Toronto, Typographical Union, Local 91 v. Burlington Northern Air Freight (Canada) Ltd., 1987 CanLII 3075

[1987] OLRB Rep. August 1064

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

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

APPEARANCES: M. Cornish, Doug Gray and Rick Best for the complainants; D. L. Brisbin, Wil­ham Machika and Mary Hauler for the respondent.

DECISION OF THE BOARD; August 17, 1987

1. In a decision dated December 19, 1986 regarding these matters (referred to herein as the "Decision"), the Board (with Board Member I. M. Stamp dissenting with respect to the major­ity's conclusion that the lock-out described in the Decision was unlawful) found that the respon­dent had contravened sections 15, 64, 66, 70, and 79 of the Labour Relations Act (the "Act") and section 24(1) of the Occupational Health and Safety Act, and directed that the respondent:

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

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

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

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

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

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

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

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

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

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

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

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

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

(See Burlington Northern Air Freight (Canada) Ltd., [1986] OLRB Rep. Dec. 1628, at paragraph 125. For ease of exposition, that part of the Decision is referred to herein as the "Direction", and the complainant trade union is referred to as the "Union” or "Local 91".)

2. Counsel for the complainants subsequently wrote to the Board to request that these complaints be relisted for hearing for the purpose of resolving certain outstanding questions with regard to damages payable by the respondent pursuant to the Direction. The requested hearing was held on May 28, 1987. Thereafter, on the agreement of the parties, written argument pertain­ing to the respondent's liability in respect of lock-out pay was filed by complainants' counsel on June 22, 1987 and by respondent's counsel on July 13, 1987.

3. The parties seek guidance from the Board with respect to the principles to be applied in quantifying the compensation awarded by certain portions of the Direction. They also seek to have the Board exercise its power under section 103(2)(g) of the Act to appoint a Board Officer to do an accounting, by receiving oral and written evidence, and reporting to the Board concerning factual issues remaining in dispute.

4. In paragraph 16 of the Decision, we found that the respondent (also referred to in this decision as the "Company") had contravened section 79 of the Act by withholding the employees' annual pay increase in November of 1984. The parties are in agreement that for purposes of quan­tifying that aspect of the direction, the amount of that pay increase should be 4% (based upon the increase in the Consumer Price Index between November of 1983 and November of 1984). How­ever, they have been unable to agree on whether, on the basis of the pattern established in 1982 and 1983, that increase would have been paid on November 15, 1984, as submitted by respondent's counsel, or earlier in the month, as contended by complainants' counsel. Accordingly, that is one of the factual issues to be dealt with in proceedings before a Board Officer. However, as indicated at the hearing of this matter, we sincerely hope that the parties will endeavour to resolve that rela­tively trivial matter without the need for further adjudication.

5. In paragraph 22 of the Decision, we found that the respondent had contravened section 66 of the Act by withholding the profit-sharing bonus which it had planned to give to its employees prior to the end of 1984. The parties are in agreement that the amount of bonus to be paid to indi­vidual employees should, if possible, be determined by reference to documentation prepared by management in 1984 concerning that bonus. They are also in agreement that if what remains of such documentation is insufficient to resolve the matter, the amount of bonus to be paid to individ­ual employees should be determined by assuming that a second bonus equal to the bonus paid to individual employees in June of 1984 would have been paid to them prior to the end of 1984.

6. In its landmark decision in Radio Shack, [1979] OLRB Rep. Dec. 1220, the Board directed an employer, which had failed to bargain in good faith and make every reasonable effort to enter into a collective agreement, to compensate bargaining unit employees for monetary losses arising from a loss of opportunity to theretofore negotiate a collective agreement. In concluding that the Board had jurisdiction to award such damages, and that it should exercise that jurisdic­tion, G. W. Adams, who was the Chairman of the Board at that time, wrote, in part, as follows:

100. What trade unions like the Complainant and the employees it represents lose in cases of this kind is "the loss of an opportunity" to negotiate a collective agreement or the loss of an opportunity to achieve an agreement at an earlier point in time. Employees join a trade union with, in their minds at least, the reasonable prospect of obtaining an improvement in their work­ing conditions. In fact, the Complainant may be able to statistically document the reasonable­ness of such employee expectations. When an employer responds with flagrant unfair labour practices, he wrongly prevents his employees from realizing their expectations or delays having to deal with any of their demands. For example, an employer may be able to escape with no contract at all if the initial organizing strength of the union can be so eroded by unfair labour practices that a strike can be outlasted. Moreover, the employer receives an unfair competitive advantage over those employers who do bargain in good faith, making the unlawful conduct attractive to other employers. In labour relations terms these employee losses are real; the potential employer gains unjust; and both are accomplished by the violation of a fundamental duty imposed by the legislation - bargaining agent recognition. The failure to consider any mon­etary relief seems to encourage these consequences. See generally: Note, An Assessment of the Proposed Make Whole Remedy in Refusal to Bargain Cases (1968), 67 Mich. L. Rev. 374; Note, An Analysis of The NLRB Objections To a Make Whole Remedy in Refusal to Bargain Cases (1971), 3 Rutgers-Camden LI. 272.

101. It can, of course, be argued that damages for the loss of such an opportunity are too specu­lative to estimate and if arbitrarily set would be punitive in nature.... The argument, however, is inconsistent with the long accepted principle that one whose wrongful act precludes the exact determination of damage should not be able to evade his duty to compensate for that damage because of an uncertainty caused by his own wrongdoing. See Mayne and McGregor on Damages 12th ed., 1961, para. 174. In private litigation before our courts, a party is not bur­dened with an unattainable standard of accuracy in the assessment of damages. Business losses in commercial law suits and the compensation awarded in personal injury cases to persons who may never have been employed are important examples. See for example: Withers v. General Theatre Corporation, [1933] 2 K.B. 536; Roach v. Yates, [1938] 1 KB. 256 (C.A.). Even more directly in point are those cases that explicitly grapple with the wrongful loss of an economic opportunity.

