Ontario Public Service Employees Union v. Superior Ambulance Limited, 1987 CanLII 3279

Ontario Public Service Employees Union v. Superior Ambulance Limited

[1987] OLRB Rep. May 772

3392-84-U Ontario Public Service Employees Union, Complainant v. Superior Ambulance Limited, R. J. Armstrong and Al Erlenbusch, Respondents

BEFORE: N. B. Satterfield, Vice-Chair and Board Members J. P. Wilson and H. Kobryn.

APPEARANCES: Alick Ryder, Q.C, for the applicant; B. R. Baldwin, Maynard Ross and Ira Ross for the respondent; Leslie McIntosh for the respondents Al Erlenbusch and R. J. Armstrong.

DECISION OF THE BOARD; May 25, 1987

1For reasons given infra, R. J. Armstrong and Al Erlenbusch have been added as respondents to this complaint.

2This complaint made under section 89 of the Labour Relations Act alleges that sections 66 and 67(1) of the Act have been violated by Superior Ambulance Limited directly and through its agents R. J. Armstrong and A. Erlenbusch and by Armstrong and Erlenbusch personally. The original complaint named only the corporate respondent. Counsel later wrote to the Board requesting leave to amend the complaint by adding as respondents the Ministry of Health for the Province of Ontario, Armstrong and Erlenbusch. The complainant abandoned its claim against the Crown in right of the Ministry of Health before the complaint came on for hearing. Then, at hearing, complainant counsel advised the Board in his opening statement that the complainant was no longer seeking the addition of Erlenbusch as a respondent. Therefore the complaint is dismissed against Erlenbusch.

3Sections 66 and 67(1) of the Act provide as follows:

66. No employer, employers' organization or person acting on behalf of an employer or an employers' organization~

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or retrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

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

4The actions of Superior and Armstrong which are alleged to be violations of sections 66 and 67(1) of the Act relate to certain dealings they are alleged to have had with several employees of Superior who were participants in or had completed a course of training in an Advanced Life Support Pilot Program (hereinafter "the Program") of the Ministry of Health of the Province of Ontario. The complainant is the exclusive bargaining agent of the employees pursuant to a collective agreement with Superior. The complainant's allegations stated generally are that Superior, directly and through Armstrong, and Armstrong personally bargained terms and conditions of employment with the employees individually contrary to section 67(1) of the Act and, when the employees rejected the proposed terms and conditions and exercised their rights under the Act to be represented by the complainant, they were threatened with removal or were removed from the Program as punishment for having exercised their rights under the Act, contrary to sub-sections (a) and (c) of section 66 of the Act.

5The particulars of the alleged unlawful acts include the following:

(I) Armstrong offered employees in the Program at a meeting called by him a five percent increase in wages and premium pay for overtime and for work performed on statutory holidays.

(2) Armstrong withdrew that offer at a later meeting with the employees which also had been called by him.

(3) Armstrong, Erlenbusch and Ernie Jones, all of the Ministry, personally and on behalf of Superior, called a third meeting of the employees in the program and made an offer to them respecting their wages and premium pay for overtime and statutory holiday work. Armstrong personally and on behalf of Superior threatened the employees against exercising their rights under the Act when he told them that employees who previously had refused the offered terms and had been removed from the Program would not be allowed to return to it.

(4) Armstrong personally and on behalf of Superior made an offer in writing to an employee of Superior.

(5) Maynard Ross, owner of Superior, caused three of Superior's employees who had completed a course of training in the Program to be removed from it because they refused to engage in private bargaining with him about the terms for them continuing in the program.

(6) Armstrong and Erlenbusch, personally and on behalf of Superior, refused to permit two of Superior's employees, who had been removed from the Program along with three other employees of Superior, to return to the Program immediately after the complainant and Superior had agreed on terms for the reinstatement and employment of the five employees in the Program, in order to punish the three employees for having exercised their rights under the Act.

6Prior to the complaint coming on for hearing, the complainant was seeking the following relief:

(1) A declaration that the respondents had violated sections 66 and 67(1) of the Act as alleged.

(2) An order that the respondents cease and desist from violating the Act and from any further violations of it.

(3) An order that the respondents reinstate to the Program the five employees of Superior who had been removed from it.

(4) Compensate the employees for the loss of wages and benefits arising out of the failure of the respondents to continue the employees in the Program, or, should the Board not order reinstatement, order damages representing the wages and benefits which the employees would have received had they been continued in the program.

When the parties finally came before the Board for hearing of the complaint, the complainant and Superior agreed that the complainant's claim for damages against Superior shall be limited to recovery of the costs of requalification in the Program for five Superior employees: E. Kenna, M. Nelles, M. Posteraro, J. Ramage and W. Reiach.

7The events giving rise to this complaint began in January 1984 and continued into 1985 until this complaint was made March 19, 1985. The complaint was adjourned sine die on consent of the parties. Hearings into the complaint eventually began in late November 1985 and were completed at the end of February 1986.

8The Board's findings of facts about the relevant events are made from the testimony of Jacqueline Gardner, James Ramage, Evelyn Kenna and Mark Nelles for the complainant, Richard Armstrong and Ira Ross for the respondents. The Board has assessed their credibility according to the usual criteria and what is reasonably probable having regard to the evidence as a whole. At all material times Gardner was staff representative of the complainant for the Hamilton area, Armstrong was acting manager of the Program for Erlenbusch who was on leave of absence, and Ross was co-owner of Superior and responsible for its labour relations.

