The United Brotherhood of Carpenters and Joiners of America, General Workers' Union, Local 1030 v. Morewood Industries Limited, 1987 CanLII 2991

[1986] OLRB Rep. January 92

0424-86-U The United Brotherhood of Carpenters and Joiners of America, General Workers' Union, Local 1030, Complainant, v. Morewood Industries Limited, Respondent

BEFORE: S. A. Tacon, Vice-Chairman, and Board Members W. H. Wightman and R. R. Monta­gue.

APPEARANCES: Frank Manoni and Mark Lefebvre for the complainant; S. Rosenburgh and P. Kane (for the August 27 hearing date only) for the respondent.

DECISION OF THE BOARD; January 9, 1987

1. In this complaint pursuant to section 89 of the Ontario Labour Relations Act, the com­plainant alleges violations of sections 15, 64, 66 and 70.

2. By decision dated July 31, 1986, the Board set out a number of oral rulings and its rul­ing on a matter on which it had reserved at the time. In that latter ruling, in brief, the Board did not restrict the complainant's allegations to section 15 (that is, the Board refused to strike out the alleged violations of sections 64, 66 and 70), refused to give an interim ruling as to the interpreta­tion of section 15 and permitted the complainant to amend the complaint to cover events up to and including June 25, 1986 to the extent that the particulars of the impugned conduct of the respon­dent, apart from evidence regarding the May 31 negotiating meeting itself, were disclosed in the correspondence between the parties.

3. Following continuation of the hearing on August 11, further dates for continuation were fixed in the circumstances set out in the Board's decision of August 21, 1986. That decision gives the Board's reasons for rejecting the respondent's request for alternative dates. When the hearing was to reconvene, the respondent was to commence cross-examination of the second (and final) witness for the complainant, M. Lefebvre. At the August 11 hearing date, the respondent had indi­cated it intended to call nine witnesses, including S. Rosenburgh, who had thus far represented the respondent.

4. On the day scheduled for continuation, September 27, Rosenburgh failed to appear. The respondent was represented initially by P. Kane who informed the Board he had been retained to seek an adjournment and stated thatRosenburgh was on holiday and could not be con­tacted except when Rosenburgh chose to telephone counsel's office.

5. After hearing the parties' representations on the adjournment request, the Board ruled orally as follows:

The Board has considered the parties' submissions with respect to the adjournment requested by the respondent. In view of the Board's practice, an adjournment in these circumstances would only be considered by the Board if both parties consented and Mr. Manoni has indicated that the union is not prepared to do so.

The Registrar set dates for the continuation of this hearing on August 27 and 28 and so notified the parties. Mr. Rosenburgh by telegram requested alter­nate dates and set out the grounds for that request. The Board, in its deci­sion of August 21, considered those grounds and, for the reasons given, refused the request. This morning, the adjournment request was "renewed".

If the Board treats this morning's request for adjournment as a request for reconsideration of the Board's decision, in the context of the jurisprudence with respect to reconsideration (see for example, John Entwistle Construc­tion Limited, [1979] OLRB Rep. Nov. 1096), there are no grounds for recon­sideration of the August 21 decision in the Board's view.

Alternatively, the Board could treat the adjournment request this morning solely on its merits, rather than as a "reconsideration" request. On this basis, the grounds include those already noted in the telegram from Mr. Rosenburgh in his request for alternate dates, namely, that Mr. Rosenburgh had commitments during the week of August 25 to 29, and that Rosen-burgh's perception was that no early dates were possible and/or the deadline to inform the Registrar was not firm and/or the dates would be set on con­sent given the Board's invitation to the parties to indicate their commitments to the end of December, 1986. Insofar as the grounds for adjournment reit­erate the grounds set out in the earlier telegram, the Board adopts the rea­soning in its August 21 decision and refuses the adjournment. Insofar as "new" grounds are raised, the Board responds as follows. If a party con­cludes that a deadline given by the Board for informing the Registrar of com­mitments is not firm, that party bears the risk of an erroneous conclusion. This supposed error is not a ground for granting the adjournment. Mr. Kane noted that Mr. Rosenburgh was a lay person and suggested the Board should be less rigorous in the standards applied. The Board does not consider this as an appropriate ground for the adjournment request either. The Board indi­cated to Mr. Rosenburgh during proceedings that representation by counsel was not necessary and that the Board frequently dealt with "unrepresented" parties. However, the Board noted that the Board's hearings were legal pro­ceedings and a party choosing not to be represented by counsel bore what­ever risks that occasioned. The Board sees no basis for concluding that a lay person would regard a Board deadline as "less firm" than counsel would regard such a deadline. Whether lay person or counsel, though, the Board affirms that a party ignores a Board's direction at its own risk. Here, the company, not the Board or the union, must bear the risk of not meeting the deadline.

Mr. Kane indicated Mr. Rosenburgh would retain counsel if the Board felt the respondent should have counsel and this was another ground for adjournment. The Board notes it specifically did not direct Mr. Rosenburgh to retain counsel. The Board refers to its comments just noted in that regard. The Board also notes that Mr. Rosenburgh requested an adjournment on the first day of hearing in part to retain counsel (see the Board decision of July 31). Mr. Rosenburgh did not do so and represented himself on the second day of hearing and again on August 11. The Board did not and would not require a party to retain counsel and is not prepared to grant the adjourn­ment on this basis.

In conclusion, the Board rejects the adjournment request. The Board intends to continue this hearing at 1:30 p.m. with the cross-examination of the witness M. Lefebvre or, the Board is prepared to stand down this witness for the time being and the balance of the union's witnesses, if any, and pro­ceed with the examination of those witnesses whom the respondent wishes to call.

6. At the time scheduled for reconvening, respondent's counsel stated he had been unable to contact others in the company who could inform him of all witnesses who were to be called and their expected evidence. Nor had Rosenburgh contacted respondent's counsel. In the circum­stances, counsel indicated he could not cross-examine Lefebvre or, with respect to the alternative offered by the Board in its oral ruling, commence the respondent's case. With that, counsel departed and the Board proceeded to hear the argument of the complainant's representative on the merits.

