Cement, Lime, Gypsum and Allied Workers Division of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers and its Local 576 v. Hamilton Automatic Vending Company Limited, 1988 CanLII 3587

[1989] OLRB Rep. March 248

1908-88-U Cement, Lime, Gypsum and Allied Workers Division of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers and its Local 576, Complainants v. Hamilton Automatic Vending Company Limited, Respondent

BEFORE: Owen V. Gray, Vice-Chair, and Board Members G. O. Shamanski and E. G. Theobald.

APPEARANCES: Michael A. Church, Felicia Cochrane, Joan Gilchrist and Denise Mayers for the complainant; no one for the respondent.

DECISION OF THE VICE-CHAIR, OWEN V, GRAY AND BOARD MEMBER E. G. THEOBALD; March 2, 1989

1The complainant international union holds bargaining rights for a unit of employees of the respondent. Its Local 576 is involved in the administration of those rights, including collective bargaining and administration of collective agreements. The respondent ("HAVCO") supplies the food to industrial plants by operating food trucks, vending machines, food "stations" and at least one cafeteria. Its major client is Dofasco in Hamilton.

2The relationship between the applicant and respondent was recently the subject of a comprehensive unfair labour practice complaint in Board File 0577-88-U. Following five days of hearing in October 1988, the Board (differently constituted) on February 8, 1989 released a decision ("the Abella panel decision") finding that the respondent had "bargained in bad faith, undermined, interfered with, discriminated against, and intimidated the union and its members" and had therefore violated sections 15, 64, 66, 67, 70 and 79 of the Act. It determined that there had been "a deliberate campaign of harassment against the union designed to undermine its authority, its members, and the bargaining process". After the respondent's Vice-President, Patricia Sanderson, had been put in charge of its labour relations in 1984, the Board concluded, she had "embarked on a successful campaign to undermine if not eliminate the union" by various means, which included taking an "intractable, technical, unreasonable, and litigious stand on virtually every union request or position". To the extent they are relevant to our understanding and disposition of the complaints before us, the complainants ask that we treat the findings in the Abella panel's decision as fact for the purpose of these proceedings. We accept that we may properly take into account findings of fact made by another panel with respect to issues put squarely before that panel in another proceeding involving the same parties: see Tandy Electronics Ltd. (Radio Shack) v. United Steelworkers of America, et al. (1980), 80 CLLC ¶14,017 (Ont. Div. Ct.).

3This complaint was filed on November 9, 1988. It deals with events which occurred during and immediately following the hearings in Board File 0577-88-U. Notice of the complaint was mailed to the respondent on November 15, 1988. Notice that the hearing of the complaint would take place on February 22 and 23, 1989 was mailed to the respondent on January 23, 1989. By letter dated January 25, 1989, the respondent requested that the hearing be rescheduled to accommodate the vacation plans of the person by whom it wished to be represented at hearing. By letter dated January 31, 1989, the Registrar advised the respondent of the Board's practice that "a party seeking an adjournment of a scheduled hearing must obtain the consent of all parties to the proceeding, otherwise such requests must be made before the panel hearing the case." No one was in attendance on behalf of the respondent on February 22, 1989 at the time and place appointed for hearing, nor after the usual half hour wait.

4In view of the failure of the respondent corporation to send anyone to the hearing, counsel for the complainant drew our attention to the well known jurisprudence with respect to adjournment of Board proceedings, as set out in such decisions as Osgood Floor Coverings Limited, [1983] OLRB Rep. June 936, R. v. Ontario Labour Relations Board ex parte Nick Masney Hotels Ltd. 1970 CanLII 478 (ON CA), [1970], 13 D.L.R. (3d) 289 (Ont. C.A.), and Re Flamboro Downs Holdings Ltd. and Teamsters Local 879 1979 CanLII 1669 (ON HCJ), [1979], 24 O.R. (2d) 400 (Ont. Div. Ct.). We note that applicants for a contested adjournment are expected to attend before the hearing panel in person or by representative to argue the application and to answer the kinds of questions which inevitably arise in an application for adjournment of the sort contemplated by the letters sent to the Registrar by the respondent. No one appeared before us to make any application for adjournment. Furthermore, an application based solely on the representations set out in the respondent's letters would have failed. We had no difficulty with the complainant's request that the hearing proceed in the absence of the respondent.