9The Program was started by the Ministry in January 1984 in two test areas, Metropolitan Toronto and Hamilton. The duration of the Program was to be from January 1984 to June 1985. Eventually it was extended for a further six months to the end of 1985. The regular ambulance services in Ontario provide basic life support. Advanced life support is a para-medical service. The Program was established as a research project in order to test the form and content of an Advanced Life Support service and to gather data as a basis for assessing the effectiveness of the service and deciding whether a province-wide para-medical service would be viable. It was expected that persons selected to participate in the Program would be in it for 49 weeks, the first part of which was a 12-week period of study at the Toronto Institute of Medical Technology (hereinafter "TIMT"), followed by a period of clinical study at a hospital. For the balance of the Program, participants were assigned to work under medical supervision provided by the supervising hospital on vehicles carrying special life support equipment and drugs, operating from various bases in the Hamilton area to answer emergency calls. This was the work experience part of the Program for the participants and the research part of it for the Ministry. Participants who completed the 49 weeks and passed written and oral examinations received a diploma. The parties referred to them as graduates. Other active participants were referred to as students. For ease of reference the Board will adopt those terms.

10The work experience part of the program involved the students in performing prescribed medical procedures. In order for them to be able to perform those procedures, they had to have authority delegated by a practitioner qualified pursuant to the Health Disciplines Act and be under the supervision of such a practitioner. The same condition would apply to graduates who continued in the extended program. That is the key distinction between the Basic Life Support service provided by the ambulances services of Superior and the other two operators, and the Advanced Life Support service of the Program.

11Superior is one of three ambulance services operating in the Hamilton area. The other two are Danver Ambulance Service and Fleetwood Ambulance Service. Armstrong met with representatives of the three operators and Gardner on November 14, 1983, and informed them of the Ministry's plan to introduce the Program in the Hamilton area. He told them that there would be 14 places in the Program and that they would be available to full-time driver attendants employed by the three services who could satisfy the qualifications and admission procedures for the Program. Armstrong informed the meeting that students would need to take a leave of absence from their employer but would be paid a weekly salary based on 40 hours at the hourly rate they had been earning as a driver attendants. Payment of the premiums for their benefits also would be continued, but no overtime would be paid. Salaries would be paid on cheques of the ambulance services with whom they had been employed and the operators would also make the benefit payments on the students' behalf. The Ministry was to provide transportation from Hamilton to TIMT. Armstrong elaborated as follows on the conditions in response to a series of questions from Gardner. The students would receive any merit or anniversary increases that would have applied in their driver attendant job. They would be required to work shifts but would not be paid shift premiums or for working on statutory holidays. They would be eligible to use vacation and sick credits. The Ministry would provide the funding for the payments of students' salaries and benefits and for the wages and benefits of the employees who replaced those who went into the Program.

12It is useful to refer here some of the other mechanics of the Program. The specially equipped vehicles used by the students for the operational part of the Program were supplied by the Ministry. The Ministry, also made arrangements with Superior to provide garaging and servicing for them. Doctors of the emergency services department at McMaster University Hospital (hereafter "McMaster") provided the medical supervision for the students on the emergency vehicles. The scheduling of their work was done by the Program co-ordinator, a registered nurse hired by McMaster for the Program. At the start of a shift, the students would pick up their vehicles at Superior, report to McMaster for medical supplies and instructions and then proceed to the assigned base to await dispatch on emergency calls. Any discipline issued to students during the Program would come from the persons supervising the phase of the Program at which the need for discipline arose. Such discipline would not be reported to a student's ambulance service employer.

13After Armstrong's meeting with the ambulance service operators and Gardner, Gardner distributed to the driver attendants a document dated November 15th setting out her understanding of the conditions which would apply should they participate in the Program. She also expressed the need for the employees to ratify the conditions before the start of the Program. Armstrong met with prospective participants on November 20th and explained how the Program was expected to work, the entry qualifications and the conditions available for employees who entered the Program. About a month after that meeting, Gardner addressed the following letter to Superior dated December 19th:

'I am writing to you concerning replacement staff for successful A.L.S. employees.

In order to assist the Ministry in the new ALS. programme, Local 207 has voted in favour of the following:

t. All new employees hired to replace successful candidate to the ALS. programme must be hired as regular full-time employees with the appropriate

rate of pay and all benefits as per the collective agreement.

The Union recognizes these employees are subject to lay off if the A. L. S. students return to Superior at any time.

2. New hirees must come from the current pan-time employees of Superior Ambulance Service who do not have full-time positions elsewhere.

3. If lay off is necessary, full-time will be able to displace part-time staff first.

4. Seniority will continue to accrue for those ambulance attendants who attend the ALS. programme.

As the results of the ALS. interviewing should be known this week, I would ask you call me to finalize our mutual understanding of the procedures to be followed."