7. The complainant called two witnesses: F. Manoni (who also acted as the complainant's representative) and M. Lefebvre. The Board assessed their testimony according to the usual criteria. Having weighed and assessed the evidence, including the documentary evidence and what appears to the Board as reasonably probable in the circumstances, the Board makes the following findings of fact.

8. The union was certified pursuant to section 8 of the Act on March 6, 1986 (see, Morewood Industries Limited, [1986] OLRB Rep. March 346, referred to as the Mitchnik deci­sion). A notice dated March 24, 1986 inviting all bargaining unit members to attend a union meet­ing on April 1 to select a negotiating committee and generate bargaining proposals was distributed at the plant. The meeting was scheduled to start at 5:00 p.m. F. Manoni, the union organizer, was in the chair and M. Lefebvre, an employee, was also at the head table. About 60 to 70 persons attended. The orderly commencement of the meeting, however, was disrupted by one Robbie Vanderveen. (This individual is referred to as "Robbie Vanderveen" throughout to avoid confu­sion with "Brain" Vanderveen.) The Board notes that there are several Vanderveens - all related -who work at the plant, including the wife of Brain Vanderveen and a Jeannie Vanderveen. All but Robbie are members of the bargaining unit. Brain Vanderveen had circulated a petition in opposi­tion to the certification application. Robbie Vanderveen was excluded from the bargaining unit as managerial; his position is that of foreman.

9. Manoni asked Robbie Vanderveen to leave as he (Robbie) was a member of manage­ment. Robbie Vanderveen refused to leave. Manoni repeated that Robbie Vanderveen was a fore­man and could not attend a meeting of bargaining unit employees. Robbie agreed that he was a foreman but stated that, as he was paid on an hourly basis, he could stay. Robbie Vanderveen then asserted that the employees should vote that night to determine whether or not they wanted a union. Manoni responded that the Board had decided that question in granting certification and there was not going to be a vote on that question. Robbie Vanderveen replied, "I don't give a shit about the Labour Relations Board, we want a vote". A small group of employees, including Brain Vanderveen, Jeannie Vanderveen and Mrs. (Brain) Vanderveen were vocal in their support of Robbie. However, when it became apparent Manoni would not direct a vote, most of the group (other than the Vanderveens themselves) started to depart. Robbie directed these persons to remain at the meeting; they did so but stood at the back of the hall. Robbie Vanderveen then quer­ied Manoni as to the monthly union dues. Manoni replied the dues were the equivalent of two hours per month of earnings. Robbie Vanderveen next asked about the union initiation fee. Manoni stated the fee was $1.00 now but $75.00 to join the union later. One member of the group standing at the back of the hall asked of Robbie Vanderveen why Rosenburgh had said that the ini­tiation fee was $500.00 and monthly dues were $70.00. Robbie did not reply but asked Manoni how long the employees had to wait before a termination application could be filed. Manoni testi­fied that he was reluctant to answer but Robbie Vanderveen interjected words to the effect "It's twelve months, isn't it? In twelve months we'll vote then and we'll throw you out. We want our own union.

10. Manoni tried to continue with the planned agenda. Other employees also exhorted the "Vanderveen group" to be quiet and let the meeting proceed. Manoni repeated that a member of management should not be present since the union's negotiating committee was to be selected and bargaining proposals discussed. Robbie Vanderveen persisted in his refusal to leave. Manoni then opened nominations for the union negotiating committee and suggested that the employees con­sider selecting one person from each department to serve on the committee. Persons from the vari­ous departments discussed the matter and a name from each department was put forward from the floor. In the presence of Robbie Vanderveen, the following bargaining unit committee was select­ed: Gerald Bellinger ("Heritage House" section); Peter Elliott (window department); Wyman Cal­houn (cabinet department); Mark Lefebvre (machine shop department); Richard Wood (truck drivers); and F. Manoni. Because of Robbie Vanderveen's presence, Manoni suggested that bar­gaining proposals should not be discussed but, rather, that each negotiating committee member would distribute a survey in their respective departments to determine the bargaining unit mem­bers' wishes. That survey form was distributed at the plant and a copy tendered in evidence. The meeting ended at that point.

11. It is appropriate to note that on April 1, shortly before the meeting, Rosenburgh met with the employees in the department where Lefebvre works. Lefebvre characterized the meeting as a "pep" talk by Rosenburgh about the company. One employee asked if everyone had to join the union. Rosenburgh responded that employees did not have to join and that he would get back to the worker on that point. Rosenburgh smiled at Lefebvre and commented that he (Rosenburgh) would have to watch what he said in front of Lefebvre. Rosenburgh also told the group that he was trying to appeal the Board's certification decision.

12. By letter dated April 3, 1986, Manoni informed Paul Kane, who at that time was acting as company counsel, of the presence of a member of management at the April 1 meeting. Manoni protested that conduct, asserted the activity violated the Labour Relations Act but stated the union would not file charges at that point "with the hope to establish a fair management labour relation­ship" and would wait and see if there was repeated interference with the union's rights. The Board notes that Paul Kane was the same individual who subsequently appeared on the respondent's behalf at the last day of hearing (see paragraph 4 above). Manoni also telephoned Kane to relate the April 1 events and mentioned Robbie Vanderveen by name. According to Manoni's uncontradicted evidence, Kane replied to the effect that if Robbie was present, that was improper, but the union would simply have to deal with "Brain" Vanderveen who was a bargaining unit member.