5It is apparent from the Abella panel's decision and the pleadings in Board File 0577-88-U that one of the major points of contention between the parties was the use by the respondent of persons from an employment agency or agencies to perform "bargaining unit work". The respondent refused to treat these persons as employees covered by the collective agreement it had negotiated with the complainants. Denise Mayers was one such person. An agency referred to in evidence as "Olsten's" sent her to work at HAVCO in about February of 1988. She worked as an attendant at various of the "stations" operated by HAVCO. Other such stations were staffed by persons HAVCO acknowledged to be its employees. She was supervised by a HAVCO supervisor, John Furber. About two weeks after she arrived to work at HAVCO, Mr. Furber asked her to fill in a HAVCO employment application, which she did. She received instructions as to where she was to work and what she was to do either from Mr. Furber or from another HAVCO supervisor, Tim Flaherty. Mr. Furber was responsible for verifying her hours worked. Ms. Mayers was required to and did wear a HAVCO uniform. The work she did was the same as work performed by employees whom HAVCO was prepared to treat as covered by the collective agreement with the complainants. Her paycheque came from Olsten's. Her hourly rate of pay was less than the rate provided which the collective agreement required the respondent to pay its attendants. After she had been working at HAVCO for about six months, Paul Sanderson, HAVCO'S President, came to her work station and introduced himself. He told her she was doing a good job. In about September she started asking for more hours of work. Mr. Furber told her that things were picking up and she would undoubtedly be getting more hours. She also sought a raise in pay. HAVCO told her to speak to Olsten's. Olsten's told her to speak to HAVCO. Neither dealt with her request.

6On or about October 12, 1988, Ms. Mayers decided to and did become a member of the complainants. HAVCO was at that time refusing to recognize any obligation to deduct union dues from moneys paid for workers supplied by agencies. It would only do so with the written authorization of the worker. Accordingly, the union delivered to HAVCO a document Ms. Mayers signed, authorizing deduction from her pay and remission to the union of union dues. When Ms. Mayers went to Olsten's on about October 21,1988 to pick up her paycheque, a copy of that dues deduction authorization was on the desk in front of the person to whom she spoke. That Olsten representative then said to her, "I think you took the wrong approach; you could have had a long-term relationship with this company." She went to work the following Monday, as usual. Near the end of her shift, a more junior person obtained through the same agency came by her station to say she would be working there the following day. When Ms. Mayers arrived home after work, she received a telephone call from the representative at Olsten's telling her that HAVCO had no further use for her services.

7It is apparent from the reply filed in this matter that the respondent labours under the illusion that if it obtains workers from an employment agency and has the agency pay those workers their wages, the workers will not be its employees for the purpose of its collective agreement with the complainant. It refers to a provision in the collective agreement recognizing its right to "subcontract" bargaining unit work if its so doing does not result in loss of employment by existing bargaining unit employees. The decisions are legion that resort to such a clause can only be had if the persons who perform the allegedly "subcontracted" work are in substance the employees of the subcontractor and not of the employer bound by the collective agreement. The drawer of a worker's paycheque is not necessarily her employer in substance. Identification of the true employer of a worker in these circumstances has been the subject of numerous decisions. Reference may be made to York Condominium Corporation, [1977] OLRB Rep. Oct. 642, Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538, Kennedy Lodge Inc., [1984] OLRB Rep. July 931, K-Mart Canada Limited, [1983] OLRB Rep. May 649, Riverdale Hospital, (1974) 1974 CanLII 2341 (ON LA), 7 L.A.C (2d) 40 (Schiff), Short v. J. W. Henderson, Limited, [1946] S.C. 24 (H.L.) and Meyer v. J. P. Conrad Lavigne Ltd., 1979 CanLII 2088 (ON CA), [1980], 27 O.R. (2d) 129 (Ont. C.A.).