While the letter is directed primarily to certain conditions for employees who replaced those entering the Program, the emphasized passages clearly relate to conditions for students in the Program. Superior did not at any time signify in writing agreement with the terms set out in the letter. The collective agreement in effect at the time had an expiry date of March 31, 1984. The parties did not make the terms of Gardner's letter part of the renewal agreement between the parties which was signed February 28, 1985 to have effect from April 1, 1984 to March 31, 1985. The uncontradicted evidence is that Superior applied the terms of the letter nonetheless.

14It is accepted by all parties that the students would be on leave of absence from their employers and that the duration of the Program would be 49 weeks. No particular format was adopted for the requesting and granting of leave. Superior accepted the requests as written by eight of its employees who were accepted into the Program. Two examples are in evidence before the Board. Their texts are as follows:

"Please except [sic] this letter as request for time off, for the duration of the pilot ALS program. This request is in conjunction with the contract released from TIMT, pertaining to wages, benefits and return to employeement [sic] after or during this program."

"I, (name deleted), request a Leave of Absence, to commence on March 11th, 1984, & continue while I am participating in the Paramedic Program.

It is agreed I will receive full wage & benefit compensation during this leave, & any increases negotiated & agreed upon on my behalf, by the union, any other agency or party, will be granted.

In addition, it is agreed my senority [sicl will continue to accumulate during this leave.

It is further agreed upon, that at any time, I may return to the position I leave (at least this level of responsibility), whether I was to discontinue in the program by choice or otherwise, immediately upon submitting a written request to terminate, this Leave of Absence.

Amendments to the above Agreement, may only be made, if all of the parties below, or their duly appointed representatives, concur."

The first quoted was signed by the employee and countersigned as accepted by Ira Ross for Superior to begin on a specified date. The second was signed by the employee, the union steward and Ira Ross for Superior.

215. Eight of Superior's employees applied for and obtained leave of absence to enter the Program. Part way through the Program, five of these employees, while still students in the program, filed grievances claiming that they had been refused overtime pay for work on a statutory holiday or for working beyond a regularly scheduled shift. One of the grievances went to arbitration. The arbitrator found that Superior had allowed the grievor paid leave of absence even though the collective agreement did not provide for it and was otherwise silent respecting the status of employees on paid leave. The arbitrator found also that the complainant herein and Superior had not agreed on terms for overtime and dismissed the grievance. The award issued in June 1984.

216. Sometime prior to October 1984, the Ministry decided that the Program had not produced enough data from which to draw conclusions for a decision on the effectiveness of an Advanced Life Support service and that the Program should be extended for a further six months to the end of 1985. Armstrong was delegated to advise the students and the parties affected. He met with Gardner on October 2, 1985, and informed her of the decision to extend the Program and explained the need for the extension. He told her as well that the Ministry was providing additional funds for the Program and would be paying a five per cent increase to everyone who completes the 49 weeks and remains in the Program. They would also be paid for overtime and working on a statutory holiday. Armstrong explained to Gardner that the extra funding would be flowed through the operators so that the increase and any payment for overtime and worked statutory holidays could be included in the cheques issued by the operators for the basic 40 hours. He told her supplementary funding would be stopped for anyone leaving the Program. Armstrong advised Gardner that he would be conveying this information to the participants. He had not told Superior or the other operations prior to the meeting that he was going to be meeting with Gardner.

217. Armstrong met with the Program participants early in November. There is some confusion in the evidence of witnesses who attended the meeting as to its precise date. It was likely November 9th, but nothing turns on the date. There were subsequent meetings, so the Board will refer to the first one by that date. Armstrong did not invite Gardner to the first meeting because he had already informed her of the matters he would be announcing. He had told the operators prior to meeting the students that he would be announcing an increase and the overtime and statutory holiday payments. He got their agreement to flow the extra funds through them so that these payments could be made on their cheques. He did not tell them of the amount of the increase prior to the meeting with the students. Armstrong told the students at the meeting that the Program was being extended and that the Ministry was providing extra funding so that the conditions available to anyone staying in the Program after completing the 49 weeks would include a five per cent increase and payment for overtime and working on statutory holidays. When he finished his explanation, he answered students' questions. Some expressed disappointment and dissatisfaction with the increase, and one seemed angered by it.

218. When news of the meeting reached Gardner it drew a quick response and protest to Armstrong for announcing a five per cent increase. She telephoned him the same day as the meeting and then addressed a letter to him dated November 16th, the text of which is:

Further to our telephone conversation of Friday, November 9th, 1984 the following is OPSEU's position on graduates of the Paramedic Programme.

SALARY

Your offer to increase the salary level of graduated paramedics to the Public Service start rate for Nurse 2, General, is unacceptable for a number of reasons. Firstly, the Ministry of Health is not the recognized employer as there are current collective agreements with the three owner/operators of Fleetwood, Superior and Danver. If however, you are prepared to put in writing that the Ministry is in fact the real employer, then OPSEU will entertain bargaining with the Ministry.

Secondly, your opening offer is an interesting opener but as I mentioned to you over lunch on October 2, 1984, any changes to the collective agreement including salary would need to be negotiated and ratified by the bargaining unit involved.

VACATION

It is OPSEU's position that paramedics should be allowed to take their vacations in accordance with their collective agreements.

OVERTIME

As per the collective agreements.

LEAVE OF ABSENCE

Upon receipt in writing from the Ministry of Health as to what the projections for continuation of the pilot would be, OPSEU will take to its membership for ratification extension of leave of absence as it pertains to seniority.

