that the existing rule, whatever it was, could not be altered except through collective bargaining, and that the union could not seek a different rule in collective bargaining without the express authority of a resolution of the membership. Each side maintained that the other's position could not be advanced in the union's name without such a reso­lution of the membership, and each side took comfort in the fact that the other had not sought such a resolution. Each side recognized the disadvantage it would have if it was seen as advocating a change in the accrued rights and privileges attaching to each form of seniority. As a practical matter, each side chose to focus on what the rule then was and avoid debate over what it ought to be. In effect, the debate was over the proper outcome of an adjudication of the meaning of the existing collective agreement, not over the more complex question of the balance which ought to be struck between competing interests in determining what provisions ought to be sought in collec­tive bargaining.

7. As a result, the remedial problem was similar to that encountered in cases in which the respondent trade union maintains that a complainant's grievance ought not to have been taken to arbitration because the grievance lacked merit. To paraphrase what was said at paragraph 78 of the initial decision, where the likely result of an assessment of the complainant's rights under the col­lective agreement is the critical contingency in an assessment of the loss the complainant had suf­fered as a result of the union's having made its decision in an improper manner, there is an obvious logic to assessing that contingency by actually adjudicating the complainant's rights under the col­lective agreement. A vote of the membership does not seem an appropriate forum for such an adjudication, having regard to the conflict of interest created by the fact that the union's exposure to liability would hinge on its membership's decision. The fact that Mr. Balina is no longer the President of the local makes it no less difficult to imagine that a decision by the membership about the meaning of the collective agreement would not be influenced by the fact that acceptance of the complainants' interpretation might result in depletion of union funds to pay damages to the com­plainants, whereas a contrary decision would not.

8. In the result, having considered the submissions of the parties, each of the members of this panel concluded that the approach suggested in paragraph 83 of the initial decision should be followed in this case, giving the complainants, the trade union and the employer all the opportu­nity to participate in an adjudication of the meaning of the collective agreement for the limited purpose of assessing the remedy to which the complainants were entitled with respect to the trade union's of section 68 of the Labour Relations Act. The parties were so advised by decision dated August 29, 1985, which directed that the matter be relisted for hearing at the earliest practicable date. Having regard to this panel's availability and the desires of the parties for accommodation of the availability of their counsel, the earliest practicable dates were April 3 and 4,1986. On those dates the panel heard such evidence and argument as the parties wished to add to what we had already heard with respect to the interpretation of the collective agreement and any other matter relevant to outstanding remedial issues.

9. Before turning to the results of the April hearings, I think it important to note that my decision to consider the meaning of the collective agreement in order to devise an appropriate rem­edy in this case does not signal abandonment of the general approach to section 68 complaints con­templated by the decision in Massey Ferguson Industries Limited, supra. In that decision, the Board settled two policies with respect to its adjudication of complaints which allege that the res­pondent trade union breached section 68 of the Act by or in the course of deciding not to take the complainant's grievance to arbitration. The first had to do with the way the Board would exercise its remedial authority if such an allegation were established and it appeared to the Board that the appropriate remedy should include the relief, if any, which would have been obtained for the com­plainant if the union had taken the grievance to arbitration. The Board recognized that it could give the complainant that remedy by adjudicating the merits of the grievance itself and using its authority under section 89 to grant any relief (including reinstatement and compensation) which it concluded would have been granted by an arbitrator or arbitration board. Alternatively, it could direct that the grievance be referred to arbitration, with directions that objection to arbitrability not be raised by the employer on the basis of the union's earlier delay, abandonment or withdrawal of the grievance and, in appropriate circumstances, that the union retain independent counsel to represent the grievor's interests in the union's name at arbitration. In response to procedural uncertainties created by the possibility that the Board would take the first mentioned approach at the conclusion of a hearing, the Board in Massey Ferguson announced it would abandon that possi­bility, so that trade union and employer parties to complaints of this sort could be assured that they need not deal with the merits of the grievance in the hearing of the complaint except to the extent that the merits of the grievance are relevant to the question whether the union has breached sec­tion 68. That assurance was the second of the two policies established in the Massey Ferguson deci­sion: that evidence going to the merits of the grievance would be considered to determine whether there has been a breach of section 68 but not to determine what remedy would actually have been obtained had the grievance been taken to arbitration.

10. The decision in Massey Ferguson suggested that there were no circumstances in which

the Board would itself inquire into the merits of a grievance for the purpose of devising a remedy for the union's breach of section 68. The circumstances of this case led me to conclude that, for that purpose, we should inquire into the merits of the grievance or, more precisely, the correctness of the complainant's interpretation of the collective agreement (as opposed to the likelihood of success at arbitration, which involved the additional question whether the employer would advo­cate any contrary interpretation). The unique features of this case were not present in the Massey Ferguson case, nor were they present in any of the cases to which the Board referred in that deci­sion. It may be that future cases will disclose other circumstances in which the referral to arbitra­tion remedy discussed in Massey Ferguson would be inappropriate. That is not to say that there has been anything inappropriate about the use of that remedy in past cases, and my decision not to make use of it in the circumstances of this case is not a rejection of its utility in other circum­stances.