8Whether the employment of Denise Mayers is examined from the classic "control" or "four-fold" tests or the more recent "organization test" (see Meyer v. J. P. Conrad Levigne, supra at pages 132 and 133), Ms. Mayers was undoubtedly an employee of HAVCO both for common law purposes and, more importantly, for the purpose of the Labour Relations Act and any collective agreement to which that Act applies. When HAVCO told Olsten's that it had no further use for Ms. Mayer's services, it was terminating her employment. The complainants allege HAVCO did this because Ms. Mayers had indicated her support for the union. They say in their complaint that Ms. Mayers had greater seniority than other Olsten referrals who remained employed after she left. The complaint mentions Anne Phillips as an example. The witnesses acknowledge that Anne Phillips had been at HAVCO for longer than Ms. Mayers. They identified another person, known to them as Allison, as someone who was considerably junior to Ms. Mayers and whom they believed had continued to work at HAVCO after Ms. Mayers was terminated.

9As it has been shown that HAVCO terminated Ms. Mayers' employment, subsection 89(5) of the Act places the burden of proof with respect to HAVCO'S motivation on HAVCO. Having failed to attend the Board's hearing or give any evidence with respect to that motivation, HAVCO has failed to discharge that burden. In those circumstances, the complainant need not affirmatively prove anti-union motivation, nor need it negative an argument about seniority which was not presented by the respondent at hearing. Bearing in mind subsection 89(5), our finding that she was HAVCO'S employee and the evidence of coincidence in time between HAVCO'S receipt of her dues deduction authorization and its decision to terminate her employment, we find that HAVCO violated sections 64 and 66 of the Act in terminating Ms. Mayers.

10By way of remedy for this breach we will direct that HAVCO forthwith reinstate her to her former employment and compensate her for any losses she may have suffered as a result of the termination in October 1988. We are satisfied not only that Ms. Mayers was an employee of HAVCO but also that her employment was governed by the terms of the expired collective agreement between HAVCO and the complainants. Therefore, her compensation is to be calculated with reference to HAVCO'S obligations under that agreement and her employment is to be governed by those terms for so long as they remain in effect.

11The last collective agreement between HAVCO and the complainants expired at the end of December, 1987. One of the matters dealt with in the Abella panel's decision was the complainants' allegation that the respondent had failed to bargain in good faith with respect to the renewal of that collective agreement. Another was the allegation that the respondent had changed terms and conditions of employment of bargaining unit employees contrary to the "statutory freeze" provisions of subsection 79(1). In this proceeding, the complainants allege that, on the Monday immediately following the conclusion of the Abella panel's hearing in 0577-88-U, the respondent changed the terms and conditions of employment of bargaining unit employees by requiring that they "check in" with the respondent's office when they arrive at their work station and "check out" in the same manner before they leave their work station each day. The evidence presented at our hearing establishes that this is so. Indeed, the respondent has admitted in its reply that it did make such a change. The evidence before us establishes that the respondent had never before imposed such a "check in/check out" requirement, nor had it ever articulated to the complainant the need for such a procedure, either at the bargaining table or otherwise.

12We do not propose to review here the Board's jurisprudence with respect to section 79(1) of the Act. It is enough to observe that generally worded "management rights" provisions of an expired collective agreement are not sufficient to overcome the special restraint imposed on employers by that subsection during the sensitive phase of collective bargaining to which that subsection relates. We are satisfied that the employer's conduct violates subsection 79(1) and that the appropriate remedy is to require that the respondent revert to and maintain its previous practice for so long as it is legally obliged to do so. For the guidance of the respondent, we note that the expiry of the "freeze" period described in subsection 79(1) would not in itself make a change in this practice lawful. Even after the freeze period expires, a change in terms and conditions of employment may constitute a breach of section 15 of the Act if the change has not first been made the subject of discussion at the bargaining table: see DeVilbiss (Canada) Limited, [1976] OLRB Rep Mar. 49, particularly at paragraph 17.