SUMMARY

In summary, it is OPSEU's position that all of the above must be properly negotiated with OPSEU, who is the recognized bargaining agent for the paramedics from Fleetwood, Superior and Danver Ambulance Services.

As the first scheduled graduates of the Paramedic Programme are due to graduate in early December, it is expected that any negotiated improvements to their current collective agreement would be retroactive to their date of graduation.

I look forward to hearing from you and/or the owner operators with a date to set up bargaining.

That response provoked a decision in the Ministry to withdraw the increase. Armstrong met again with the students on November 30th to inform them of the decision. He read Gardner's letter to them and told them, because of the letter, the five per cent increase would not be paid. Armstrong also told the students that the matter of leaves of absence from their employers for the extended Program was between them and the employers. The same day he addressed the following reply to Gardner's November 16th letter:

"Thank you for your letter of November 16, 1984 regarding your concerns over the pilot paramedic program in Hamilton.

I wish to inform you that the Ministry of Health is not the employer of the students participating in this program as these individuals are on a leave of absence from their employers. Therefore, I wish to confirm that as a result of your concerns, I have advised the students that we do not wish to appear to be interfering with the bargaining process between them and their employers in any way. As a result, any monetary discussions I have had with them while they were on a leave of absence from their employer are not to be given any consideration whatsoever in any negotiations that may take place with their employer.

Clearly, their continued involvement on the pilot program is an issue between them and their employer (the ambulance service) and the Ministry has no involvement in this process.

I should further advise you that the Ministry wishes to continue with the pilot program until December, 1985 and look forward to continued involvement of all of the students."

219. Shortly after the November 30th meeting, two students who had completed their 49 weeks and had graduated from the Program, did not renew their leaves of absence from Superior, for reasons explained infra, and returned to their driver attendant jobs. Ira Ross told Armstrong immediately. Armstrong thought their leaving the Program was a response to withdrawal of the increase and that others might leave as well, jeopardizing the Program. He obtained a decision to reinstate the increase. On December 20th, he met with the students, that is, the remaining Program participants, and informed them that the five per cent increase would be paid. He confirmed that payment for overtime and work on statutory holidays remained as originally announced. Gardner was not at the meeting and when informed of it that same day, delivered this written reaction to Armstrong:

"It has come to my attention that you met today with the remaining Paramedics to offer them a wage increase when they are certified as Paramedics, overtime and premium pay for statutory holidays.

This letter is written to express my concern that once again you are interfering in negotiations without authority. This is not to suggest OPSEU does not at this time nor in the immediate future wish to have a speedy resolution to the current problems we are experiencing with the Paramedic programme in Hamilton.

In that regard, I offer you once again to meet with all parties and members of the bargaining units I represent to discuss proposed ways to deal with the Paramedic programme for those who are currently graduated and for those who will graduate in 1985.

If it is not your intent to meet with us, I will then be seeking legal advice as to what other avenues I can persue [sic] in regards to your continued interference and unwillingness to meet to resolve this problem."

Armstrong replied the next day as follows:

"Thank you for your letter received today by taxi regarding the "paramedic" students on a leave of absence from their ambulance services.

I must once again clarify with you that the ministry is not the employer of these students and in fact, these students are on a leave of absence from their respective ambulance services. Therefore, any discussions we have with these people are between them as individuals and the advanced life support pilot program and do not in any way involve the union.

I have not met with nor will I meet with any individual that removed themself from the program and request that the union involve itself in negotiations with their employer, the ambulance service. Also, I did not comment on any issues between the union and the ambulance operators as clearly they have nothing to do with the pilot paramedic program.

However, I should advise you that I feel the union is interfering with the operation of this program and has no right to do so."

At a meeting on January 7, 1985, after discussion of some operational matters, Armstrong gave each of the remaining students the following letter of the same date, confirming what he had told them at the December 20th meeting about the five percent increase and the payment for overtime and statutory holiday work.

I am writing to confirm the discussion between you, as an advanced life support program student on a leave of absence from your employer, and myself as one of the pilot program managers.

Should you choose to continue in the pilot program, the program has funds built in to augment your basic ambulance attendant salary by 5% and cover the cost of overtime once you graduate from the 48 week training program. However, I wish to make it clear that the additional funding is provided soley [sic] in recognition that you are no longer a student and is not in any way to be associated with any position classification as this is to be achieved at a later date. Also, it must be understood that this has no bearing whatsoever with any agreements between you and your employer.

Finally, I must again state that this is not an offer subject to any negotiations of any kind. It is soley [sicl your decision to continue in the pilot advanced life support program under these conditions or return to your normal ambulance duties with your employer.".

20. When Ira Ross of Superior learned that the Program was to be extended, he decided that employees who wished to remain in it should renew their leaves of absence. This time, however, after consulting legal advice and the other operators, he decided that the conditions of leave should be set out in writing. The legal advice came from Superior's legal counsel in the instant case. He is spokesman for the operators in collective bargaining with the complainant. As a result of the advice received, Superior adopted the following format for renewing leaves of absence:

REQUEST FOR EXTENSION OF LEAVE OF ABSENCE

As you are aware, the Advanced Life Support Pilot Program for which I was given a leave of absence has been extended to December 31, 1985. Accordingly, I am requesting an extension of my leave to continue participation in the Program until December 31, 1985.