11. It is apparent that the Board cannot now say that it will never consider the actual merits of the grievance in fashioning a remedy for a breach of section 68 which somehow involves a union's failure to take the grievance to arbitration. That does not mean, however, that union and employer parties to such complaints must now lead evidence which is relevant only to the merits of the grievance, and not to the existence of a breach of section 68, before a breach has been demonstrated. For reasons outlined in Holiday Juice Ltd., [19841 OLRB Rep. Oct. 1449, the Board's understanding practice with respect to claims for compensation has been to first determine whether there is liability to pay compensation, leaving the quantum of compensation to be determined only after there has been a finding of liability. For many of the same reasons, it should continue to be the Board's ordinary practice that any question of the appropriate remedial response to the griev­ance itself will be addressed, whether at arbitration or (where referral to arbitration is inappropriate by the Board, only if and after there has been a finding that section 68 has been breached. The reasons for bifurcating the issues in that manner remain as cogent, both generally and in circum­stances like those presented by the case before us, as they were at the time the Massey Ferguson decision was written.

III

12. The relevant provisions of the then current collective agreement, and the complainants' interpretation of those provisions, were set out in paragraphs 7 to 10 of the initial decision. For convenience, those paragraphs are reproduced here:

13. The millwrights and pipefitters in the mechanical department repair and maintain, and occa­sionally construct additions to, the Mill's equipment and mechanical systems. In the fall of 1982 there were approximately eight journeymen pipefitters and twenty journeymen millwrights in the mechanical department. Some, like the grievors, had been journeymen tradesmen when they began work at the Mill. Others became journeymen after becoming employed at the Mill, either by serving a four-year apprenticeship program under Abitibi's Trades Apprentice Plan, or by establishing proficiency in the trade to the satisfaction of the company's evaluation commit­tee under the Tradesman Promotion Plan after serving a minimum of seven years as a helper in that trade and completing a correspondence course equivalent to that taken by apprentices. Both of these plans have formed part of the collective agreements between Abitibi and the Union for many years. Article 34.03 of the current collective agreement provides:

34.03 When a man transfers from some other job to the status of an apprentice in one of the mechanical trades, he shall maintain his seniority in the job from which he is transferred for a period of six (6) months. Following such probationary period, his seniority shall develop exclusively within the mechanical group to which he transfer­red. If, when the period of apprenticeship (four (4) years) is served there is a vacancy for a journeyman in the trade for which the apprentice is qualified, he will be retained and will be granted two (2) years' seniority as a journeyman and will become eligible for promotion in accordance with the Tradesmen Promotion Plan.

The language of Article 34.03 appears again in paragraph 11 of the Trades Apprentice Plan, which is Appendix "I" to the collective agreement.

8. Article 7 of the collective agreement reads:

9. PROMOTIONS AND LAY-OFFS

7.01 When vacancies occur in a department then the Company shall post on bulletin boards throughout the mill a notice concerning the bottom job in the department affected. Such notice shall indicate the qualifications essential to promotion within that department. Such posting shall be for a period of ten (10) working days and the Company shall have the right to make temporary appointment without penalty. In all cases of promotion the Company will give consideration to seniority, ability and qualifi­cations. When the last two factors are relatively equal, seniority will govern.

7.02 In cases of promotions, where the man to be promoted is not the senior man in the department concerned, the Company will present the alternative name to the Union, who will have the opportunity to discuss with the Company the qualifications of the senior man. The Company shall take such presentation into consideration in making its decision which decision may be subject to the grievance procedure outlined in Article 30 of this Agreement.

7.03 The Company will train employees to minimize the hiring of skilled men from outside the mill.

7.04 When laying off help Union men shall be retained in preference to those not members, among equally efficient employees, the older in point of service being given preference of employment (the same principles to govern as in the case of promo­tions).

7.05 In cases of lay-offs, plant wide seniority with due regard to jurisdiction of each of the signatory unions shall apply. In making transfers under this rule it is understood and agreed that in moving between departments, the senior man must have the neces­sary qualifications to enter the department and shall have access only to the bottom job in the line of progression in the department to which he is being transferred. If the number of senior employees involved in a permanent lay-off exceeds the number of junior employees holding bottom jobs in the lines of progression, the Company, if requested by the Union, will locate other job openings in jobs held by junior employ­ees above the bottom jobs so as to assure continued employment for senior employ­ees. Training will be given if necessary to the senior employees.

7.06 When employees are laid off they shall be recalled in reverse order of their lay­off.

Substantially similar provisions have formed part of Abitibi's collective agreements with the Union and its predecessor, Local 132 of the International Brotherhood of Pulp, Sulfite and Paper Mill Workers, for nearly thirty years. Some language has remained unchanged despite its becoming outdated. The reference in Article 7.05 to "each of the signatory unions", for exam­ple, make less sense now than it did in the 1950's and 1960's, when agreements between Abitibi and this Union's predecessor were also executed by four other (craft) unions. It is common ground that the past practice of the parties to it is an important consideration in the interpreta­tion of this collective agreement.

9. The layoffs which trouble the complainants resulted from production shut-downs of varying durations. Prior to 1982, production shut-downs had generally not resulted in layoffs of journey­men in the mechanical department, as maintenance work ordinarily continued unabated during a production shut-down. The production shut-downs in and after July 1982, were different; they

were more frequent, maintenance work was also reduced and journeymen tradesmen were laid off. When Abitibi followed mill seniority rather than departmental seniority in selecting jour­neymen for layoff, some tradesmen found themselves without work while men they had origi­nally trained as apprentices or helpers remained at work.