13At some point before July 13, 1988, the respondent asked the Board to issue summonses directed to Ann Barlowe and Zelma Cochrane returnable at a hearing then scheduled for July 18,1988. Zelma Cochrane and Ann Barlowe were then the Financial Secretary and Recording Secretary, respectively, of the complainant local union. They were and are employees of HAVCO. The summonses required them to bring to the hearing all the books and records of the trade union then in their custody. The respondent caused each of them to be served with the summons addressed to her, together with (in Ms. Cochrane's case, at least) $81.00 on account of conduct money and expenses referable to one day's attendance at hearing.

14The hearing originally scheduled for July 18, 1988 was cancelled. The respondent wrote to the witnesses before that date to advise them of this. When October hearing dates were later established, the respondent wrote to Ms. Cochrane and Ms. Barlowe again to say that "subpoenas already served with conduct money will carry over to the above-mentioned rescheduled dates."

15Zelma Cochrane and Ann Barlowe attended in accordance with the summonses, which had been issued in connection with complaints which the respondent had filed and which were scheduled for hearing for the same days as the union's complaint in Board File 0577-88-U. Although the respondent's complaints were dismissed on the first day of hearing, the respondent took the position that the summonses it had served should be treated as requiring the witnesses' attendance to give evidence at the hearing in Board File 0577-88-U, which continued beyond that first day. Ann Barlowe and Zelma Cochrane accordingly attended on the second and third days of hearing in Board File 0577-88-U. At the end of that third day, the respondent's representative advised the Board and Ann Barlowe that her continued attendance was not required. Zelma Cochrane attended on the fourth day of hearing. At the end of that day, the respondent's representative advised the Board and her that her further attendance was not required.

16The respondent did not provide either Ms. Cochrane or Ms. Barlowe with any conduct money with respect to their second and subsequent days of required attendance at the Board's hearings. The evidence before us is that the union raised with the Abella panel the questions of the respondent's continuing obligation to pay conduct money with respect to the attendance of these two women and that the panel made it clear that such payment was necessary. Despite at least one request made after the conclusion of the hearing, neither woman has been paid the conduct money to which she is entitled with respect to her second and subsequent days of attendance in accordance with the summons served upon her by the respondent. The complainant trade union say that the respondent's failure to pay these women conduct money for the days on which they lost earnings by complying with the summonses the responded served on them is an unfair labour practice which violates the Act because it amounts to a financial penalty imposed upon them by the respondent by reason of their connection with and support of the complainant trade unions, in furtherance of the respondent's overall scheme to destroy the complainant trade unions financially and otherwise.

17In the reply filed to this complaint on November 28, 1988, the respondent had this to say about the union's claim concerning non-payment of conduct money:

It is interesting to note that the union is complaining that Ms. Barlowe and Cochrane were only paid conduct and travel money for one day.

Our previous experience in this regard was during an arbitration hearing on August 20th, 1986, where union subpoenaed witness, one Joanne Poirier, was not paid conduct or any other kind of money by the union.

Mrs. Poiner successfully sued the union in small claims court for the money.

Of course, if we owe Barlowe or Cochrane any money we will pay it.

It would have been useful to know in the Poirier case that failure to pay subpoena money is the basis for a section 89 offence under the Act. However, the Small Claims Court ruled that they did have jurisdiction in the matter.