After reviewing a number of judicial and administrative authorities concerning damages for "loss of an opportunity", the Board concluded that part of the decision as follows:

115. We are sensitive that too arbitrary an approach to this kind of monetary loss might have the effect of unduly burdening employers and, accordingly, we embark on this new direction with caution. However, if we make no effort to chart this course, employees and trade unions will continue always to bear the loss. The fear of over compensation, in many contexts, has all too often resulted in no compensation with iniquitous results. To a very real extent, bargaining orders simply direct an employer to do what was originally required except that by virtue of the unlawful conduct the employer may have weakened the bargaining position of the union and thereby strengthened his own position. If awarding employees compensation for economic losses established by reasonable proof has the incidental effect of making such misconduct less attractive, it would be unduly restrictive to rule out this more effective remedy because of the incidental deterrent effect. Clearly, the preamble to the Act demands this Board to devise a compensatory remedy where this is at all possible. See Note, The Need for Creative Orders Under Section 10(c) of the NLRA (1963), 112 U.Pa.L.Rev.69.

An application for judicial review of that decision was dismissed by the Divisional Court: see Re Tandy Electronics Limited and United Steelworkers of America et al. (1980), 1980 CanLII 1738 (ON HCJ), 115 D.L.R. (3d) 197. (Leave to appeal was denied by the Ontario Court of Appeal on March 10, 1980.) Since then, the Board has awarded damages for "loss of an opportunity" in a number of decisions: see, for exam­ple, Consolidated Bathurst Packaging Limited, [1983] OLRB Rep. Sept. 1411 (application for reconsideration dismissed in [1983] OLRB Rep. Dec. 1995), and [1984] OLRB Rep. March 422; Forintek Canada Corp., [1986] OLRB Rep. Apr. 453; and Angelo Ritrovato, [1986] OLRB Rep. Oct. 1401.

7. In paragraph 124 of the Decision, we wrote, in part, as follows:

124. With respect to the respondent's breach of section 15, as recently noted by the Board in Forintek Canada Corp., [1986] OLRB Rep. Apr. 453, at paragraph 58, "[tlhe justification for an award of damages for breach of the duty imposed by section 15 of the Act and the basis on which such damages might be assessed were both explored at length in Radio Shack, [1979] OLRB Rep. Dec. 1220, at paragraphs 96 to 115, Canada Cement Lefarge Ltd., [1981] OLRB Rep. Dec. 1722, and Fotomat Canada Limited, [1982] OLRB Rep. July 1020." Although not every contravention of section 15 will result in an award of damages (see Canada Cement Lefarge, supra, at paragraph 26), we are satisfied that such an award is appropriate in the instant case....

Thus, as recognized by complainants' counsel and respondent's counsel, our direction (contained in part 2(iii) of paragraph 125 of the Decision) that the respondent pay compensation for "losses incurred as a result of the respondent's contravention of section 15 of the Act" includes an award of damages for loss of an opportunity to negotiate a collective agreement before October 1, 1986.

8. Complainants' counsel argued that, but for the respondent's contraventions of the Act, the parties would likely have entered into a collective agreement by May 8, 1985. She further con­tended that in determining the value of the loss of an opportunity to negotiate a collective agree­ment prior to October 1, 1986, the Board should find that in November of 1985 there would have been a wage increase of approximately half of the wage increase which this panel of the Board awarded (beyond the aforementioned cost of living increase) when it arbitrated a first collective agreement (in File No. 1223-86-FCA) pursuant to section 40a(4) of the Act (see Burlington North­em Air Freight (Canada) Ltd., [1986] OLRB Oct. 1327). That collective agreement became effec­tive on October 1, 1986 (and will remain in effect until September 30, 1988, in accordance with sec­tion 40a(18) of the Act). Complainants' counsel further submitted that bonuses would have been received by employees in June and December of 1985, and that those bonuses should be taken into account in quantifying the loss of opportunity. Counsel for the respondent, on the other hand, con­tended that no collective agreement would have been entered into until October 1, 1986. In the alternative, he submitted that the earliest date at which there would likely have been a collective agreement was July 10, 1986 (the date on which the Board directed the settlement of a first collec­tive agreement between the Union and the respondent). He also argued that there would not have been a wage increase in November of 1985, because the respondent was in financial difficulty at that time. (There is a dispute between the parties as to whether that financial difficulty resulted from "flat conditions" in the air freight business, as contended by the Company, or from the unlawful lock-out, as contended by the Union.) However, as an alternative position, he acknowl­edged that if the Board concluded that there would have been a wage increase at that time, there might be some rationale for quantifying it by halving the wage increase included in the arbitrated first collective agreement.