I understand that I will continue to receive my rate of pay as a Driver Attendant between the Company and my Union. This pay will be based on forty (40) hours pay per week for each week of my participation in the Program. No overtime will be paid to me during my Leave of absence.

I also understand that the premium cost for existing benifit [sic] programs will continue to be paid on my behalf by the Company for the duration of my absence.

My seniority will continue to accumulate during my Leave of absence. Should I return or be returned to the Company for any reason during my Leave of absence, my former job as an Ambulance Driver Attendant will be made available at the rate of pay for such classification.

I understand that I have been granted the privilege of wearing my Company uniform and shoulder badge while on my Leave of absence in the program. Therefore, I accept that I will behave in a manner acceptable to the persons in charge of the Program or any persons to whom they delegate their authority or to whom I am responsible.

it is common ground that the conditions set out in the paragraphs following the first one are the conditions which had applied equally to Superior's employees throughout their initial leaves of absence. These conditions had not been reduced to writing in any uniform way as between Superior and the employees or Superior and the complainant. Ross decided it was necessary to specify the terms of the leave in writing because of the statement in the arbitration award that the collective agreement did not provide details as to the status of employees while on leave, the fact that there had been a dispute over matters which the arbitrator found were not conditions applying to the leave and Ross' belief that there would be a grievance or grievances for more pay for graduates of the Program. He formed his belief from comments he claims were made to him by some of the students and by the complainant's chief steward at Superior.

21. James Ramage, who testified in these proceedings, and Mario Posteraro, who did not, were the first students from Superior to graduate from the Program. Therefore, they became the first employees to be asked to renew their leaves of absence. They were given copies of the leave document several days before December 10, 1984, the date when they were asked to sign it. They went together to Superior's office to get Maynard Ross who, with Ira Ross, is co-owner of Superior. Maynard Ross saw them individually, each in the presence of the chief steward, and asked each if he would sign the leave of absence. Ross terminated their leaves of absence effective immediately when they declined to renew them in the form presented. They returned to their job of driver attendant for Superior. On or about December 18th Evelyn Kenna met Ira Ross at Superior's office and was asked if she was going to renew her leave of absence and continue in the Program. She had been given a copy of the leave of absence format at least a week earlier. Kenna told Ross she would not be continuing the Program because she was not prepared to renew her leave in the form presented. The same result obtained when Mark Nelles and Walter Reiach saw the Rosses on or about January 11th, 1985. The three of them returned to their jobs as driver attendants for Superior. All five employees were reinstated in their jobs with accumulated seniority and at the rates of pay that would have applied had they not been on leave.

22. Ramage stated four reasons to the Board why he refused to renew his leave of absence in the form presented by Superior: the increase for the extended Program offered by Armstrong was not enough; the offer had not been put through the complainant; the leave of absence did not refer to overtime and it had not been seen by the complainant prior to him being asked to sign it. Ramage admitted that Posteraro, who had been the complaint's chief steward at Superior before going on the program, had discussed its terms with Gardner. In cross-examination, Gardner acknowledged that she had advised Posteraro and Ramage to stay out of the Program in the hope that she could get something more than Armstrong had said was to be paid. For Kenna and Nelles the main reason they decided not to sign the leave of absence renewal was peer pressure. They did not want to remain in the Program if their fellow employees who had left it could not get back in. Gardner advised Posteraro and Ramage to file grievances with Superior because of the form and manner in which they were asked to renew their leaves of absence. Each filed an identically worded grievance dated December 10th, the same day their leaves leaves of absence were terminated. Their grievance is '... that the employer has violated the collective agreement by attempting to enter into negotiations with me personally and force me to accept working conditions that are contrary to the Employment Standards Act of Ontario.'. The settlement requested is that the employer:

(1)"... negotiate with the official bargaining agent, the Ontario Public Service Employees Union amendments to the collective agreement to include terms and conditions of my employment as a paramedic.'~.

(2) "... intercede with the Ministry of Health for immediate reinstatement to the Paramedic Program

Superior's reply to both grievances given December 21st at the second step of the grievance procedure was:

"In reply to your grievance dated December 10, 1984, it is our position that there has been no violation of the Collective Agreement.

The Ambulance Service has no control over the content of the Paramedic Program and the hours required of persons who volunteered to participate in this program. The initial leave of absence was predicated on the understanding that the Program would be approximately 48 weeks in duration. The Ministry of Health has now determined that the Program is to be extended for a further period of time. This again is a matter over which we have no control.

There has never been any attempt to negotiate with you regarding the terms of your leave of absence and we never attempted to force you to accept conditions which might be contrary to an employment standard."

23. A copy of Gardner's letter to Armstrong dated December 20th, 1984, in which she claimed he was bargaining with employees for whom the complainant is the exclusive bargaining agent, came into the possession of counsel for Superior herein. It prompted the following letter dated January 8,1985:

"I have been forwarded the copies of your letter to Rick Armstrong dated December 20, 1984 which you sent to B. Uildersma of Fleetwood Ambulance Service and M. Ross of Superior Ambulance Limited.