10. Having regard to their understanding of past practice and to the language of Article 7, Arti­cle 34.03 and paragraph 11 of the Trades Apprentice Plan, the complainants believe the collec­tive agreement provides that promotion to and layoff from any particular job are both governed by departmental seniority. Article 7.02 governs promotions, and the complainants say that the words "senior man in the department concerned" in that Article refer to the man with the most departmental seniority. The complainants emphasize the words in brackets at the end of Article 7.04, which deals with layoffs. They say those words mean that the seniority which governs the initial selection for layoff is the same seniority which governs promotion: departmental seniori­ty. As a result, they say that selection of persons for layoff from their own departments is to be made on the basis of departmental seniority. They read Article 7.05 as giving effect to mill seniority only in the exercise of bumping rights - the right of an employee targeted for layoff from a job in one department to transfer into a job for which he is qualified in another depart­ment, a right the transferring employee can exercise only if he is senior to the employee per­forming the target job. Thus, in the complainants' view, if a layoff requires a reduction in the number of journeymen millwrights, it would be the millwrights with the least departmental seniority who would lose millwrights' work during the layoff period. Those redundant mill­wrights could then exercise their mill seniority to bump into any jobs remaining in other depart­ments for which they are qualified.

11. During hearings with respect to liability, complainant John Polhill gave evidence of events in 1969 which led him to believe that seniority as a journeyman in the mechanical department would prevail over mill seniority in the selection of journeymen to be laid off from the mechanical department. His evidence was recited at paragraph 11 of the initial decision:

II. John PoIhill says his belief in this interpretation is reinforced by certain events which occur­red in 1969. At that time Abitibi planned to lay off a journeymen pipefitter. The choice was between PoIhill and Victor Wazinski, who had three weeks' more mill seniority than PoIhill. Unlike Polbill, who had been a journeyman when he began working at the mill, Wazinski had begun work at the mill as a second year apprentice and did not qualify as a journeyman until three years after he was hired. At the time of the proposed 1969 layoff, Poihill was told that he would be retained in preference to Wazinski. Polbili recalls that this advice came in the form of a letter from a Mr. Neeley, a company official, who quoted the language of what is now Article 34.03 and explained that Wazinski's departmental seniority was less than that of PoIhill because at the end of his first three years of employment he had been credited with only two years seniority pursuant to that Article. Wazinski received notice of layoff. As it happens, that layoff was cancelled before it occurred. This was the only example any of the witnesses offered of a layoff of journeymen effected or announced prior to July, 1982, in which the choice between mill or departmental seniority as the basis for selection would have affected the identity of the person or persons selected for layoff.

As the initial decision also reflects, the complainants testified that these events had been referred to by Mr. Wazinski and Mr. Nieckarz (who had been President of the Local in 1969) during at least one membership meeting at which the complainants attempted to bring up their grievances (see paragraph 19 of the initial decision). The respondents called Nieckarz as a witness in the April hearings. He testified that in 1969 journeymen in the mechanical department were classified as "A", "B" or "C", that Polhill had been an "A" and Wazinski had been a "C" at the time of the ii icident referred to by PoIhill in his testimony, and that this might explain why Wazinski would have been selected for layoff before Polhill. Cross-examination of Nieckarz established that these alphabetical classifications had to do with the nature of the work which the journeyman was quali­fied and entitled to perform, and that Nieckarz had no idea whether the "A" classification was a requirement for the work which would have been done after the proposed layoff of 1969. Further­more, he conceded that this classification distinction had not been in his mind when he spoke out at the membership meeting in 1982. It was apparent from his answers on cross-examination that his more recent focus on this distinction resulted from a concern which he had since formed about the implications which the collective agreement interpretation advanced by the complainants would have with respect to layoffs in other departments of the mill. I need not assess the effect this con­cern may have had on his evidence before us with respect to the events of 1969, since that evidence is not inconsistent with the evidence of Polhill that the reason given to him by the company official for its layoff decision had to do with the application of what is now Article 34.03 and not any dif­ference between his classification and that of Wazinski. Although the 1969 proposed layoff is the only evidence of past practice which focuses particularly on the mechanical department, other evi­dence with respect to past practice is consistent in pointing to departmental seniority as the basis on which workers have been selected for layoff out of their regular job and department.

14. The initial decision recorded the evidence of the then president of Local 132 with respect to past practice in the application of departmental and mill seniority in layoffs:

15. Balina acknowledged it had always been his view that mill seniority governed in the case of layoffs. He said this had been the policy of the Canadian Paperworkers Union for fifty years. It was not clear how he would know that, or where this union policy is to be found. Balina claimed that past practice favoured his interpretation of the collective agreement. In that connection, as we have noted, he had not made any investigation to determine what practice had been followed in the 1969 layoffs referred to in Mr. Polbill's evidence and, we find, by Mr. Wazinski at mem­bership meetings. When the hearing of this complaint adjourned in February, 1984, we invited Mr. Balina to offer some examples of the past practice to which he had referred in evidence. When the hearings resumed four months later, Mr. Balina offered several examples of layoffs in which employees had remained at work as a result of the exercise of mill seniority. However, as he acknowledged in cross-examination, every one of the examples he offered involved a worker first being displaced from his own job on the basis of his departmental seniority, then exercising his mill seniority to bump into a job in another department. He acknowledged that in each example mill seniority had only come into play after the worker concerned had been displaced from his own department. Still, Mr. Balina insisted that past practice supported the procedure adopted by the company in the series of layoffs which began in July, 1982, when mill seniority, and not seniority within the department, had been the basis for selection of workers to be dis­placed from their own department. Balina was evasive when asked whether he had taken Arti­cle 34.03 and paragraph 11 of the Trade Apprentice Plan into account in forming his own opin­ion about the meaning of the collective agreement. Balina acknowledged that the seniority referred to in those provisions of the collective agreement must be departmental seniority and not mill seniority. He acknowledged also that departmental seniority had significance in the case of promotions.