9. As indicated in our Decision, during the twenty days of hearing which were devoted to these consolidated complaints, the Board received detailed evidence concerning the various pro­posals submitted by the Union and the Company, their respective bargaining strengths and strate­gies, and related matters (see, for example, paragraphs 29-33, 36-52, 56-61, 66-70, 73-77, 81-86, 94, and 109-111). Having regard to the totality of the evidence and the submissions of the parties, we are satisfied that, more likely than not, a collective agreement would have been entered into by May 8, 1985, if the respondent had fulfilled its statutory duty to bargain in good faith and make every reasonable effort to make a collective agreement. We are further satisfied that the collective agreement would likely have included a wage increase of approximately half of the wage increase which this panel of the Board awarded (beyond the 4% cost of living increase referred to in para­graph 4 of this decision) when we arbitrated the aforementioned collective agreement. Although it is not possible to determine with mathematical precision when that wage increase would have been become effective, we have concluded that it would probably have been implemented by the 1985 anniversary date of the aforementioned increase which would have been given to employees in November of 1984 but for the respondent's contravention of section 79 of the Act. However, we have also concluded that a discount factor of 25% should be applied in calculating the compensa­tion payable under this head of damages, to take into account various contingencies, such as the possibility that the employees might have had to go on strike to obtain a collective agreement, and the possibility that they might have accepted a somewhat smaller wage increase. With respect to the matter of bonuses, we did not find it appropriate to include a bonus provision in the arbitrated collective agreement, and we are of the view that it is unlikely that a bonus provision would have been included in a collective agreement negotiated by the parties. Accordingly, bonus payments should not be taken into account in quantifying the losses incurred as a result of the respondent's contravention of section 15 of the Act.

10. The Union is entitled to be paid by the Company an amount equal to the Union dues and special assessments which would have been paid by bargaining unit employees from May 8, 1985 (i.e., the date by which the parties would likely have entered into a collective agreement but for the respondent's contraventions of the Act) to October 1, 1986 (i.e., the date on which the arbitrated collective agreement became effective). The compensation otherwise payable to bar­gaining unit employees for wages lost during that period is to be reduced by that amount (on a pro rata basis), since those Union dues and special assessments would have been deducted from their wages if there had been a collective agreement in force during that period.

11. We agree with the submission of counsel for the complainants, which was not seriously disputed by Company counsel, that a negotiated collective agreement would likely have extended full benefits to "permanent irregular employees", as did the arbitrated collective agreement. Com­plainants' counsel argued that the appropriate way to redress that loss would be for the respondent to pay to those employees an amount equal to the premiums which would have been paid by the respondent to provide them with that coverage. Counsel for the respondent, on the other hand, contended that the Company's obligation should not be to pay premium equivalents, but rather to reimburse employees for any expenses they incurred which would have been covered by the bene­fit plans. After recessing to consider that matter, we gave an oral ruling (on May 28, 1987) which accepted the respondent's position concerning that issue. In doing so, we took into account the purpose of a remedial determination under section 89 of the Act, which is to place the parties who have been wronged in the position which they would have been in but for the respondent's contra­ventions of the Act. As noted above, we are satisfied on the balance of probabilities that, but for the respondent's contraventions of the Act, by May 8, 1985 the Union and the respondent would likely have entered into a collective agreement which would have extended full benefit coverage to permanent irregular employees. Thus, from that day forward, those employees would have been entitled to the benefits provided by the respondent's Employee Benefit Plan (referred in Attach­ment "D" to the arbitrated collective agreement). They would not, however, have been entitled to receive premiums; the premiums required to provide that coverage would have been paid by the respondent to the insurer providing the coverage under that plan. Thus, to direct the respondent to pay those premiums to the employees themselves would be to place them in a different financial position than they would have been in if the respondent had fulfilled its legal obligations under the Act.

12. With respect to O.H.I.P. coverage, we note that it is common ground among the parties that employees who made payments to O.H.I.P. in order to maintain coverage during the lock-out are entitled to be reimbursed by the respondent for those payments. It is also common ground among the parties that if an employee's spouse made such payments in order to maintain family O.H.I.P. coverage, those payments must also be reimbursed by the respondent.

13. The parties are also in agreement that statutory payments, such as those regarding Unemployment Insurance and the Canada Pension Plan, are to be deducted from the sums other­wise owed by the respondent to individual employees, and are to be remitted by the respondent to the appropriate governmental agencies. They further agree that contributions to the respondent's non-contributory pension plan are to be made by the respondent directly to that plan for the period covered by the Board's Direction.

14. In paragraph 17 of the Decision, the Board found that the respondent had contravened section 79 of the Act by denying some of its probationary employees the wage increase that had traditionally been given to probationary employees at the time of their "ninety-day review" at the (successful) conclusion of their probationary period. Counsel for the complainants suggested that the amount of that increase be determined by averaging the increases which were given by the res­pondent to probationary employees upon successful completion of their respective probationary periods in 1984. In the absence of any suggestion by counsel for the respondent that this manner of determining the amount of the pertinent increases is inappropriate, we accept and hereby adopt the approach proposed by complainants' counsel.

15. In paragraph 18 of the Decision, we found that the respondent had also breached sec­tion 79 by changing its practice regarding provision of uniforms. The parties are in agreement that this contravention of the Act should be remedied by the respondent paying to the employees to whom the respondent failed to provide uniforms (upon successful completion of their respective probationary periods) the amount which the respondent would have paid to Unitog Canada Ltd. for supplying and cleaning such uniforms up to May 8, 1985.

16. In paragraphs 34 and 35 of the Decision, we found that the respondent had contravened sections 64 and 66 of the Act by reducing the hours of work of Robert Miller and Dan Poutsoun­gas, and by demoting Dale Robertson from "full-time" employment (with full benefits) to "part­time" employment (with reduced benefits). In paragraph 25, we found that the respondent had contravened sections 64, 66, 70, and 79 by, among other things, giving Mr. Robertson a two-day suspension. In paragraphs 64 and 65 we found that the respondent's suspension of Rick Best in February of 1985 contravened section 24(1) of the Occupational Health and Safety Act. In para­graphs 26 and 27, we found that the respondent had also violated sections 64, 66, 70, and 79 of the Act by, among other things, suspending Mr. Best for three days and suspending D. J. Simec for two days in March of 1985. The parties are in agreement that any unresolved factual issues regard­ing the resulting wage and benefit losses sustained by those individuals should form part of the Board Officer's inquiry.