It would appear that the issues raised in your letter relate to leaves of absence and rates of pay, and would be appropriate for discussion in the course of collective bargaining. I have not yet been advised by my clients of any notice to bargain from your Union and draw your attention to the termination provision of the Collective Agreements in effect at Fleetwood and Superior which require proper notice."

Approximately three weeks later, Gardner wrote as follows to Maynard Ross at Superior:

"I am writing to you concerning the employment of five (5) graduates of the Paramedic Training Course. These individuals perform in a new classification not contemplated by the collective agreement. OPSEU takes the position you must bargain with us to reach a settlement.

In the interim, I have instructed our lawyers to file a Section 89 Complaint under the Labour Relations Act naming Richard Armstrong, Ministry of Health, as an Agent.

OPSEU is very interested in resolving this outstanding issue between us and hope an amicable solution can be reached immediately, to ensure the pilot program continues and the citizens of Hamilton are provided with the best care available."

His response to Gardner was:

"Regarding your letter of Jan. 25/85, Paramedic classification.. [sic] The five persons who have returned from their training course, are now functioning as basic life support driver attendants. Our company does not have a paramedic classification and furthermore does not employ any persons doing the functions of c paramedic. Therefore there is no point in bargaining for such a classification."

24. On consent of the parties, the Board admitted documentary and viva voce evidence of steps taken by Ramage, Kenna and Nelles after the making of this complaint to be re-admitted to the program. The documentary evidence consists of letters addressed from Ramage and Kenna, individually, to counsel for Superior, from Kenna to Gardner and Superior and from Nelles to Armstrong. The viva voce evidence was with respect to a meeting Kenna and Nelles had with Armstrong at their request. All of the letters include a request to be re-admitted to the Program and they express their individual views as to why they were removed (their term) from the program, their sense that they were the victims of the parties and some of the parties' representatives having given a higher priority to their own objectives than those of the Program and the participants, and their feelings of frustration and helplessness over the parties' inability to resolve the issues between them.

25. The complainant has alleged that Superior and Armstrong have violated sections 66 and 67 of the Act. It alleges that students in the Program were threatened with removal or were removed from the Program as punishment for having exercised their rights under the Act contrary to subsection (a) and (c) of section 66. The particulars alleged are that Armstrong personally and on behalf of Superior told students remaining in the Program that former students who had refused terms of leave of absence offered by Armstrong and Superior would not be allowed to return to the Program; that Maynard Ross caused three of Superior's employees who were graduates of the Program to be removed from it because they refused to engage in private bargaining with him about the terms of continuing in the Program; and that Armstrong and Erlenbusch, personally and on ipehalf of Superior, acted as alleged supra at item (6) of paragraph 4 in order to punish two of Superior's employees for having exercised their rights under the Act. Complainant counsel did not pursue the alleged violations of section 66 in his final argument and the evidence before the Board simply does not support the allegations. Therefore the complaint insofar as it relates to section 66 of the Act is dismissed.

26. The parties made full submissions on the issue of whether there has been any violation of section 67(1) of the Act, whether by Superior acting alone or Armstrong acting personally or on behalf of Superior. The Board has reviewed and weighed their submissions, but will not attempt herein to detail their arguments.

27. The main thrust of complainant counsel's submissions was that, when employees are represented in collective bargaining by a trade union, it is settled law that there cannot be private contracts of employment between the employer and its employees respecting any matters falling within the purview of the union's bargaining rights. Syndicat Catholique Des Employes de Magazins de Quebec, Inc., v. Compagnie Paquet Ltee., 1959 CanLII 51 (SCC), [1959] 18 D.L.R. (2d) 346; McGavin Toastmaster v. Ainscough, 1975 CanLII 9 (SCC), [1975] 5 W.W.R. 444. Further, that principle is incorporated in and extended by the prohibition in section 67(1) against individual bargaining, all of which is in keeping with the concept of exclusivity of bargaining rights held by a trade union, an exclusivity which is protected by other sections which enforce the recognition of those rights (section 15) and prohibit interference with the exercise of those rights (section 64). Section 67(1), in counsel's view, prohibits private or individual bargaining by an employer with any of its employees for whom a trade union has exclusive bargaining rights on any matters which can be the subject of collective bargaining, whether or not they are the subject of a collective agreement between the employer and the trade union. According to counsel the ingredients of individual, direct bargaining are offer and acceptance (or rejection) and, in the instant case, if those two functions lay between Superior and/or Armstrong on the one hand, and Superior's employees on the other, there is direct bargaining. Counsel argues that those ingredients were present when Superior sought to have the five employees renew their leaves of absence in the format presented by the employer, and when Armstrong, in meetings with the employees on November 9 and December 20, 1984, and January 7, 1985, made the offer of a five per cent increase and payment for overtime and work on statutory holidays to graduates who stayed in the Program. When Armstrong made these offers he was acting outside of the Ministry's purpose and, therefore, outside of the protection of Crown immunity from being bound by the Act or having it apply to Crown employees, agents or servants. Counsel submits that Armstrong was also acting for Superior because, at the very least, Superior was aware that he was making offers to its employees and did nothing at any time to disclaim his acts. Therefore, counsel argues, Superior in its own right and Armstrong on his own behalf and on behalf of Superior bargained directly with Superior's employees for whom the complainant is the exclusive bargaining agent in violation of section 67(1).