13. In his reply of April 9, Kane appeared to assert that no member of management attended the April 1 meeting and that any objection by bargaining unit members ("Mr. and Mrs. Vanderveen") was a problem the union would simply have to deal with. It is useful to set out that letter, in part:

(Kane to Manoni, April 9, 1986)

You advised me that Mr. and Mrs. Vanderveen were present at your union meeting on April 1st, at which time they raised some questions or objection to the results of the decision of the Ontario Labour Relations Board. I advised you that neither of such individuals were members of management and that objections from any employees covered by the certificate as issued, is a problem which your union is going to have to deal with, as they are your responsibility. To sug­gest that every complaint you receive from an employee covered by the certificate was origi­nated and orchestrated by management is a blatant attempt on your part to build up a proper file in anticipation of laying future complaints before the Board. In addition to being self-serv­ing, the employer cannot be responsible for the obvious prejudices which you will be carrying into any future organizational or negotiating sessions in this matter. It is rather early to be antic­ipating that the employer will not honour its obligations under the Ontario Labour Relations Act nor does it serve any useful purpose to threaten the future filing of complaints for alleged violations under the Act. Please be advised that the employer will not be intimidated in its future dealings with your union by such threats. Based upon inquiries that I have made, I am not aware of any member of management to date, either directly or indirectly, interfering with any activities which you have carried on subsequent to the recent decision of the Board.

14. Manoni responded in writing to Kane's letter. The relevant part of that letter, dated April 14, reads:

(Manoni to Kane, April 14, 1986)

…We are not building up a paper file in anticipation of laying future complaints before the Board. We are asking your cooperation in advising your client not to interfere in our Union business and not to force the Union to file further complaints....

15. Kane's reply of April 18 indicated that the company, not Kane's office, would be nego­tiating directly with the union and continued:

(Kane to Manoni, April 18, 1986)

The employer did not send any member of management to attend your union meeting on April 1, 1986. I am sure that if a member of management had been present at such a meeting, such an individual would have left if you had requested them to do so.

No one is forcing or encouraging your union to file further complaints before the Board, how­ever, it would appear from the extent and manner of your correspondence that the same is pres­ently contemplated by the union.

16. Notice to bargain was given by Manoni to Rosenburgh in a letter dated April 17 in which sections 14 and 15 of the Act were set out in italicized type. With respect to the first negoti­ating session, the letter read:

(Manoni to Rosenburgh, April 17, 1986)

Will you please advise of time and place suitable to begin negotiations within the time limits specified by the said section 15 of the Act.

Manoni also wrote to the Registrar on April 24 requesting a Board hearing to resolve the issues of compensation and reinstatement arising out of the Mitchnick award. Rosenburgh's response to that issue and the notice to bargain was as follows:

(Rosenburgh to Manoni, May 2, 1986)

Further to your letter of April 24, 1986,1 take great exception to the tone of your letter suggesting that you have not been able to reach me.

In some two months there has been only one call for your union and that was from a Mr. Harkness. I was out of the city at the time and he declined to leave a number or the reason for his call.

We are available to meet with you May 31,1986 at 2 p.m. We would suggest that a location con­venient to your members might be our board room.

Please confirm in writing your acceptance of the above time and location.

With respect to the reference to only one telephone call in two months, Manoni stated that Rosen-burgh had insisted that Manoni only communicate with the company in writing, not by telephone, and Manoni had complied as far as possible.

17. During this period, Manoni contacted another principal of the company, P. Lightfoot, in an effort to establish good relations between the parties. Manoni telephoned Lightfoot to arrange a time for coffee. In Manoni's words, he told Lightfoot "If you could meet me, I don't believe you would think I am the devil, I am a human being". The two did meet briefly in early May and discussed the parties' relationship generally. Manoni asked if Lightfoot was going to be on the company negotiating committee; Lightfoot replied that he was not. Manoni also asked why the company had not met within the fifteen days as required by the Act. Lightfoot replied that he didn't know as Rosenburg was handling all those matters.

18. It is appropriate to set out the next exchange of correspondence in full:

(Manoni to Rosenburgh, May 7, 1986)

Our Union considers your offer of the first negotiation meeting contained in your communication dated May 2, 1986, contrary to the requirements of Section 15 of the Ontario Labour Rela­tions Act.

The Union will be glad to consider any improved offer by your Company, which may demonstrate any sign of good faith negotiations by your Company.

We will appreciate hearing from you and remain,

(Rosenburgh to Manoni, May 13, 1986)

Thank you for your letter of May 7. If you are not available for the meeting I have requested please suggest an alternative date.

As indicated to you it is our busy time of year and we will require some flexibility on your part.

(Manoni to Rosenburgh, May 15,1986) (hand delivered)

We acknowledge receipt of your communication dated May 13, 1986.

I like to clarify that I did not say, in my letter of May 7,1986, that we were not available for the meeting that you had requested, but rather that "our Union considers your offer ... contrary to Section 15 of the Ontario Labour Relations Act" and I indicated to you to improve your offer.

We duly noted that "this is your busy time of the year" and for this reason we would like to implement our legal obligation by negotiating a collective agreement for your employees for the time they work.

In consideration of the offer contained in your communication of May 13, 1986, the Union suggests to meet any and/or every working day of next week from 9:00 a.m. to 5:00 p.m. and to continue during the evenings, if you should make yourself available, until we reach a collective agreement. We would be glad to accept the offered facilities of your Company board room and hope to be able to return your kindness on future meetings.

Please advise.

(Rosenburgh to Manoni, May 16, 1986)

We are in receipt of your letter of May 15, 1986.

We confirm our meeting for May 31,1986 at 2 pm in the boardroom at Morewood.

19. Manoni testified that, in the circumstances and having protested the delay, he felt the union had no choice but ultimately to accept Rosenburg's date of May 31 for the first meeting in order to get the bargaining underway at all. On May 31, the parties met, as agreed, in the company boardroom. The union negotiating committee was present. Rosenburgh, who arrived a few min­utes late, was the sole company representative. Manoni handed Rosenburgh the union's initial pro­posal and noted some minor corrections. Manoni's comments on the document lasted approxi­mately five to ten minutes. Rosenburgh replied that he needed time to consider the proposal and suggested June 16 as the next meeting date. Manoni objected that the meeting should be sooner. Rosenburgh refused on the ground that he was very busy, that the union document was substantial and he needed the two-week period to prepare the company's proposal in writing. After a few min­utes of discussion about a health and safety matter unrelated to collective bargaining, the meeting ended.