17. In paragraph 105 of the Decision, we found that the termination of Dan Poutsoungas (effective May 10, 1985) should be overturned, and we directed the respondent to reinstate him with lost wages and benefits. The Board Officer will also receive evidence concerning those losses if the parties are unable to agree upon their quantification.

18. In paragraph 108 of the Decision, we found that the respondent had further contra­vened section 79 in 1985 by failing to follow its usual practice of posting a vacation sheet in late April or early May. In that paragraph we also indicated that the respondent would be required to pay compensation for all losses suffered by employees who did not receive their vacation pay at the time at which they would have become entitled to it but for that contravention of the Act. The par­ties agree that the employees in question did not receive their vacation pay until April of 1986. However, they are in disagreement concerning how the employees' losses should be determined. Complainants' counsel proposes that the Board assume that the vacation pay would have been paid on July 1, 1985, and award interest on it from that date to the date on which it was paid in April of 1986. However, we agree with counsel for the respondent that this approach would overstate the employees' loss, as the vacation pay would not have been payable until the time of their vacation. While it might be possible to determine when an individual would likely have taken his vacation on the basis of the timing of his vacation in previous years, we are of the view that the amount at stake is too small to warrant the expenditure of time and effort which this would entail. Failing agree­ment of the parties on an appropriate date from which to make the interest calculation, a Board Officer will ascertain the median employee vacation period date for 1984. A date which is one year later than that date will then be used for purposes of interest calculation. The interest on each affected employee's 1985 vacation pay is to be calculated without dividing the vacation pay in half (in view of the fact that the vacation pay would have been payable in its entirety at the time of the vacation and would not have accrued during the period for which interest is payable).

19. The Decision also found losses incurred by employees in respect of Canada Savings Bonds (which at the time of the unlawful lock-out were being purchased by employees through payroll deductions) to be compensable: see paragraphs 106, 118, and 119, and part 2(iv) of the Direction. For employees who borrowed money (at a higher rate than that payable on the master loan referred to in paragraph 106 of the Decision) in order to pay the Company the balance owing on their bonds in a lump sum, that loss consists of the difference between the interest paid to bor­row that money and the interest which would have been paid through payroll deductions, plus interest (calculated in accordance with Practice Note No. 13) on that difference. For employees whose bonds were cancelled, that loss consists of the difference between the interest which would have accrued on the bond during the period between the date of cancellation and the bond's matu­rity date, and the sum obtained by adding the interest which would have been paid by the employee through payroll deductions and the interest (if any) which was earned during that period by the employee through investment or deposit of the sum received by the employee when the bond was cancelled, plus interest (calculated in accordance with Practice Note No. 13) on that dif­ference.

20. As noted above, part 8 of the Direction ordered the respondent to "pay interest on the compensation ordered by the Board, such interest to be calculated (in respect of wages and other losses which accrued over a period of time) in accordance with Practice Note 13 dated September 8,1980". The parties have been unable to agree on the applicable interest rate, and on whether or not various sums payable by the respondent should be divided in half for purposes of interest cal­culation. Paragraph 3 of Practice Note No. 13 indicates that "[t]he appropriate annual interest rate normally applied is the prime rate as determined and published by the Bank of Canada in the Bank of Canada Review for the month in which the complaint was filed with the Board." As noted by the Board in Carroll Electric (1982) Limited, [1983] OLRB Rep. Dec. 1982, at paragraph 11, “[i]t is clear from Practice Note No. 13, read as a whole, and from the Board's decision in Hallowell House Limited, [1980] OLRB Rep. Jan. 35, that the applicable rate is not ... the rate which the Bank of Canada charges on its loans to chartered banks, but rather the 'prime rate', which is refer­red to in the Bank of Canada Review, as 'chartered banks rate on prime business loans'." The com­plaints in File Nos. 0037-85-U and 0039-85-OH were filed with the Board on April 4, 1985. The complaint in File No. 0446-85-U was filed with the Board on May 23, 1985. The prime rate for April of 1985 was 10.75%; it fell to 10.5% in the following month. The three complaints were con­solidated by the Board on the first day of hearing (June 5, 1985) and were subsequently heard and decided together. In the circumstances of this case, we find it appropriate that 10.6%, which is the (rounded) average of those two prime rates, be used in calculating the interest payable pursuant to our Direction in this matter. That figure reflects the approach set forth in Practice Note No. 13 (and approximates the average prime rate during the period from the spring of 1985, when the complaints were filed with the Board, to December of 1986, when the Board's decision on the mer­its of the complaints was issued).

21. The interest calculation described in Practice Note No. 13, and in the Hallowell case, supra, on which it is based, pertains to wages and other losses which accrue over time. Halving the wage portion of an award is generally appropriate in order to reflect the fact that the total wage loss experienced by an employee does not occur all at once, but accumulates with each pay period following the discharge (or lock-out) of the employee. However, as noted in Carroll Electric (1982) Limited, supra, at paragraph 12, "such division is not appropriate in respect of amounts which do not accrue over time". It is also not appropriate in respect of periods of time following the accrual period. For example, in the circumstances of the instant case, employees' wage losses accrued dur­ing the period of the lock-out (i.e., from May 8, 1985 until employees returned to work in July of 1986, pursuant to section 40a(13) of the Act). Thus, halving the total wages payable to employees during that accrual period of approximately fourteen months is clearly appropriate in calculating the interest payable in respect of that period of time. However, as of the date of the employees' return to work the period of accrual came to an end. But for the unlawful lock-out, the employees would have had the benefit of all of those wages by that date. Thus, during the entire period from that date up to the present time (and continuing until the respondent pays the employees their lost wages), the employees have lost the benefit of the total amount of wages which should have been paid to them during the lock-out. Consequently, halving that sum is neither necessary nor appro­priate in calculating the interest payable by the respondent in respect of the period following the lock-out.