Dick Facca, the current President of Local 132, was asked in chief whether he disagreed with the evidence given by Balina. He said that he did not, but added that Balina's evidence did not go far enough. He proceeded to offer a convoluted interpretation of the relevant provisions of the collec­tive agreement and its application to what he described as a "major mill layoff', which he defined as one in which no employees are retained in any department except the mechanical department. Then, he said, the employees with the most mill seniority who have the qualifications necessary to perform the remaining work in the mechanical department must be retained in preference to those with greater departmental seniority. Indeed, he offered the interpretation that an employee could not be selected for layoff on the basis of departmental seniority unless there was a job in another department into which he could bump on the basis of his mill seniority. These interpretations were based solely on his reading the language of the collective agreement and his understanding of union policy. Mr. Facca did not offer any concrete examples of past practice in the application of these provisions and, particularly, no example of an occasion on which the collective agreement had been applied in a manner both consistent with his interpretation and inconsistent with that of the complainants and the employer.

15. Orest Halushak has been the Industrial Relations Superintendent of the Mission Mill since 1970. Prior to that he was Chief Timekeeper, a position in which he reported to the then Industrial Relations Superintendent. Called as a witness by Abitibi, Halushak could not recall there ever having been a "complete shutdown" of the Mill prior to June 1982, when such a shut­down was first discussed with the trade union. Previous experience with the application of the lay­off provisions in the Mill had been in connection with production cutbacks in which, for example, the mill would switch from a seven-day-per-week continuous operation to a five-day-per-week operation. In those circumstances about forty-five people would ordinarily be laid off. They would e selected for layoff out of their departments on the basis of their departmental seniority. The most junior person would be eliminated. That person would then have the opportunity to bump into a "bottom job" in another department on the basis of his mill seniority if he had the qualifications to perform that job. If the production cutback was indefinite in duration, the layoff would be considered "permanent", and jobs above the "bottom jobs" would also be exposed to bumping on he basis of mill seniority. Based on his experience, Mr. Halushak's understanding was that mill seniority could not be used by an employee to bump back into the department from which the employee had originally been displaced as a result of the layoff.

16. With respect to the shutdown discussed with the union in June 1982, Halushak testified that Balina had had a private discussion with him about that shutdown in early June. Halushak says Balina told him he wanted to ensure that the people with the most mill seniority were retained uring the layoff. At that time Halushak understood that this could involve a departure from past practice, but he did not think it would make much practical difference to the company whether it allowed past practice or adopted the approach advocated by Balina. The company had had "poor elations" and "a bad year" in its dealings with Local 132. Halushak considered Balina to be the authorized representative of the members of the local, and was disposed to accommodate what he assumed to be their wishes in an effort to improve relations with the union. Without articulating all these reasons for his agreement, Halushak had told Balina that the company would take the requested approach. The company's willingness to do so was later confirmed in a union-manage­ment meeting. Halushak's evidence that Balina's request resulted in the application of mill senior­ity in the first of the several layoffs in question is uncontradicted.

17. The language of Article 7 and its application to a "complete shutdown" in this mill have not been the subject of any previous dispute between the parties to the relevant collective agreem­ent. The same language has been used in collective agreements between Abitibi-Price Inc. and their locals of the Canadian Paperworkers Union with respect to other mills, however. The appli­cation of Article 7 to layoffs from the mechanical department in total or complete shutdowns of the Iroquois Falls mill in 1982 was addressed in an arbitration proceeding between Abitibi-Price Inc. and Local 90 of the CPU by an arbitration Board chaired by Professor McLaren. The evidence with respect to past practice and the arguments with respect to the application of the collective agreement recited in the majority award ("the McLaren award") were substantially the same in t at case as in this one:

This Collective Agreement is unusual in that it contains no managements' rights clause. It is also unusual in that much of the parties' understanding and practise in dealing with promotions and lay-offs is based upon past practise built up over many years. Frequently, throughout the Collec­tive Agreement one will find only partial reference to the parties' understanding and practise as will become apparent upon reading this award.

The President of the Union, Mr. Beagan, testifies that it has been the practise, aside from the complete shutdowns under consideration herein, that when there was a decrease in production by reducing the scheduled work days, employees would be moved out of departments on the principle of the last man in the department is the first man out of the department. This is described as departmental seniority, but no clause of the Collective Agreement precisely sets out the practise. An employee who has been moved out of the department may then use mill seniority to bump a junior employee holding bottom jobs in the line of progression within another department. Again, this principle is not precisely found in the Collective Agreement. Article 7.05 is built upon the foregoing principles in that it indicates that there is to be "plant­wide seniority". The Article goes on to state that transfers, which presumes an employee has been bumped out of the department, will have access only to bottom jobs in the line of progres­sion in another department.

In most schedule reductions, the system has worked to give preference to the employees with the greatest plant-wide seniority. It is suggested that it has worked in most scheduled reductions because the Union takes the position that the clauses do not work properly when there is a total shutdown and the Company takes the position that a total shutdown is no different than a reduc­tion in scheduled work days. Testimony reveals that in the past the Collective Agreement has worked because the mill was operating. Article 7.05 contemplates the senior employee moving into another department and having access only to the bottom job in the line of progression in the new department. Article 7.05 then has a super added provision that if that process has not resulted in the most senior employees remaining at work, then "in a permanent lay-off" the Company "will locate other job openings in jobs held by junior employees above the bottom jobs so as to assure continued employment for senior employees".