20. The parties attended a Board hearing (before a panel diffrently constituted, referred to as the Satterfield panel) on June 10 with respect to the compensation aspect of the Mitchnick deci­sion. Rosenburgh told Manoni that the June 16 negotiating meeting would have to be cancelled as he (Rosenburgh) could not prepare for both the meeting and the June 10 Board hearing. Manoni disagreed, asserting that Rosenburgh was obligated by the Act to negotiate and the hearing on June 10 was not precluding that bargaining.

21. The next day, Rosenburgh sent the following telegram and letter to Manoni (only the letter is set out as the text is identical).

(Rosenburgh to Manoni, June 11,1986)

Further to our telephone conversation of last week and our meeting yesterday, please be advised that the negotiation meeting scheduled for June 16, 1986 will have to be rescheduled for the following week.

As we had discussed, since I am the Company's sole negotiator as well as the chief operating officer it was impossible for me to prepare for your complaint before the board as well as review your proposed contract.

Please advise me as to which evening suitable during the week of June 22, 1986 to continue con­tract discussions.

With respect to our recent offer of employment to Rheal Bourgeois and Mike Hebert this was done without prejudice since both persons were offered employment January 29, 1986 along with the other grievers [sic]

22. The Board notes, in passing, that the June 10 Board hearing was adjourned on a prelim­inary motion by Rosenburgh. New hearing dates in that regard were eventually set for October 1986. It should also be noted that the June 10 hearing had been scheduled to continue on the fol­lowing day, June 11.

23. On receipt of Rosenburgh's letter, the union applied for conciliation (on June 16). Manoni again wrote to Rosenburgh on June 17, reluctantly accepting Rosenburgh's date for the next bargaining session.

(Manoni to Rosenburgh, June 17, 1986)

Further to the cancellation of June 16, 1986 negotiation meeting and your advise [sic] to meet the week of June 22, 1986 in the evening, the union has not [sic] other better choice than to meet on Monday June 23, 1986 at 5:00 p.m. Will you please therefore note that the union negotiating committee will be at your office then to continue negotiations.

As you may already know, the union requested conciliation service as it believes the negotiation scheduling is not proceeding expediently. In the mean time we will continue to meet and make every reasonable effort to conclude an agreement.

24. Unfortunately, although the letter spoke of Monday, June 23 as the meeting date, Lefebvre, in leaving a note for Rosenburgh on Friday, June 20, erroneously confirmed the meeting for Tuesday, June 24. Lefebvre realized his error that weekend and called Rosenburgh early on Monday, June 23, to correct the matter. Rosenburgh replied that it was too late as the following telegram and letter had already been sent to Manoni and he (Rosenburgh) would not change the date. (Again, only the text of the letter is set out.)

(Rosenburgh to Manoni, June 20, 1986)

Thank you for your letter of June 17, 1986.

Please be advised that I did not cancel our meeting scheduled for June 16, 1986. As discussed with you on several occasions it was impossible to prepare for contract negotiations and the labour board hearings at the same time.

I am bewildered as to your statement that the negotiations schedule is not proceeding expedi­tiously. I have before me a request from Mark Lefebvre, your chief union stewart, [sic] that he wishes to postpone the Monday June 23rd meeting to Tuesday June 24th. I am quite willing to accommodate this union delay in negotiations even though no reasons have been given.

25. After protest, Manoni agreed to June 24 in a hand delivered letter to the company.

(Manoni to Rosenburgh, June 23, 1986)

Our Union acknowledge [sic] receipt of your telegram and your two letters all dated June 20, 1986. Again I disagree with you. The Union considers your communications offensive and grossly incorrect: The Union has been and is willing, available, capable and desirous to meet and negotiate a collective agreement and compensation for employees, who were found by the Board, fired illegally [sic] by your Company. Since the begining [sic] of April the Union had the pleasure of meeting you, for such a purpose only once for few minutes, at 2:00 P.M. Saturday, May 31, 1986: you must remember how busy you claimed to be. A simple mistake of a date by Mr. Lcfebvre, which was quickly corrected, does not give you the right to declare that the Union is causing delays in negotiations. You have no right to accuse the Union of delaying to pay compensation for time lost to the twelve grievors, only because you just reviewed your files and believe that the Union did not submit all the required informations [sic].

The contents of your communication do not foster harmony necessary to negotiate, but, making every reasonBble effort, we will be at your office at 5:00 P.M. on June 24, 1986 to continue negotiation

26. On June 24, Manoni and the union negotiating committee arrived at the company office about 4:45 p.m. for the meeting scheduled for 5:00 p.m. The secretary showed them to the board­room. Rosenburgh was not there. The union committee waited. Rosenburgh still did not appear nor was there any message as to his expected time of arrival, although he was on the premises. Finally, at 5:40 p.m. the union negotiating committee left. Rosenburgh then sent the following let­ter to Manoni, dated June 25:

(Rosenburgh to Manoni, June 25, 1986)

It is impossible to continue negotiations if you do not wish to meet. When a meeting is called for 5 PM and you depart at 5:30 PM because the meeting has not commenced, I find that your unwillingness to accept the fact that my responsibilities as negotiator for the company are not my only tasks and that I must also be active in the day to day functions.

It appears that you can no longer act in a professional manner and therefore by copy of this let­ter, I request that Mr. Harkness appoint a new representative on behalf of the Carpenters and Joiners of America.

27. The Board notes that the union negotiating committee met amongst themselves on sev­eral occasions during the period from April 1 and that a second meeting of the bargaining unit employees was held on June 26 to report on the negotiations. No members of management attended that meeting, although Brain Vanderveen was present.