22. The Union also contends that the respondent should pay the costs which the Union incurred to obtain:

(a) legal advice to deal with the respondent's contraventions of the Act;

(b) legal assistance in drafting these complaints and the applications and other materials filed with the Board in respect of the aforementioned proceedings under section 40a, including the access proceedings and the subsequent arbitration proceedings; and

(c) legal representation at the hearings held by the Board in respect of these complaints and the proceedings under section 40a of the Act.

The respondent is opposed to making any such payments.

23. In Academy of Medicine, [1977] OLRB Rep. Rep. Dec. 783, at paragraph 48, the Board, as part of a "make whole order", directed the employer to reimburse the union involved in those proceedings for "all reasonable organizational, bargaining, legal and other expenses associated with its efforts to acquire and pursue its statutory rights", including "the costs of proceedings before the Board". In that case, the employer had closed its Call Answering Service Division in order to "rid itself, once and for all, of the union and its supporters" (see paragraphs 29 to 34). The British Columbia Labour Relations Board adopted a similar approach in Kidd Brothers Produce, [1976] 2 Can. LRBR 304. However, in Radio Shack, [1979] OLRB Rep. Dec. 1220 (in part (d)(i) of paragraph 125), the Board declined to award legal costs in the context of proceedings involving a pervasive pattern of unfair labour practices, including violations of what are now sec­tions 15, 64, 66, 67, and 70 of the Act. In doing so the Board wrote:

We have decided against awarding the Complainant its legal costs in this matter. The Board is hesitant to pursue this line of compensation because of the possibility that the denial of legal costs to those parties who successfully defend against complaints may be misunderstood and perceived as unfair. This policy may be reviewed by the Board from time to time.

Since then, the Board has been asked on a number of occasions to review and alter that policy (see, for example, Angelo Ritrovato, [1986] OLRB Rep. Oct. 1401; Omstead Foods Limited, [1986] OLRB Rep. Aug. 1120; Jean Liebman, [1986] OLRB Rep. June 753; Luciano D'Alessandro, [1985] OLRB Rep. Dec. 1708; Gerald Lecuyer, [1985] OLRB Rep. July 1099 and [1987] OLRB Rep. April 529; John Glykis, [1985] OLRB Rep. March 420; and Coinstock Funeral Home, [1981] OLRB Rep. Dec. 1755. On each such occasion, the Board has declined to do so on the basis of labour relations policy considerations, including those articulated as follows in Silknit Limited, [1983] OLRB Rep. Nov. 1913:

8. We are not entirely unsympathetic to the complainant's concern, for we recognize that a party may well have to expend substantial sums in connection with proceedings under the Labour Relations Act. Moreover, there is something to be said for the argument that if one can obtain costs upon the vindication of private law rights, the measure of compensation for the successful assertion of public rights guaranteed by statute should be no less generous. However, there are a number of difficulties with this superficially attractive proposition. In the first place, costs are not dealt with explicitly in the statute, with the result that it is arguable that the Board has no jurisdiction to award costs except as a part of the compensation award flowing from a finding of a statutory violation. Thus, there may be no authority to compensate a party respondent which has successfully resisted or defended against a claim. And how should one deal with a situation in which, from a practical or legal stand point, success is divided? The law of costs in the civil process is both technical and complex, and there are good policy reasons why it should not be readily imported into a law of collective bargaining which has survived without it for forty years and which the laymen who operate within the system and regularly appear before the Board have some difficulty understanding as it is. Finally, while it is tempting to suggest that flagrant or egregious violations of the statute should result in a "make whole" remedy in which the aggrieved party is compensated for the costs of the proceeding, it is much less clear how one would distinguish an "ordinary" violation of the statute from a "flagrant" one or a frivolous assertion from one which is arguable but ultimately rejected. It is one thing to suggest that a serious breach of the Labour Relations Act may trigger special remedial considerations or call for ingenuity in fashioning the appropriate remedy; it is quite another to suggest that an "ordi­nary" breach of the Act yields one level of compensation while a "serious" one warrants a higher level of compensation. Such an approach would begin to look "penal" rather than "com­pensatory" (and see sections 96- 99 of the Act which are expressly penal in character).

We respectfully agree with that reasoning, and having carefully considered the submissions of counsel concerning this matter, we are not persuaded that in the circumstances of the instant case we should depart from the Board's well-established practice of declining to award legal costs.

24. There is also a dispute between the Union and the Company concerning whether the Union should be compensated for the remuneration paid to Doug Grey (the President of Local 91) and Joe Bigeau (the Vice-President of Local 91 and an International Organizer assigned to that local) during the time they spent at negotiation sessions with the respondent, and at Board hear­ings in relation to these three complaints, the Union's application under section 40a for a direction that a first collective agreement be settled by arbitration (File No. 0819-86-EC), and the subse­quent arbitration of the collective agreement (File No. 1223-86-FCA). It is the position of counsel for the complainants that those salary expenses are Union losses resulting from the respondent's unlawful acts and omissions. The Union also seeks compensation equal to the salary, transporta­tion, and accommodation expenses incurred in having Richard Weatherdon, an I.T.U. Interna­tional Representative, in attendance at some of the bargaining sessions. The respondent opposes all of those payments. It is the respondent's position that there was not an inordinate number of negotiating sessions, and that some negotiating progress was made at them. The respondent fur­ther contends that the salary paid to Union officials for time spent at Board hearings is one of the Union's costs of doing business, and should not be a head of damages. In this regard, counsel for the respondent also notes that the proceedings culminated in a collective agreement arbitrated by the Board pursuant to a legislative provision which was not available in previous cases.