28. The purpose of section 67(1) of the Act was discussed in the Board's decision in A. N. Shaw Restoration Ltd., [1978] OLRB Rep. May 393, at paragraph 17 as follows:

"To what extent can an employer communicate with its employees during the negotiating process? The scheme of the Act contemplates that the acquisition of bargaining rights by a union carries with it an exclusive license to bargain on behalf of the employees in the bargaining unit. The exclusivity of the unions [sic] bargaining rights is expressly protected by section 59 [now section 67] This section prohibits employers from bargaining directly with employees represented by a bargaining agent~...".

It is apparent from the first sentence of the paragraph that the Board was dealing with communications directly between the employer and its employees during negotiations. The complainant had alleged that those communications violated various of the unfair labour practices sections of the Act, including what are now sections 15 and 64. The Board discussed in the following terms at paragraph 18 of its decision, the potential peril facing an employer who chooses to engage in such communications:

"18. The existence of this well-established principle of exclusivity of bargaining rights means that employers must be circumspect when communicating with employees represented by a bargaining agent, especially when these communications occur during the course of negotiations. The need for circumspection on the part of employers, however, does not mean that alt communications between employer and employees are prohibited. Section 56 [now section 64] of the Act, prohibiting employer interference with the formation, selection or administration of a trade union or the representation of employees by a trade union, expressly provides that this very general prohibition does not "deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence". Where communications occur between employer and employees during negotiations, the Board must draw a line dividing legitimate freedom of expression from illegal encroachments upon the union's exclusive right to bargain on behalf of the employees. The line is not an easy one to find, and can only be discovered by asking whether such communications in reality represent an attempt to bargain directly with the employees. If employer communications can be characterized in this manner, they must be regarded as unduly influencing employees and, therefore, falling outside the protection provided to freedom of expression in section 56 [now section 64]. Once outside this protected area, such communications can be characterized as a violation of section 59 of the Act, and also a violation of the duty to bargain in good faith if they serve to undermine the viability of the bargaining agent."

29. The question the Board asked itself in that case was whether the employer's communications with its employees can be characterized as an attempt to bargain with them. The Board found at paragraph 22 that the employer, at an early stage of the negotiations, "... had chosen to discuss the issues in dispute more fully with the employees than with their bargaining agent.". It found, in those circumstances, that the employer had been attempting to bargain directly with employees in violation of what is now section 67 of the Act. The Board also found that the employer's conduct "... served to undermine the viability of the complainant as exclusive bargaining agent in violation of section 14 [now section 15] of the Act." Having found those violations, the Board found it unnecessary to decide whether other sections, including section 64 had been breached.

30. The general context of that case, that is direct communications by an employer with his employees during the course of negotiations and the allegation that the communications exceed the employers' "free speech" protection of section 64 and breach that section and section 67 of the Act, is the most usual context in which the Board sees complaints alleging violation of section 67. The Board's decision in American Can Canada Inc., [1983] OLRB Rep. Oct. 1609 was made in a context different from A. N. Shaw, supra, to the extent that the communications between the employer and some of its employees which were alleged to be a violation of sections 64 and 67(1) of the Act, had taken place during the "closed" term of the collective agreement and not during the course of negotiations. The Board in American Can, having referred to paragraph 17 of the A. N. Shaw decision quoted in part, supra, went on to acknowledge the section 67(1) prohibition on employers bargaining directly with employees represented by a union. The Board then found on the facts of the case that the employer had not committed a breach of that prohibition when it communicated directly with the employees.

31. The only factual similarity which the instant case has with either of the two above-referred decisions is, like American Can, that the impugned communications did not take place during the course of negotiations. Apart from that similarity, this complaint is distinguishable on its facts from both decisions.

32. The five employees who are the grievors under the complaint were on leave of absence from their employer, Superior, for the purpose of taking part in the Program. The jobs from which they had taken leave were filled by others. The students no longer performed those jobs. The jobs which they were fulfilling in the Program involved taking classroom courses, clinical training and applying the acquired knowledge and skills to prescribed medical tasks performed in conjunction with the work they had been doing as ambulance driver attendants. This was work which could only be done under medical supervision. Superior had no voice and played no part in the classroom courses, clinical training or practical work experience. It did not determine how many hours the students were to work, when they were to work and did not supervise them or discipline them. Nor, on the evidence before the Board, did Superior set the conditions respecting rates of pay, overtime, shift premium or statutory holidays applicable to the students. Clearly, the students were in work outside of Superior's control. They also were on work outside of the scope of the bargaining unit. The complainant's bargaining rights for the five grievors flow from the collective agreement. Those rights do not extent to the setting of terms and conditions for employment which is beyond the scope of the agreement. Therefore, even if the Board accepts complainant counsel's proposition that Superior's presentation of the terms for renewal of the grievors' leaves of absence is bargaining, insofar as the bargaining was about pay and overtime, conditions, for example, applicable to them as students in the Program, it was not bargaining about conditions coming within the sphere of the complainant's bargaining rights. Therefore it would not be a breach of section 67(1). The same cannot be said for the conditions respecting the accumulation of seniority while on leave and the guarantee of returning to the jobs from which they took leave. Those are conditions which effect both the terms of the collective agreement and rights under the agreement of other employees in the bargaining unit. They are not conditions about which Superior can take unilateral action. Thus were the Board to find that Superior had bargained with the grievors about those conditions, absent consent of the complainant, that bargaining would be in violation of section 67(1).