28. The complainant's representative noted that its agreement to proceed first to lead evi­dence did not alter the burden of proof on the respondent under section 89(5) of the Act. The complainant's representative conceded that, at least with respect to the asserted contravention of section 15, the onus lay on the complainant. The testimony and documentary evidence were reviewed in some detail. With respect to section 15, it was argued that the respondent had acknowledged there was no meeting within the 15 days of the notice to bargain and, on the evidence, there was no agreement to extend that period. That is, the complainant's representative contended the respondent had breached the statutory duty imposed in the first part of section 15. Further, it was submitted the evidence supported a conclusion that the respondent had violated the obligation set out in the second part of section 15 as well, that is, the respondent failed to bargain in good faith and make every reasonable effort to conclude a collective agreement. In this instance, the representative asserted the distinction between "hard" and "surface" bargaining was irrelevant as there had been no bargaining at all, just repeated attempts by the respondent to thwart negotia­tions. It was submitted that the respondent's conduct not only violated section 15 of the Act but could only be regarded as a deliberate attempt to interfere with the complainant's representational rights. The complainant's representatives reviewed the decision in Radio Shack, [1979] OLRB Rep. Dec. 1220, upheld 80 CLLC ¶14,017 (Ont. Div. Ct.) as similar to the instant case on the facts and applicable with respect to the appropriate remedial relief. In this regard, the previous finding that the respondent had committed massive unfair labour practices, as set out in Mitchnick deci­sion was stressed.

29. As noted, Rosenburgh, the company's representative, failed to appear on the day scheduled for continuation and P. Kane, acting as counsel for the respondent on that day, departed after the Board refused the adjournment request. (See paragraphs 4, 5 and 6 above.) The Board herein sets out the submissions of the respondent raised in an earlier objection by the respondent, which touched on the duty to bargain in good faith. The respondent conceded that there had been no meeting within the 15 days of the notice to bargain but asserted the first meeting on May 31 had been set on agreement of the parties and, thus, the complainant had waived that aspect of section 15. It was further asserted that the duty to bargain in good faith and make every reasonable effort to conclude a collective agreement applies only to the conduct of the first and subsequent meetings, that is, solely to the period when bargaining actually commences, and is severable from the ditty to meet within 15 days of the notice to bargain.

30. The Board first deals with the duty to bargain in good faith. Section 15 of the Act reads:

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.

31. The statutory duty to bargain in good faith requires the employer to recognize and solely bargain with the trade union authorized as the bargaining agent of the employees in the bar­gaining unit and obligates both parties to enter into full, rational discussion of the issues in dispute: pe Vilbiss (Canada) Ltd., [1976] OLRB Rep. Mar. 49; Fotomat Canada Ltd., [1980] OLRB Rep. Oct. 1397. As stated in De Vilbiss, as well, the parties must share an intention to conclude a collec­tive agreement and the employer may not view negotiations as an opportunity to rid itself of the union. In this context, the Board evaluates the conduct of the employer throughout negotiations but also including the employer's responses to the union organizing drive in the certification application. The concepts of "hard" and "surface" bargaining were developed to distinguish between self-interested conduct which coexists with an intention to enter a collective agreement, albeit on as favourable terms as possible, and conduct which is suggestive of merely "going through the motions", for example, in order to so undermine the union that employee support is entirely vitiat­ed: Radio Shack, supra; Fotomat, supra; The Daily Times, [1978] OLRB Rep. July 604; Canada Trustco Mortgage Company, [1984] OLRB Rep. Oct. 1356; T. Eaton Company Limited, [1985] OLRB Rep. Mar. 491; Radio Shack, Division of Tandy Electronics Limited, [1985] OLRB Rep. Dec. 1789.

32. It is useful at this juncture to refer to the following passage from Radio Shack, supra:

33. The legal result of these provisions in the context of bargaining is that once a certificate is issued to a union by this Board, an employer cannot embark on negotiations with a view to rewarding or protecting those employees it believes to have opposed the trade union. Such conduct undermines the exclusive bargaining agent status of the trade union and the minority of employees are amply protected by collective bargaining realities and numerous provisions of the Act. They have the right to participate in the affairs of a trade union (section 3) and their views must be considered by the bargaining agent acting on their behalf (section 60). The collective bargaining reality is that any union representing them will require their co-operation in effecting economic sanctions against an employer if negotiations reach the impasse stage. Indeed, ongo­ing employee dissatisfaction ultimately can manifest itself in the form of an application for decertification. Thus, while it may be tempting for some employers to conduct bargaining with a view to fostering dissension in a bargaining unit by attempting to protect those employees who initially opposed the trade union, it is improper and in violation of the Act to do so. Such con­duct interferes with the rightful choice made by the majority of the employees in the bargaining unit, and simply feeds the anxiety of those employees who, for whatever reason, had earlier doubts about the need for or viability of collective bargaining in their workplace.

34. Bargaining with the obvious view of creating and fostering dissension within a bargaining unit, is also a failure to abide by the requirements of section 14 which obligates trade unions and employers alike to "bargain in good faith and make every reasonable effort to make a collective agreement." On numerous occasions this Board has said that the bargaining duty fortifies the employer's obligation to recognize the duly certified bargaining agent of its employees. See gen­erally De Vilbiss (Canada) Limited, supra. This means that employer conduct during the bar­gaining process aimed at undermining the credibility of a trade union in the eyes of the employ­ees not only violates sections 56, 58 and 61, it will also amount to a failure to negotiate in good faith. Section 14 demands that both parties have the common intention of signing a collective agreement provided that they can reach agreement on its terms.