There can be no doubt whatsoever that the respondent owed each of these women the proper amount of conduct money for each day on which it required them to attend the Board's hearings in accordance with the summons which it had obtained from the Board and served upon them. It was obliged to tender the first day's conduct money with the summons when it was served. It was obliged to pay conduct money for subsequent days of attendance no later than the day on which that attendance occurred. By February 22, 1989, the respondent had not paid the amounts it owed on account of conduct money.

18The union's allegation about the respondent's motivation for its failure to pay conduct money is not improbable in the circumstances. It is~ moreover, the sort of allegation for which subsection 89(5) requires an answer. Nevertheless, we are troubled by the invitation to address payment of conduct money from the perspective of the unfair labour practice sections of the Labour Relations Act, particularly when the only remedy claimed is an order that the respondent pay the conduct money it owes. The proper administration of the Act requires that the parties to proceedings before the Board be in a position to present their case. The Labour Relations Act and the Statutory Powers Procedure Act both give the Board the power to compel the attendance of witnesses at the request of a party to proceedings in pursuance of that party's right to a fair and thorough hearing of matters relevant to the issues before the Board. Only with great reluctance would we enter into any consideration whether the use of those processes constituted an unfair labour practice. While what has happened here may well be an unfair labour practice, we would not want this employer's perverse and immature approach to labour relations to give rise to a new form of unfair labour practice inquiry with such potentially negative consequences for proceedings with less pathological origins. As the complainants ask by way of remedy for the alleged unfair labour practice no more than that the respondent be made to comply with its existing legal obligation to pay conduct money, we are bound to consider whether we have the authority to direct payment without making a finding that an unfair labour practice has been committed.

19Under the Labour Relations Act, the Board has the power to summon and enforce the attendance of witnesses and compel them to give evidence under oath and to produce such documents and things as the Board may require. The Board also has the power to determine its own practice and procedure. The Board's power to summons witnesses and compel their testimony is repeated in section 12 of the Statutory Powers Procedure Act which, in subsection 2, subparagraph (c), adds the requirement that a summons issued by the Board

shall be served personally on the person summoned who shall be paid the like fees and allowances for his attendance as a witness before the tribunal as are paid for the attendance of a witness summoned to attend before the Supreme Court.

Where a summons is issued by this Board at the request of one of the parties to proceedings before it, that party is expected to effect service and pay conduct money in accordance with this requirement. It is on that basis that parties are provided with summonses at their request. Although neither the Labour Relations Act nor the Statutory Powers Procedure Act ("the SPPA") expressly confers on the Board the power to enforce payment of conduct money, it seems to us that this must be a concomitant of the express power to summons and compel attendance of witnesses, particularly in circumstances where natural justice requires that that power be exercised on behalf of and at the request of parties to proceedings. It is part of the Board's process that conduct money be paid by the parties who request and effect service of a summons. It is arguably an abuse of the Board's process to make use of a summons without discharging the corresponding obligation with respect to conduct money.

20Subsection 23(1) of the SPPA provides:

A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

If the power to enforce payment of conduct money by a person who uses a Board's summons is not implicit in the Board's powers to determine its own practice and procedure and to summons and compel the attendance of witnesses, then it seems to us that such a power must flow from subsection 23(1) of the Statutory Powers Procedure Act. We are in no doubt of the potential for abuse of the Board's processes by the use of its summonses. A finding that such abuse has occurred is not a prerequisite to the exercise of our power under subsection 23(1) of the SPPA. In order to ensure that such an abuse has not and does not occur in relation to the Board's proceedings, we consider it appropriate for the Board to direct that the conduct money to which Zelma Cochrane and Ann Barlowe became entitled as a result of the respondent's use of the Board's summons in File 0577-88-U be paid by the respondent forthwith, together with interest thereon. While the panel before whom a witness is summonsed would ordinarily be the best situated to deal with the matter of conduct money, we are satisfied in this case that a referral of this particular issue to the original panel at this point would cause undue delay and would, furthermore, be entirely unnecessary, as we have before us a sufficient basis on which to deal with it ourselves.