33. Was Superior bargaining with the grievors when it presented them with terms and conditions in writing for requesting and authorizing the renewal of their leaves of absence? The Board thinks not. It was common ground between Superior and the complainant that the terms and conditions spelled out in the leave renewal document were terms and conditions which had applied during the initial leaves of absence. While the evidence is unclear as to precisely how the complainant and Superior arrived at those terms, the Board is satisfied from the evidence that both parties understood that those were the terms and the conditions which had applied to the grievors during their initial leaves of absence as students in the Program, and the Board so finds. Therefore Superior was simply presenting to the employees terms and conditions for leaves of absence which the complainant had accepted for almost a year. In these circumstances, even if the grievors had signed the requests to renew their leaves of absence, the facts are that no terms or conditions coming within the scope of the complainant's bargaining rights and Superior's bargaining obligations, for example seniority and job protection, would have been altered. There is no evidence that the complainant had sought to bargain with Superior to amend those kinds of terms and conditions for the extended program. So it cannot be said that Superior was making a counter-offer to employees about a bargaining proposal from the complainant. In all of these circumstances, the Board finds that, when Superior presented to the five grievors the terms and conditions for renewing these leaves of absence, it was presenting in written form terms and conditions which had been accepted earlier by the complainant. Superior's conduct was not unlike that of an employer who defines for an employee particular terms and conditions of employment contained in a collective agreement which apply to the employee. Presenting such information to an employee is not bargaining. As a consequence, the Board concludes that Superior did not attempt to bargain directly with the grievors either rates of pay or conditions for leave of absence and did not violate section 67(1) of the Act.

34. With respect to Armstrong's actions, it is patently clear to the Board from the facts of the case that, when he met with students in the Program twice in November and once in each of December and January, he was dealing with the extension of the Program and the conditions which were to apply to graduates if they continued in the Program. The conditions were that the weekly salary they were receiving, which was calculated at 40 hours times the rate of pay applicable to the driver attendant job from which they were on leave, was to be augmented by five per cent and that they would be compensated for overtime and for work on statutory holidays. He told them that the funds for these additional payments were going to be made available by the Ministry for the Program and that they would be flowed through the ambulance operators in the same manner as the funds for the employees weekly salaries and fringe benefit premiums. Armstrong made it clear that those conditions had application only while the employees remained in the Program. The Board has already found the work performed in the Program by employees on leave from Superior is work outside of the scope of the bargaining unit defined in Superior's collective agreement with the complainant and outside of the complainant's bargaining right. Since the terms and conditions which were the subject matter of Armstrong's meetings with the Program participants were the terms and conditions which would apply to graduates remaining in the Program he was dealing with terms and conditions outside of the scope of the complainant's bargaining rights. The letter dated January 7, 1985, which he sent to Program participants and which is alleged to be an offer in writing to one of Superior's employees, in the Board's view, was simply confirmation of what he had told them at the December 20th meeting were to be the conditions available for graduates who continued in the Program. Even were the Board to characterize the letter, as the complainant has, as "... an offer in writing...", it would not be an offer of any terms or conditions within the scope of the complainant's bargaining rights. Therefore it cannot be said that Armstrong was bargaining directly with Superior's employees, whether on his own behalf or on behalf of Superior, contrary to the provisions of section 67(1) of the Act.

35. In summary and in conclusion, for all of the reasons given above, the Board finds on the facts of this complaint that the respondents Superior Ambulance Limited, R. J. Armstrong and Al Erlenbusch have not violated sections 66 and 67(1) of the Act. In the result, the complaint is dismissed.

CONCURRING OPINION OF BOARD MEMBERS J. P. WILSON AND H. KOBRYN;

1, We concur with the findings of fact and conclusions set out in the decision. We remain concerned, however, with the impact on the employees who participated in the program, particularly the five grievors, resulting from the way in which the parties and the Ministry, through their respective representatives, dealt with the labour relations problems that arose during the Program. We are especially concerned that the five grievors may have to pay up to $500 as their share of the cost to qualify for re-admission to the Program.

2, It seems to us from the evidence which came before the Board and the facts set out in the decision that the complainant and the Ministry, through their respective representatives, became so focussed on pursuing their own objectives and protecting their own interests that they lost sight of the interests and concerns of the employees who were participating in the Program and those who had left the Program and wanted to return to it. There is no doubt on the evidence that the Program needed the driver attendants if it was to be an effective test of Advanced Life Support services in the Hamilton area. Nor is there any doubt that the five grievors wanted to be part of that test. A greater willingness by the parties and the Ministry to discuss the problems and seek accommodations for them, and less of an inclination to take and defend positions which seem to us to have derived more from the general relationship between the complainant and the Ministry than from their relationships vis a vis the Program alone, might have avoided the predicament in which the five grievors found themselves.

3. In these circumstances, we think it would be a substantial injustice to the five grievors if they have to bear any of the costs of getting re-admitted to the Program.