35. This brings us to the specific charge that the Respondent has not bargained in good faith and made reasonable efforts to reach an agreement. In discussing the nature of the bargaining duty, we noted the difficulty of distinguishing hard bargaining from conduct which is more in the nature of "going through the motions"~ and lacking any real intention of signing an agreement -"surface bargaining" if you will. Experience has taught this Board that it must be particularly sensitive to this distinction in first contract situations. Few employers willingly embrace collec­tive bargaining, but most accept the right of the employees to participate in that process and negotiate first agreements with duly certified bargaining agents without rancor or controversy. This, of course, does not mean that all first agreement controversy is a product of anti-union animus or that good faith bargaining in first agreement situations must always end in a contract. Neither proposition would be true. However, the Board and the Legislature of this Province are painfully aware of a number of situations where employers have resisted the organization of their employees by patently unlawful means and the economic dependence of an employee on his employer has been shown to be a very fertile environment for the improper manipulation of employee wishes. Indeed, so delicate is the employment relationship in this respect that the Legislature, in its wisdom, deemed it necessary to enact section 7a, an extraordinary provision which permits the certification of a trade union where, because of improper employer conduct, "the true wishes of employees are not likely to be ascertained..." Unfortunately, the issuance of a certificate by this Board does not always bring an end to unlawful employer conduct. A trade union is in no more vulnerable a position in many situations than after the issuance of a certificate, particularly where its organizational campaign has attracted the commission of employer unfair labour practices. Some employers are therefore tempted to continue the con­troversy over recognition in the knowledge that further delay in negotiating an agreement and the spectre of continued employer hostility will demoralize a sufficient number of employees that no collective agreement will need be signed. Accordingly, in order to effectuate the under­lying policies of the Act including section 7a, the Board must be most circumspect in applying the bargaining duty to first agreement negotiations. The Board should not conclude lightly that an employer is merely engaging in hard bargaining in such situations or that it is exercising its freedom of speech in communicating directly with bargaining unit employees. The nuances of each case must be considered and earlier employer unlawful conduct may trigger a detailed assessment of bargaining activity. The legitimate concern for "freedom of contract" or "free­dom of speech" ought not to blind the Board to abuses committed under either banner, and that strike at other equally fundamental tenets of the legislation.

36. With that background, the Board turns to the instant case. Firstly, the Board rejects the assertion by the respondent that the duty to meet within fifteen days is severable from the duty to bargain in good faith and make every reasonable effort to conclude a collective agreement. Such an interpretation flies in the face of the legislative purpose of the section. The obligation in the lat­ter part of section 15 is triggered once the notice to bargain is given; to hold otherwise would cre­ate a period wherein the employer's conduct is free from scrutiny under section 15.

37. During the hearing, the respondent appeared to suggest that there had been an agree­ment by both parties to defer the first negotiating session to a date beyond the fifteen-day period. The Board does not agree. It is clear from the correspondence that, in giving notice to bargain dated April 17, 1986, the union specifically set out the text of section 15 of the Act, wished to meet within that period and, later, protested the date selected by the respondent. That the union felt compelled to ultimately comply with the respondent's insistence on the May 31 date in order to commence bargaining at all does not constitute an agreement to extend the statutory period for the initial negotiation session. The respondent called no evidence to explain the delay. Accordingly, the Board finds that the respondent contravened section 15 of the Act in failing to meet within the fifteen-day period.

38. The respondent did not merely postpone the commencement of negotiations. Rather, it is apparent that the initial delay was but the first step on a course intended to thwart any meaning­ful bargaining. The first negotiating session lasted no more than a few minutes: the union delivered its proposals, with a few minor corrections. The respondent told Manoni time was needed to study the proposals and prepare a written response. However, the respondent next sought to force the union to choose between proceeding with the Board hearing scheduled for June 10 and 11 (before the Satterfield panel) to deal with the issue of reinstatement and compensation arising out of the Mitchnick decision and proceeding with the second negotiating session scheduled - at the respon­dent's insistence - for June 16. Then, having succeeded in obtaining an adjournment of the Board hearing on June 10, the respondent cancelled the June 16 session in any event.

39. The respondent also sought to shift the blame for any difficulties onto the union and Manoni in particular. For example, in his letter of May 2, Rosenburgh castigated Manoni for there not being more than one telephone call from the union in two months, notwithstanding Rosen-burgh's insistence that all exchanges were to be in writing only. The respondent consistently por­trayed the union's protestations as "frivolous", as attempts to build a "paper file" for complaints with the Board. The difficulty in finalizing the June 24 meeting date neatly illustrates the two ele­ments of the respondent's strategy to thwart negotiations, namely, delay and an aggressive stance to shift the blame to the union. Manoni's letter stipulated Monday, June 23, as the date for the sec­ond bargaining session; Lefebvre erred in his note to Rosenburgh by referring to Tuesday. Rosen-burgh immediately seized on the mistake and sent a telegram and letter to the union depicting the company as "acceding" to the union's change of plan. Rosenburgh then refused to change the date back to Monday. Again, the respondent did not offer any explanation to the Board as to why the meeting could not be held on the Monday. Finally, the respondent did not even appear at the time scheduled for the June 24 meeting. The union waited for forty minutes before leaving. The only reasonable inference from the evidence is that Rosenburgh fully intended to humiliate the employ­ees's bargaining agent, in circumstances where the humiliation would be public knowledge within the plant, and, thereby, undermine employee support for the union.

40. The conduct of the respondent following notice to bargain must be viewed in the con­text of massive unfair labour practices committed by the respondent during the union organizing drive, including the dismissal of a number of employees contrary to the Act. The unfair labour practices were so serious that certification was accorded the union pursuant to section 8 of the Act. The Board need not detail that earlier misconduct, set out in the Mitchnick decision, but, in the Board's view, the respondent's entire pattern of behaviour amply illustrates the concerns referred t9 in the excerpt quoted from Radio Shack, supra (see paragraph 32 above).

41. Rosenburgh is the president of the respondent and is clearly the guiding mind of the res­pondent. Further, Rosenburgh is the sole negotiator for the company. Rosenburgh repeatedly stressed his dual role as president and sole negotiator to Manoni to justify the difficulty in arrang­ing meetings, the delays and cancellations. Rosenburgh's position was that the union just had to accept that situation. The Board does not agree. While each party is free to select its negotiators, that right cannot be used to subvert the collective bargaining process. The negotiators must be rea­sonably available to meet and discuss the issues in dispute in order to satisfy the statutory require­ment that both sides make every reasonable effort to reach a collective agreement: Fotomat Can­ada Limited, supra. The respondent's conduct, taken in its entirety, contravenes this aspect of the duty to bargain in good faith as well.