In a situation where the mill is shutdown, Article 7.05 can operate, but it is to no effect because there are neither bottom jobs or "junior employees above bottom jobs" for which the more senior employees might be able to bump. The problem arises in this case because during the shutdown some of the tradesmen in the mechanical department continued to work. The effect of distinguishing between departmental and mill seniority for these employees was that people with more departmental seniority were able to remain in the mechanical department working while those with less departmental seniority but more plant seniority were bumped out of the depart­ment based on the last in first out principle. Once they had been bumped out of the department, there would be no other jobs than a handful of new security jobs to cover increased patrols dur­ing the shutdown. There were no positions into which these mechanical crew employees might bump. In the words of Mr. Beagan, they were "sitting on the bench while more junior employ­ees in total mill seniority were working". This is the cause of the Grievance and is a situation which has not arisen before because there has never been a mill shutdown.

What is at issue in this arbitration is whether the past practise ought to be applied on the theory that a total shutdown is merely a variation of a reduction in the work schedule, as the Company argues, or, whether a new understanding ought to arise. It appears from an examination of Arti­cle 7 and other provisions of the Collective Agreement, that the parties have added clauses to this Agreement as necessary to deal with specific situations as they have arisen over the years. The principle lying behind Article 7.05 is to "assure continued employment for senior employ­ees". The Union argues that if that is the principle, then under the circumstances of a plant shutdown, the most senior employees can use their mill seniority within the department to bump the more senior employees in terms of departmental service, but more junior in terms of plant-wide seniority.

18. The McLaren award held that the union's position could only prevail if support for it could be found in the language of the collective agreement. It concluded that there was no such support:

The Union cannot ask a Board of Arbitration to create a new provision in a Collective Agree­ment. Such a provision must be determined through the negotiating and bargaining process. Both parties are, therefore, forced to turn to the Collective Agreement to find support for their position while recognizing that there is a certain degree of artificiality to that process because the Collective Agreement has not been constructed to take account of the situation. It is the Board's view that the parties must ultimately bargain the resolution of the problem.

What remains for this Board to do is examine the language of Article 7 to determine if the prin­ciple of assuming continued employment for the most senior employees can be found to permit the mechanical crews to assert mill seniority over departmental seniority. While this Board rec­ognizes the importance of the seniority principle and the need to protect it; the Board can only do so based upon the language in the Collective Agreement.

The first answer to the Union Grievance is that a total plant shutdown is no different than a reduction in scheduled work days. The reduction which occurs is from operating a given number of days to not operating at all. It is merely a more drastic form of reduction in work days. There is, therefore, no reason based on that fact to operate the seniority provisions and the bumping rights in any fashion which is different from how it has been done in the past when the reduction in scheduled work days has only been of a less drastic nature.

The language in the Collective Agreement supports the process of promotion within a depart­ment on the basis of departmental seniority in Clause 7.02. The process of laying off employees is to be on the basis of the last in first out principle in each department as is suggested by the parenthetical phrase at the close of Article 7.04. Then the practise of the most junior employee, having been bumped out of the department using his plant-wide seniority to find bottom jobs in the line of progression of another department, is set out in 7.05. The desire of the Union to go through that practise and then if that has not resulted in the most senior employee remaining at work to permit the employee to return to his department and exercise mill seniority against employees in his own department who have greater departmental seniority can only be asserted through the reference to plant-wide seniority in the opening sentence of Clause 7.05. That lan­guage cannot be read in isolation from all of the other provisions of the Collective Agreement and is a statement which is made in connection with the bumping rights associated with an employee who has been bumped out of his department and is now looking for work elsewhere in the mill. There is, therefore, no language to support the Union proposition as argued before the Board. Nevertheless, the Board finds it an anomalous result when the clear intention of the par­ties in drafting all of Article 7 was, as is indicated in 7.05, "to assure continued employment for senior employees". The Board is, however, without jurisdiction to implement that principle without more language which would provide the bedrock from which to assert that the members of the mechanical department might use their mill seniority against those employees with greater departmental seniority. For the foregoing reasons, this aspect of the Union's Policy Grievance must be dismissed and it is so ordered by this Board.

19. The parties before us all recognized that we would not be bound by the McLaren award in coming to our conclusions with respect to the issues before us. The complainants and the employer both argued that we should accept the award as persuasive and adopt the analysis in it. The respondents argued that the McLaren award was distinguishable because there is no reference in it to Article 34.03 and because, in counsel's submission, the majority must have made some other findings of fact which are not reflected in the McLaren award itself. I do not see in the award any suggestion that there are facts the majority found critical to the result which were not recited by them in the portions of the award I have quoted here. It is true that the award makes no ref­erence to Article 34.03 nor, indeed, to any other article of the collective agreement between those parties, in dealing with the meaning of Article 7. I am unable to see how that usefully distinguishes the case from the one before us, however, since reference to that article would only add weight to the argument that departmental seniority has some part to play in the interpretation and appli­cation of the collective agreement and, particularly, that departmental seniority has some role to play in determining eligibility for promotion and, therefore, layoff, at least within the mechanical department.