25. We are of the view that salaries paid to Union officials while in attendance at Board hearings are analogous to legal fees incurred in respect of such proceedings, and that the reasons set forth above for denying the reimbursement of legal fees are equally applicable to such salary expenses. The same is true of salaries paid to Union officials and Union clerical staff for the time which they devoted to assembling materials for use in these proceedings and in the first contract arbitration proceedings. Negotiating costs, on the other hand, may be compensable in some cir­cumstances (see, for example, part (d) of the order contained in paragraph 125 of Radio Shack, [1979] OLRB Rep. Dec. 1220). In the instant case, some of the time spent at the negotiation ses­sions was wasted in dealing with proposals for which the respondent had no plausible business jus­tification and in relation to which the respondent was engaging in "surface bargaining" (see para­graph 115 of the Decision for examples of such proposals). Other time was wasted discussing relatively trivial matters which would likely have been quickly resolved if the respondent had been bargaining in good faith and making every reasonable effort to make a collective agreement. How­ever, some time was also wasted due to the lateness, non-availability, or lack of preparedness of Union representatives (see, for example, paragraphs 56, 82, and 110 of the Decision). Moreover, many of the provisions ultimately included in the arbitrated collective agreement (in accordance with section 40a(17) of the Act) were agreed upon through bargaining which occurred at the nego­tiation sessions. Having regard to all of the circumstances, we have concluded that the respondent must compensate the Union for half of the reasonable negotiating expenses incurred by the Union in respect of collective bargaining with the respondent, including half of the salaries paid to Messrs. Grey, Bigeau, and Weatherdon in respect of time spent at bargaining sessions.

26. The parties are in agreement that reasonable expenses which would not have been incurred by the Union but for the unlawful lock-out (such as long distance telephone and courier costs pertaining to lock-out pay, the salary and benefits of the extra office worker hired by the Union to administer lock-out pay, the costs of renting sanitation facilities, hall rental expenses, and reasonable incidental food costs) are compensable under the Direction. They are in disagreement, however, as to whether the Union is entitled to be reimbursed for costs incurred in producing materials such as stickers, leaflets, letterhead, labels, and buttons regarding the lock-out and the boycott campaign mounted against the respondent by the Union in an effort to hold the bargaining unit together and to dissuade the respondent from continuing the lock-out. In Grey-Owen Sound Health Unit, [1980] OLRB Rep. Feb. 223, at paragraph 27, the Board found printing costs and other expenses associated with the public campaign mounted by the Ontario Nurses' Association during a lock-out (which contravened what is now section 15 of the Act) to be "too remote" to be compensable, as they were "more related to the union's desire to maintain a favourable image than an attempt to keep the unit together in face of employer unfair practices". In that case, one of the union's purposes in embarking upon that campaign was to "make it clear that the trade union was not responsible for the work stoppage". In the instant case which, unlike Grey-Owen Sound, involved a pervasive pattern of unfair labour practices (see paragraph 121 of the Decision), includ­ing a lengthy unlawful lock-out intended "to punish employees for having exercised their rights to join a union and engage in collective bargaining, and to dissuade them from continuing to exercise those rights" (see paragraph 119 of the Decision), the evidence adduced before us indicates that the boycott campaign, picketing, and other activities promoted by the Union in respect of the res­pondent's unlawful lock-out of bargaining unit employees were intended to keep the unit together in face of the respondent's unfair labour practices, and to mitigate the losses suffered by employees and the Union as a result of that unlawful lock-out by attempting to bring it to a swift conclusion. Accordingly, we are satisfied that, in the circumstances of this case, the Union is entitled to be reimbursed by the respondent for reasonable costs incurred in producing materials such as stickers, leaflets, letterhead, labels, and buttons regarding the lock-out and the boycott campaign mounted by the Union.

27. The parties are also divided on the issue of mitigation. Counsel for the complainants contends that employees who are unlawfully locked out by their employer are not required to seek alternate employment. She argues that they may legitimately concentrate their energies on picket­ing the employer and promoting a boycott of the employer, as those activities are themselves a form of mitigation designed to end the lock-out. She further submits that the earnings of employ­ees who do obtain alternate employment should not be taken into account in determining the amount of compensation payable to them by the respondent. It is the position of respondent's counsel that employees who are locked out in violation of the Act do have a duty to mitigate their loss by seeking alternate employment. He acknowledges that the obligation to seek alternate employment does not arise at the very beginning of the lock-out, but submits that after two or three months a reasonable employee would realize that he is involved in a long term situation and would attempt to minimize his loss by seeking other work. It is the respondent's position that extra income earned by an employee's spouse during the lock-out should also be taken into account in quantifying the employee's loss. He also suggests that any compensation payable to the Union in respect of lock-out pay should be reduced by the amount of lock-out pay paid to employees who were not making reasonable efforts to find alternate employment after the two or three-month period. In this regard, it is his position that the Union was required to mitigate its loss by ceasing to provide lock-out pay to such employees.