42. In summary, then, the Board finds that the respondent has violated its statutory obliga­tion imposed in section 15 of the Act to meet within 15 days from the giving of notice to bargain and to bargain in good faith and make every reasonable effort to conclude a collective agreement.

43. The Board next turns to the remaining allegations. In this regard, the Board notes that, while a violation of section 66 was alleged in the complaint filed with the Board, the union with­drew this aspect as it related to persons already the subject of a Board order in the Mitchnick deci­sion. Sections 64 and 70 of the Act are considered herein. Those provisions read:

44. 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.

45. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

46. In the Board's view, the union's documentary and viva voce evidence supports a finding that the respondent contravened both sections 64 and 70. The Board reiterates its earlier com­ments that the respondent conducted negotiations so as to undermine the union with the ultimate aim of vitiating the support of the employees for their bargaining agent. That is, the delay in the commencement of negotiations and setting further dates, the cancellation of the June 16 negotiat­ing meeting and the failure to appear at the time scheduled for the June 25 bargaining session also constitute a violation of section 64. Moreover, the Board must consider the events of the April 1 meeting which Robbie Vanderveen attended. Robbie Vanderveen's presence at the April 1 meet­ing was vigorously denied in the letters of April 9 and April 18 from Kane, then acting as respon­dent's counsel. It may well be that Kane was misled by the respondent as to the true facts. At the hearing, though, Rosenburgh conceded that Robbie Vanderveen had attended the union meeting. The notice of meeting was addressed to all bargaining unit members. Robbie Vanderveen was a member of management. The respondent did not call Robbie Vanderveen to explain his presence and conduct at the meeting. The only reasonable inference from the evidence before the Board is that Robbie Vanderveen's conduct at that meeting was disruptive and intended to be so. In the Board's view, the respondent, through one of its management personnel, intentionally interfered with the trade union's representational rights and sought to intimidate and coerce employees with respect to their support of the union and the exercise of their rights under the Act. The details of the April 1 meeting are set out in paragraphs 8, 9 and 10 and need not be repeated at this point except to note that Robbie Vanderveen, notwithstanding the Board's certification of the union, sought to reopen the issue of certification, held out the prospect of a termination application and the formation of the "employees' own union" at the earliest possible date and ordered a group of bargaining unit employees to remain in the hall to support his attack on the union. Robbie Vande­veen's presence at the meeting, his continuing refusal to leave and the conduct just noted all con­stituted contraventions of sections 64 and 70 of the Act by the respondent. This conduct may be regarded as a variation on the usual "surveillance" cases but the consequences are no less perni­cious in terms of the "chilling effect" on the employees: K Mart Canada Ltd. (Peterborough), [1981] OLRB Rep. Jan. 60; Radio Shack, supra; Securicor Investigation and Security Ltd., [1983] OLRB Rep. May 720; Robin Hood Multi-Foods Inc., [1981] OLRB Rep. July 972. It is difficult to conceive of a more flagrant violation of sections 64 and 70 than the attendance of a member of management at a union meeting, to which all bargaining unit members have been invited, called to select a negotiating committee and discuss union bargaining proposals.

47. The Board's authority to fashion an appropriate "make-whole" remedy is beyond dis­pute. That remedial authority is broad and must adequately compensate for the effects of the par­ticular misconduct in each case. In this instance, the Board has found the respondent violated sec­tions 15, 64 and 70 of the Act. Those violations are serious and strike at the heart of the respondent's obligations under the Act to recognize and deal exclusively with the employees' bar­gaining agent. The Board considers that declarations to that effect coupled with cease and desist orders and a posting are insufficient to deal with the pernicious consequences of the respondent's conduct on the recognized bargaining agent and the employees. These violations represent a continuation of the respondent's earlier widespread unfair labour practices found in the Mitchnick decision. Quite simply, the respondent has not modified its behaviour following the certification of the union; the respondent has merely changed its tactics. Its goal remains the vitiation of employee support for their bargaining agent and the ousting of the union. The Board adopts the reasoning in Radio Shack, supra, with respect to the redressing of monetary losses incurred by the union and the need for 'a reasonable opportunity for the union to recapture the earlier momentum' that sparked the certification application.

48. In Radio Shack, supra, the Board concluded it had no authority to impose a collective agreement. That case predated the recent amendments to the Act providing for first contract arbi­tration. However, what is before the Board at this juncture is not an application for first contract arbitration. Therefore, the Board must endeavour to devise a remedy for the unfair labour prac­tices to put the collective bargaining process "back on track". In the Board's view, this requires the assistance of a mediator. Accordingly, the respondent is directed to prepare a complete collective agreement proposal consonant with the duty to bargain in good faith and which it is prepared to sign. That proposal shall be presented and explained at a negotiating meeting convened as directed by a mediator appointed by the Ministry. The parties shall continue to meet as directed by the mediator to negotiate a collective agreement in accordance with the obligation imposed by section 15 of the Act. Further, in order to rekindle employee support, the remedial relief must provide for meaningful access by the union to the employees at the plant.