20. The word "seniority" appears in various contexts in the collective agreement between Abitibi-Price Inc. and the respondents. The phrase 'plant-wide seniority" appears only in Article 7 05. Article 7.01 refers to "seniority", Article 7.02 refers to "the senior man in the department concerned" and Article 7.04 refers to "the older [employee] in the point of service." Article 34.03 speaks of "seniority" as developing exclusively within the mechanical group and to "seniority as journeyman" in the context of eligibility for promotion. If the ambiguity in the meaning or meanings of the word "seniority" in these various provisions is not clear on the face of the collective agreement, it certainly becomes clear from the evidence of the parties' past practice. The evidence discloses that, as of June 1982, the past practice of the parties to the collective agreement applic­able to the Mission Mill when applying its provisions with respect to layoffs was the same in all material respects as the past practice dealt with in the McLaren award. I am satisfied that the McLaren award came to the correct conclusion about the meaning and proper application of the language of Article 7 in the case of a "total shutdown" or "major mill layoff." The collective agreement with which we are concerned does not make special provision for those circumstances. Article 7.05 enlarges bumping rights in the case of a "permanent" layoff, but the relevant collec­tive agreement provisions do not otherwise provide different rules for different sorts of layoffs. With respect to the layoffs in question here, I conclude that the provisions of the relevant collec­tive agreement applied in a manner consistent with past practice required that journeymen in the mechanical department be selected for layoff on the basis of their seniority as journeymen within the mechanical department and not on the basis of their mill seniority.

IV

21. Material filed with us by the parties indicates that there were five layoffs between July 1982 and September 1983 during which one or more of the complainants was not scheduled for work but would have been scheduled for work if selection for layoff out of the mechanical department had been based on seniority as a journeyman within the mechanical department rather than on mill seniority. Those layoffs occurred in the weeks of July 25, 1982 and March 20, April 17, July 24 and September 18, 1983.

22. Having regard to the observations in paragraphs 80 and 82 of the initial decision, evi­dence led during the April hearings in this matter addressed the question whether the company's application of mill seniority in selecting journeymen for layoff during the week of July 25, 1982 was the result of a request from Mr. Balina or anyone else on behalf of the respondents. That evidence clearly established that it was, in fact, the sole result of a request made by Balina in his capacity as president of the local union. Lecuyer and Podlewski did not work during that week, but would have worked had layoffs from the mechanical department been made on the basis of seniority as a journeyman in that department. Acceptance at arbitration of the complainants' interpretation of the collective agreement would not have resulted in recovery of their lost wages, however, since Abitibi could have argued successfully that the union was estopped from seeking to enforce that interpretation in respect of that particular layoff because in effecting that layoff it had acted on Balina's June 1982 request, made with ostensible authority on the union's behalf, that upcoming layoffs be so conducted as to ensure that employees with the most mill seniority remained employed.

23. The complainants' argument with respect to their losses arising out of the July 1982 lay­offs proceeded on the assumption, which was not questioned by the union or the Board at the time, that the respondents would be liable to compensate them for those losses if the Board found Abitibi not liable because of a successful estoppel argument. On reflection, that does not seem cor­rect.

24. The earliest union behaviour with which the complainants took issue in this complaint was the union's failure to process grievances arising out of the July 1982 layoffs. Based on the facts as I now have found them, I conclude that those grievances would not have been successful if the respondents had processed them through to and including arbitration in a single-minded fashion, with all the resources at their command. That is because the employer could successfully have relied in its defence on Balina's June 1982 request that upcoming layoffs be so conducted as to ensure that the employees with the most mill seniority remained employed. None of the complain­ants would have recovered compensation. Their failure to do so would not have been the result of the behaviour about which they took issue in this complaint but, rather, the result of Balina's request to Halushak in June of 1982. It has not been alleged that, and the Board has not consid­ered whether, the making of that request constituted a violation of section 68 of the Labour Rela­tions Act. The behaviour with which this complaint has dealt is behaviour which occurred after the complainants first began filing grievances. The premise on which our remedial response is based is that honest consideration of those grievances would have led the union to conclude that the com­plainants' interpretation of the collective agreement was the correct one and, having regard to the union's internal rule about changes to the collective agreement, that that interpretation would have been advocated unless and until an appropriate resolution had been passed to support a changed approach or interpretation. Had the union asserted the correctness of the complainants' interpreta­tion after July 1982, Abitibi might well have conformed to that interpretation in subsequent layoffs and, in any event, could not thereafter have relied on estoppel in a grievance over any subsequent layoff effected on the basis of mill seniority alone. As all of the behaviour found to violate section 68 occurred before the four other layoffs in respect of which damages are claimed, there is clearly a direct link between the complainants' losses, if any, in those layoffs and the breach which was the subject matter of the initial decision. The same cannot be said about the losses claimed with respect to the July 1982 layoffs. In the absence of a claim and a finding that Balina's June 1982 request to Halushak constituted a violation of section 68, we cannot see how the union could prop­erly be held liable to Lecuyer or Podlewski for the wages they would have earned in the week of July 25, 1982, had layoffs that week been conducted in accordance with past practice. As the diffi­culty I have identified was not addressed in argument, I will consider any written representations thereon which the parties may wish to submit, on a timetable similar to that set out in paragraph 84 of the initial decision.

25. Documentation filed by agreement of the parties indicates that complainant Lecuyer would have worked five days in each of the weeks of March 20, July 31 and September 18, 1983 had millwrights been selected for layoff on the basis of their seniority as journeymen in the mechanical department rather than mill seniority, and would have earned $589.60 in the week of March 20, 1983 and $648.40 in each of the weeks of July31 and September 18, 1983.