28. It is well established in the Board's jurisprudence that a grievor who suffers an interrup­tion in earnings as a result of an unfair labour practice discharge must take reasonable steps to mitigate his loss: see, for example, Wilco-Canada Inc.,[1983] OLRB Rep. June 989; Fotomat Canada Limited, [1982] OLRB Rep. July 1020; and Sutton Place Hotel, [1980] OLRB Rep. Aug. 1250. Indeed, in Radio Shack, [1979] OLRB Rep. Dec. 1220, at paragraph 96, the Board suggested that dispensing with an obligation to mitigate losses would introduce a punitive element into a compen­sation order under section 89. Having carefully considered the able submissions of counsel, we have concluded that employees who are unlawfully locked out by their employer are obliged to take reasonable mitigatory action. However, as noted in Wilco-Canada Inc., supra, at page 1006, "[w]hether or not a grievor has taken reasonable steps to attempt to mitigate his loss is a question of fact dependent on the particular circumstances of each case". As indicated above, it is not dis­puted that during the initial period of the lock-out, an employee could reasonably refrain from seeking alternate employment on the basis that the lock-out would likely come to an end in the near future. However, by mid August the continued lack of progress in negotiations in the context of a lock-out which had continued for over three months would have rendered it unreasonable for an employee to continue to hold that view. By then, an employee could reasonably be expected to take steps to avoid or reduce further losses. The duty to mitigate would not, of course, require him to abandon support for the Union, nor to abandon his continuing status as an employee of the res­pondent: see in this regard section 1(2) of the Act, which provides that "no person shall be deemed to have ceased to be an employee by reason only of his ceasing to work for his employer as a result of a lock-out...." Thus, an employee would not be required to seek permanent employment else­where, or to seek alternate employment which, by reason of such matters as its location or work schedule, would preclude him from picketing the respondent's premises. Moreover, an employee seeking temporary alternate employment would be entitled to advise prospective employers that he had been locked out by the respondent, that his Union was seeking to end the lock-out by vari­ous means (including proceedings before the Board) which might from time to time necessitate his absence from the work place, and that he intended to return to work for the respondent when the lock-out came to an end.

29. As indicated in our oral ruling on May 28, 1987, any earnings which employees received from other employers during the lock-out (beyond what they were earning from those other employers prior to the lock-out) must be deducted from the sum which they would otherwise have received from the respondent. To ignore those earnings in quantifying the grievors' loss would be to place them in a better financial position than they would have been in if they had not been locked out. Under that approach, the Board's order would cease to be merely compensatory, and would take on a punitive aspect. However, as acknowledged by counsel for the respondent, employees are entitled to be reimbursed by the respondent for reasonable expenses (such as extra travel or child care expenses) incurred in mitigating or attempting to mitigate their loss. Extra income earned by an employee's spouse during the lock-out will not be taken into account in quan­tifying the employee's loss as, in our view, such income is too remote to be legitimately considered in the context of relief under section 89 of the Act. We also find no merit in counsel for the respon­dent's contention that the Union's duty to mitigate its loss required it to cease to provide lock-out pay to employees who failed to make reasonable efforts to find alternate employment during the lock-out. Lock-out pay (or strike pay) is provided to employees in order to provide them with some funds with which to purchase the necessities of life during a lock-out (or strike). Union offi­cials cannot reasonably be expected to make eligibility for such payments conditional on efforts by employees to find alternate employment during the strike or lock-out. Indeed, the existence of such payments is designed to minimize or at least delay the financial need to seek such employ­ment, thereby enabling the employees to concentrate their energy on picketing and other activities intended to end the lock-out and to maintain solidarity among bargaining unit employees.

30. The Union also seeks compensation from the respondent for the lock-out pay which was provided to employees during the unlawful lock-out. Until the morning of the May 28, 1987 hear­ing, the only issue in dispute among the parties concerning that head of compensation was quan­tum. In an effort to resolve that issue, on the day before the hearing complainants' counsel pro­vided respondent's counsel with the following letter, which was written on the letterhead of the International Typographical Union (the "I.T.U.") and was entered as an exhibit at the hearing on the agreement of the parties:

January 14, 1987

President Douglas Win. Grey Toronto Typographical Union No. 91 1929 Eglinton Avenue, West Toronto, ON, Canada M6E 2J7

Dear President Grey:

This will acknowledge receipt of your letter dated January 5, 1987 requesting the total amount of strike benefits paid to members of Burlington Northern Air Freight.

As requested, attached you will find a list of total ITU payments made to members of the Bur­lington Northern Air Freight through December 31, 1986.

With kind regards, I am

Fraternally yours,

(signed) Thomas W. Kopeck Secretary-Treasurer

The sheet attached to that letter lists amounts received by thirty persons, totalling $213,555.30.

31. At the May 28 hearing, Company counsel advised the Board and complainants' counsel that after further reviewing Mr. Kopeck's letter, he felt obliged to argue on behalf of his client that Local 91, and the employees represented by it, did not have a compensable loss in respect of lock­out pay, because the lock-out pay came from the I.T.U. rather than from Local 91. As noted above, on the agreement of the parties, complainants' counsel was permitted to submit written argument pertaining to the respondent's liability in respect of lock-out pay. (That argument was initially to be submitted on or before June 11, but that deadline was subsequently extended by the Board to June 22, on the agreement of the parties.) We find no merit in Company counsel's con­tention that complainants' counsel is estopped from making some of the arguments contained in the written submissions which were filed pursuant to that arrangement. As further noted above, on the agreement of the parties, counsel for the respondent was permitted to file written reply argu­ment concerning his client's liability in respect of lock-out pay. (That written reply argument was initially to be filed by June 25, but that deadline was extended by the Board to July 13, on the agreement of the parties.) The written submissions filed by respondent's counsel contain a detailed response to all of the arguments raised by complainants' counsel. We do not propose to reproduce or summarise the written submissions filed by counsel. It is sufficient for purposes of this decision to indicate that, having carefully considered all of the oral and written submissions of the parties concerning this aspect of the case, we have reached the conclusions set forth below.