49. In conclusion, the Board hereby:

(a) declares that the respondent has violated section 15 of the Act in failing to meet within 15 days of the notice to bargain and in failing to bargain in good faith and make every reasonable effort to conclude a collective agreement;

(b) declares that the respondent has violated sections 64 and 70 of the Act in that a member of management attended and sought to disrupt a union meeting and in that the respondent sought to undermine the union and vitiate employee support for their bargaining agent through intimida­tion, coercion and interference with the union's representational rights;

(c) directs the respondent forthwith to cease and desist from further viola­tions of the Act and to bargain in good faith and make every reasonable effort to conclude a collective agreement;

(d) directs the respondent, within ten days of the issuance of this decision, to prepare a complete collective agreement proposal consonant with the duty to bargain in good faith and which it is prepared to sign; further, directs the respondent to present and explain that proposal at a negotiat­ing meeting convened as directed by a mediator appointed by the Minis­try; the parties shall continue to meet as directed by the mediator to negotiate a collective agreement in accordance with the obligation imposed by section 15 of the Act;

(e) directs the respondent to provide union representatives for a period of two years from the date of this decision with reasonable access to all employee notice boards at the respondent's premises for the posting of union notices, bulletins and other union business literature to facilitate the information flow in the work place from the union covering all aspects of collective representation and collective bargaining negotia­tions;

(f) directs the respondent forthwith to provide the union for a period of two years from the date of this decision with the names, addresses and tele­phone numbers of all employees in the bargaining unit represented by the union; such list is to be kept updated on a monthly basis;

(g) directs the respondent forthwith to permit union representatives to con­vene a meeting at the respondent's premises during working hours which all bargaining unit members are to attend, and for which they shall be paid; that meeting is to last up to two hours and no member of manage­ment may attend;

(h) directs the respondent to pay all of the monetary losses of the union and bargaining unit employees, together with interest, which may reasonably be proved as arising from the respondent's breaches of the Act as found herein, including the loss of opportunity to negotiate a collective agree­ment;

(i) directs the respondent forthwith to post copies of the attached notice, marked "Appendix", after being duly signed by an authorized represent­ative of the respondent, in conspicuous places where they are likely to come to the attention of employees, and to keep the notices posted for 60 consecutive working days; reasonable steps shall be taken by the res­pondent to ensure that the said notices are not altered~ defaced or cov­ered by any other material; reasonable physical access to the premises shall be given by the respondent to a representative of the union so that the union can satisfy itself that this posting requirement is being com­plied with.

45. The Board remains seized to deal with any disputes concerning the implementation of this decision.

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 ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH BOTH THE COMPANY AND THE UNION 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 AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNION;

TO ACT TOGETHER FOR COLLECTIVE BARGAINING;

TO REFUSE TO DO ANY AND ALL OF THESE THINGS. WE ASSURE ALL OF YOU THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS.

WE WILL NOT INTIMIDATE OR EXERT UNDUE INFLUENCE UPON YOU, WHETHER THROUGH MEETINGS, INDIVIDUAL CONVERSATIONS OR OTHERWISE, TO PREVENT YOU FROM EXERCISING YOUR RIGHT TO ASSOCIATE AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A UNION.

WE WILL BARGAIN IN GOOD FAITH AND MAKE EVERY REASONABLE EFFORT TO CONCLUDE A COLLECTIVE AGREEMENT.

WITHIN TEN DAYS OF THE ISSUANCE OF THIS DECISION, WE WILL PREPARE A COMPLETE COLLECTIVE AGREEMENT PROPOSAL CONSONANT WITH THE DUTY TO BARGAIN IN GOOD FAITH AND WHICH WE ARE PREPARED TO SIGN.

WE WILL PRESENT AND EXPLAIN THAT PROPOSAL AT A NEGOTIATING MEETING CONVENED AS DIRECTED BY A MEDIATOR APPOINTED BY THE MINISTRY AND SHALL CONTINUE TO MEET AS DIRECTED BY THE MEDIATOR TO NEGOTIATE A COLLECTIVE AGREEMENT IN ACCORDANCE WITH THE OBLIGATION IMPOSED BY SECTION 15 OF THE ACT.

WE WILL PROVIDE UNION REPRESENTATIVES FOR A PERIOD OF TWO YEARS FROM THE DATE OF THIS DECISION WITH REASONABLE ACCESS TO ALL EMPLOYEE NOTICE BOARDS AT THE COMPANY PREMISES FOR THE POSTING OF UNION NOTICES, BULLETINS AND OTHER UNION BUSINESS LITERATURE.

WE WILL PROVIDE FORTHWITH TO THE UNION FOR A PERIOD OF TWO YEARS FROM THE DATE OF THE BOARD'S DECISION WITH THE NAMES, ADDRESSES AND TELEPHONE NUMBERS OF ALL EMPLOYEES IN THE BARGAINING UNIT REPRESENTED BY THE UNION; SUCH LIST WILL BE KEPT UPDATED ON A MONTHLY BASIS.

WE WILL PERMIT FORTHWITH UNION REPRESENTATIVES TO CONVENE A MEETING AT THE COMPANY'S PREMISES DURING WORKING HOURS WHICH ALL BARGAINING UNIT MEMBERS ARE TO ATTEND, AND FOR WHICH THEY SHALL BE PAID; THAT MEETING WILL LAST UP TO TWO HOURS AND NO MEMBER OF MANAGEMENT WILL ATTEND.

WE WILL PAY ALL OF THE MONETARY LOSSES OF THE UNION AND BARGAINING UNIT

EMPLOYEES, TOGETHER WITH INTEREST, WHICH MAY REASONABLY BE PROVED AS ARISING FROM OUR BREACHES OF THE ACT, INCLUDING THE LOSS OF OPPORTUNITY TO NEGOTIATE A COLLECTIVE AGREEMENT.

WE WILL FORTHWITH POST COPIES OF THIS NOTICE, MARKED APPENDIX, AFTER BEING

DULY SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY, IN CONSPICUOUS PLACES WHERE THEY ARE LIKELY TO COME TO THE ATTENTION OF EMPLOYEES AND WILL KEEP THE NOTICES POSTED FOR ~O CONSECUTIVE WORKING DAYS AND WILL TAKE REASONABLE STEPS TO ENSURE THAT THE NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL.

WE WILL GIVE REASONABLE PHYSICAL ACCESS TO THE PREMISES TO A REPRESENTATIVE OF THE UNION SO THAT THE UNION CAN SATISFY ITSELF AS TO COMPLIANCE WITH THE POSTING RETIREMENT.

WE WILL COMPLY WITH ALL DIRECTIONS OF THE ONTARIO LABOUR RELATIONS BOARD.

MOREWOOD INDUSTRIES LIMITED

PER (AUTHORISED REPRESENTATIVE)

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.

DATED this 9TH dav of JANUARY 1986