26. PoIhill would have been scheduled to work five days in each of the weeks of March 20 and April 17, 1983 and two days in the week of September 18, 1983 had the company selected pipefitters for layoff on the basis of their seniority as journeymen in the mechanical department rather than mill seniority. With respect to the weeks of March 20 and April 17, 1983, in each case Polhill elected after the week was over to have it treated as a week of paid vacation. He did this afterwards, rather than beforehand, so that he would be treated as available for work during those periods if the opportunity of additional work arose. Had he booked those weeks as vacation in advance (as he did with respect to some other layoff periods) he would not have been considered or additional work opportunities. As it happens, additional work opportunities did not arise dur­ing those two weeks. Having retroactively designated them as vacation weeks, Polhill received vacation pay for those pay periods in an amount equivalent to the wages he would have earned had been properly scheduled to work in those weeks.

27. The union argues that Polhill has suffered no financial loss for which it should be liable respect of those two weeks. The collective agreement provides that the taking of vacations is compulsory; they cannot be accumulated, but must be taken in the year when they are due. Had Polhill not designated these two weeks as vacation weeks, he would have been required to take a vacation in two other weeks during which he did work. In the result, the number of weeks in which e could earn wages was not adversely affected by the company's failure to schedule him for work those two particular weeks. Indeed, Polhill conceded in cross-examination that he had not suf­fered a loss of earnings. As he put it, he suffered a loss of holidays. One presumes he meant that he had lost some flexibility in the scheduling of his holidays, as well as some of the enjoyment he would have derived from those days away from work had he regarded them in advance as vacation days rather than as days on which he would hold himself ready to respond to any call-in. While Polhill testified in chief that he would not have designated those weeks as vacation weeks had he not been scheduled to work, the use which he would otherwise have made of those two weeks of vacation was not addressed in his evidence. Accordingly, there is very little to on in assigning any monetary value to the loss of flexibility in vacation scheduling. Certainly, I do not accept that two full weeks' wages is the measure of that loss. In the end, I do not propose to assign any monetary value to that loss for this reason: the initial decision of July 23, 1985, directed that the complain­ants prepare and deliver full particulars of their claim for financial loss by a specified date. Partic­ulars were delivered under cover of a letter dated August 28, 1985. Those particulars did not include a claim on Mr. Polhill's behalf with respect to either of these two weeks. The intention to assert such a claim apparently arose sometime thereafter, and notice that such a claim would be made was only given the day before the April 1986 hearings began. In these circumstances, I do not propose to make any monetary award with respect to this untimely and intangible claim.

28. In his evidence, Mr. Facca stated that there were employees with less mill seniority than Lecuyer and Polhill at work in departments other than the mechanical department during the weeks of March 20 and September 1, 1983. He suggested that those complainants could have miti­gated their losses with respect to those weeks had they elected to exercise mill seniority to bump into the jobs performed during those weeks by those other employees. Polhill denies that such opportunities were available either to him or Mr. Lecuyer, stating that the jobs available were not 'bottom jobs" within the meaning of Article 7.05. It is apparent that the layoffs on those occasions were not "permanent layoffs" within the meaning of article 7.05, and the respondents have not established that the work being performed by the persons whom the union claims could have been bumped by the complainants was "bottom job" work of a sort which gave rise to such bumping rights in the circumstances. The onus of proof with respect to an alleged failure to mitigate rests on the party who asserts that there has been such a failure. The respondents have not discharged that onus with respect to the remaining claim for Lecuyer with respect to the week of March 20, 1983 and the claims of Lecuyer and Polhill with respect to the week of September 18, 1983.

29. In the result, I find the respondents liable to pay compensation to Polhill for lost wages

in the amount of $259.36 with respect to the week of September 18, 1983 and to pay compensation to Lecuyer for lost wages in the amount of $1,886.40, representing $589.60 for the week of March 20, 1983 and $648.40 each for the weeks of July31 and September 18, 1983.

30. The complainants ask that they be awarded interest on lost wages for which they are found entitled to compensation. This is a proper component of compensation, for reasons given by the Board in Hallowell House Limited, [1980] OLRB Rep. Jan. 35. Beyond reference to that Board decision, no argument was addressed to the method of calculating interest on the amounts awarded. The method described in Hallowell House Limited, supra, was designed specifically to enable the calculation of interest on awards of compensation for a continuing loss of earnings over an extended period which ends with the order awarding such compensation and costs. The method­ology adopted was a "rough and ready" one meant to approximate calculation of interest on each week's loss from that week to the time the determination is made, so as to avoid the extreme detail which the latter form of calculation would otherwise require. Here we are dealing with a very small number of very discrete losses which occurred on the days some years ago when paycheques would otherwise have been received for the periods in question. Attempting to adapt the Hallowell meth­odology to this type of loss would be more complex than simply taking the more exact approach the Hallo well methodology was intended to approximate. By analogy with rules applicable to court proceedings in Ontario, interest should run from the day the loss is suffered or the day written notice of the substantive claim was given to the respondent, whichever is later, calculated at a pre­vailing interest rate determined with reference to the date proceedings commenced. Hallowell House adopted the "prime rate" as determined by the Bank of Canada for the month preceding month in which the complainant was filed as the relevant interest rate. On that approach, the appropriate interest rate in this case is 11% per annum. The complainants gave notice of their sub­stantive claim on March 14, 1983 (see paragraph 24 of the initial decision), which predates the losses for which compensation is granted here. Accordingly, the respondents shall pay interest on each week's loss, calculated from the pay day on which the lost wages would have been paid to the late of this decision. Taking that approach, it is unnecessary to divide any sum by two (see Practice Note 13, particularly paragraph 4.) In order to make a precise calculation of interest, we would need to know what was the pay day for the weeks of March 20, July 31 and September 18, 1983. 1 assume the parties can agree on those dates and make the necessary calculations; the Board retains jurisdiction to determine the precise amounts of interest hereby awarded if the parties cannot.