32. As indicated above, lock-out pay (or strike pay) is provided to employees in order to provide them with some funds with which to purchase the necessities of life during a lock-out (or strike). In the case of the I.T.U., the strike/lock-out fund from which such payments are paid is financed by means of a surcharge on each member's dues. As contended by respondent's counsel (in his submissions regarding mitigation), in the instant case eligibility for lock-out pay was not contingent upon participation in picketing. Thus, lock-out pay was not paid as compensation for picketing. The lock-out pay received by employees from the I.T.U. during the course of the unlaw­ful lock-out was a collateral benefit and, accordingly, is not deductible from the compensation pay­able by the respondent to its employees for wage losses suffered during the unlawful lock-out: see, generally, Carter of California Inc., 1980 CCH NLRB ¶17,165; Sioux Falls Stock Yards Company, 1978 CCH NLRB ¶19,407; Florence Printing Company v. N.L.R.B., 376 F.2d 216 (1967); and N.L.R.B. v. Rice Lake Creamery Company, 365 F.2d 888 (1966). This will not result in making any of the employees "more than whole", as upon receiving compensation for lost wages from the respondent they will be required by section 11 of the I.T.U.'s Book of Laws to reimburse the I.T.U. in an amount equal to the benefits received from the I.T.U. during the lock-out. As submit­ted by counsel for the respondent, in Academy of Medicine, supra, and Securicor Investigation and Security Ltd., [1983] OLRB Rep. May 720, the Board directed that strike pay (or a portion there­of) be deducted from the compensation payable to the employees. However, in each of those cases, the Board also directed the employer to reimburse the complainant unions for their strike expenses, including strike pay (or a portion thereof). Moreover, there is nothing in those decisions which indicates that the issue of whether strike or lock-out benefits could, at least in some circum­stances, be non-deductible collateral benefits was argued or decided. Complainants' counsel did argue that issue in the instant case, and referred the Board to a substantial body of American juris­prudence which supports that conclusion where, as in the instant case, the benefits are not paid as compensation for picketing. We respectfully agree with and adopt that approach in the circum­stances of this case.

33. In view of the foregoing conclusion, it is unnecessary to determine whether or not the I.T.U. and Local 91 should be considered as separate entities for purposes of this case. It is also unnecessary to deal with the complainants' request (contained in the aforementioned written sub­missions of their counsel) that the I.T.U. be added as a party.

34. As noted above, the parties have requested the appointment of a Board Officer. We are prepared to grant that request, in the hope that with assistance of this decision and a Board Offi­cer, the parties will be able to resolve their differences and conclude this protracted litigation. Accordingly, a Board Officer is hereby authorized to meet with the parties to endeavour to resolve the matters remaining in dispute and failing such resolution, is further authorized, pursuant to sec­tion 103(2)(g) of the Act, to exercise the powers listed in section 103(2)(a), (b), and (c), for the purpose of inquiring into and reporting to the Board concerning the factual issues remaining in dis­pute regarding the quantification of the Board's Determination dated December 19, 1986, includ­ing:

(1) the date in November of 1984 on which the employees would have received their annual pay increase, on the basis of the pattern estab­lished in 1982 and 1983;

(2) the amount of profit-sharing bonus which would have been paid to employees by the respondent prior to the end of 1984;

(3) the losses incurred as a result of the respondent's contravention of section 15 of the Act, including loss of an opportunity to negotiate a collective agreement before October 1, 1986 (as delineated in para­graph 9 of this decision);

(4) the amount of Union dues and special assessments which would have been deducted by the respondent from bargaining unit employees wages and remitted to the Union in respect of the period from May 8, 1985 to October 1, 1986, if there had been a collective agreement in force during that period;

(5) the average of the wage increases which were given by the respon­dent to probationary employees upon successful completion of their respective probationary periods in 1984;

(6) the amount which would have been paid by the respondent to Unitog Canada Ltd. for supplying and cleaning uniforms up to May 8,1985 for employees who, following the certification of the Union, were not provided with uniforms upon successful completion of their respective probationary periods;

(7) the wage and benefit losses sustained by Robert Miller, Dan Pout­soungas, Dale Robertson, Rick Best, and D. J. Simec, as a result of the respondent's unlawful acts described in paragraphs 25, 26, 27, 34, 35, 64, and 65 of our Decision (dated December 19, 1985);

(8) the wage and benefit losses sustained by Dan Poutsoungas as a result of his termination by the respondent;

(9) the median employee vacation period date for 1984, and the interest payable to each employee (who did not receive his vacation pay until April of 1986) for the period between the date which is one year later than that date and the date in April of 1986 on which he received his vacation pay;

(10) the losses incurred by employees in respect of Canada Savings Bonds (as delineated in paragraph 19 of this decision);

(11) the negotiating expenses incurred by the Union in respect of collec­tive bargaining with the respondent, including salaries paid to Messrs. Grey, Bigeau, and Weatherdon in respect of time spent at bargaining sessions;

(12) the expenses incurred by the Union as a result of the unlawful lock­out, including long distance telephone and courier costs pertaining to lock-out pay, the salary and benefits of the extra office worker hired by the Union to administer lock-out pay, the cost of renting sanita­tion facilities, hall rental expenses, incidental food costs, and costs incurred in producing materials such as stickers, leaflets, letterheads, labels, and buttons regarding the lock-out and the boycott mounted against the respondent by the Union;

(13) the amount of remuneration which, but for the unlawful lock-out, would have been paid to employees by the respondent between May 8, 1985 and the date(s) on which they returned to work in July of 1986;

(14) the amount of earnings which individual employees received from other employers during the lock-out (beyond what they were earning from those other employers prior to the lock-out);

(15) the amount of expenses incurred by individual employees in mitigat­ing or attempting to mitigate their losses; and

(16) the amount of interest payable by the respondent, pursuant to part 8 of our Direction dated December 19, 1986 (and in accordance with the rulings contained in the instant decision).