31. The final matter with which we must deal is the complainants' claim that an award of compensation should include reimbursement of their legal and other expenses preferable to partici­pation in the Board's hearings of April 3 and 4, 1986. This claim was first made in the complain­ants' counsel's August 13, 1985 response to the request for submissions contained in the initial decision. Counsel for the complainants wrote:

In the event the Board does decide to make a determination of the meaning of the Collective Agreement, the Complainants submit that it would be consistent with previous Board decisions that the Board order that the Complainants are free to be represented at such a continuation hearing by counsel of their choice and that the Respondents, Canadian Paperworkers Union, Local 132 and Canadian Paperworkers Union, be responsible for all legal costs thereby incurred by the Complainants including legal fees, subpoena costs, wages lost by the Complainants in attending hearings and any other expenses which reasonably flow in the same manner as if the grievances were being arbitrated.

The superficial attractiveness of this argument stems, in part, from its characterization of what the Board was then considering doing, and subsequently decided to do, as merely taking over a func­tion which might otherwise have been performed by a board of arbitration in circumstances other­wise completely analogous to those in which the Board would ordinarily direct that a union found in breach of section 68 process of the complainants’ grievance to arbitration and retained a coun­sel satisfactory to the complainant to present that grievance at arbitration at the union's expense. That characterization minimizes the very substantial differences between this case and those in which such remedial orders are granted. The Board has not here chosen to act as a mere substitute for a board of arbitration. What we have done is engage in a further hearing with respect to mat­ters of remedy, during which it was necessary for us to interpret the collective agreement in order to determine whether the complainants' interpretation was correct and hence, in accordance with the union's own rules, entitled to the union s support unless and until a change to the collective agreement was authorized by the membership and agreed to by the employer. That was not a ques­tion which it had been necessary to determine in order to assess whether section 68 had been breached. It was not a question which, in the circumstances of this case, could fairly have been assessed in an arbitration proceeding in which the union might not have been entitled to assert any interpretation inconsistent with that advanced by the complainants. In other words, with respect at least to layoffs subsequent to July 1982, there was something more to be determined by the Board before it could be said that the matter ought to have gone to arbitration. It seemed likely after our first hearings, and is apparent now, that there would have been little or nothing to an arbitration in which the interests advanced were those of the complainants and the employer, since the complain­ant and employer appeared to agree on the interpretation of the collective agreement and could have settled all but the company's estoppel defence with respect to the July 1982 layoffs on the basis of that interpretation. Only a very small portion of what we heard April 3rd and 4th would have been heard by an arbitration board in these circumstances, so there can be very little analogy between the complainants' expenses of these hearings and the expenses which might have been borne by the union had there been a referral to arbitration. In short, the analogy with what would have taken place had the case warranted the kind of remedial order made in the other cases cited by the complainants is simply unhelpful, because this was not that sort of case.

32. The other element which makes the complainants' submissions superficially attractive is the same feature which makes all claims for costs superficially attractive: the fact that the com­plainants have undoubtedly incurred substantial legal and other expenses in proceedings in which they have succeeded. That characteristic is shared by all of the cases in which the Board has been asked to award the successful party "costs" of the proceedings before it. Apart from the question of the Board's jurisdiction to award costs, the arguments in favour of awarding costs to a successful applicant or complainant would have equal force if made by a successful respondent in support of a claim that its costs of proceedings resulting in the dismissal of a complaint against it be paid by the unsuccessful complainant. This Board has repeatedly said that if it does have the power to award costs to a successful complainant, it would be inappropriate to exercise that power when there is no corresponding power to award costs against an unsuccessful complainant: see, for example, Silknit Limited, [1983] OLRB Rep. Nov. 1913 at paragraph 8. The nature of the proceedings before us in April, however novel those proceedings may seem, does not warrant a departure from the Board's policy with respect to costs, and I award none here.

33. One matter left outstanding by both the initial decision and the decision of August 29,

1985 is the form of the Notice to Employees contemplated by paragraph 85 of the initial decision. I direct that the respondents forthwith post copies of the attached notice marked "Appendix", duly signed by representatives of the respondents, on each and every of the bulletin boards and other locations in Abitibi's Mission Mill which are ordinarily available to it for the posting of notices of union business. The respondents shall keep the notices posted for 60 consecutive working days, and shall take reasonable steps to ensure that the notices are not altered, defaced or covered by any other material. If the respondents' use of bulletin boards and other locations is subject to a requirement that Abitibi approve the material the respondents propose to post, then Abitibi is hereby ordered to forthwith give the required consent or approval to the posting provided for in this paragraph.

DECISION OF BOARD MEMBER L. C. COLLINS;

I disagreed with my colleagues' original finding that the respondents violated section 68. I-lad my view of the matter prevailed, there would be no question of remedy. Nevertheless, taking my col­leagues' decision of July 23, 1985 as a necessary starting point, I must say I agree with Vice-Chair­man Gray's reasons for the decision of August 29, 1985, with which I concurred. I also agree with his interpretation of the collective agreement and with the way he dealt with the parties' arguments on damages, interest and costs.

DECISION OF BOARD MEMBER J. A. RONSON;

Respectfully, I must dissent with the reasoning of my colleagues.