21The trade union argues that a "make whole remedy" should, in this case at least, include an order requiring the respondent to pay all legal and other expenses incurred by the complainants in initiating and pursuing this complaint. The panel which heard the complaint in Board File 0577-88-U had before it evidence of the effect on the local trade union's treasury of the respondent's litigious approach to labour relations. The complainants put evidence before us of the nearly exhausted state of that treasury. While we are not at all unsympathetic to the local's plight, claims for "costs" - that is, that the losing party pay the winners expenses directly related to the litigation before the Board of the proceeding in which the claim is made - have been resisted by the Board for reasons of principle from which the facts of this case do not appear to warrant departure: see Radio Shack, [1979] OLRB Rep. Dec. 1220 and Silknit Limited, [1983] OLRB Rep. Nov. 1913 at paragraphs 7, 8 and 9. The underlying premise of arguments of the sort made by the union in this case is that there are some recidivist wrongdoers who show themselves undeterred by compensatory remedies which merely require that they do in the end what they ought to have done in the beginning. The answer to this is that while the availability of compensatory remedies may be a deterrent to some potential wrongdoers, deterrence is not the purpose of a compensatory remedy. However worthy a goal deterrence may be, it should not be pursued in the guise of compensatory remedies. There are other ways to deal with continued, contumacious disregard of legal obligations.

22Apart from being an occasion for exercise by the Board of its remedial jurisdiction, the commission of an unfair labour practice is also a crime for which the wrongdoer may, with leave of the Board, be prosecuted in the criminal courts, where deterrence of continued wrongdoing by the offender and others is one of the objects of sentencing. Deterrence is also the object of proceedings to punish for contempt those who refuse to comply with a decision of this Board; see subsection 89(6) of the Act and section 13 of the Statutory Powers Procedure Act. Where the Board finds that an employer has violated the Act, it has the power to order that it cease violating the Act. A failure to abide by that order could be the subject of proceedings for contempt. In this case, we order that the respondent cease violating the sections of the Act which we have found it breached. We do so not as a matter of form, but to ensure that the respondent is exposed to more than simple liability to rectify its wrongdoing if it continues to breach the Act.

23The complainants have expressly asked for:

(a) An order directing the Respondent to distribute a decision of the Board signed by appropriate officials of the Respondent to all employees of the Respondent represented by the Complainant.

(b) An order directing the Respondent to post in conspicuous locations a Board notice to all employees of the Respondent appropriate to the circumstances.

The object of remedies of this sort was addressed by the then Chair of this Board in Valdi Inc., [1980] OLRB Rep. Aug. 1254 at paragraph 24:

One of the unique remedies developed by labour relations agencies to respond to the psychological impact of unfair labour practices requires the offender, whether employer or union, to communicate to employees affected by an unfair labour practice that it has been found guilty of violating statutory labour laws and that it will henceforth conform to their requirements. This remedy, in the usual form of a posting of a notice for sixty days in a conspicuous location(s) in the workplace, was first developed by the Board in Radio Shack, supra, although its origin in labour law is ancient. See for example: The Falk Corporation (1940), 308 U.S. 453, 5 LRRM 677 at p. 682; Bradford Dyeing Association (1940), 310 U.S. 318, 6 LRRM 703 at p. 715. In more exceptional cases the posting of a notice will be insufficient and mailing, publishing, and reading of notices may be directed in order to redress the impact of unfair labour practices in question. See Radio Shack, supra, at p. 1270. See also Comment, Labor Remedies (1968), 54 Virginia L. Rev. 38 at p. 48. And more generally, Comment, NLRB Remedies - Moving Into The Jet Age (1975), 27 Baylor L. Rev. 292. However, we believe the posting of notices should not be confined to exceptional cases because isolated violations of the Act have an undoubted and significant psychological impact on labour relations and the attainment of the statute's objectives. Making employees aware of the fact that an errant employer or trade union cannot violate the Act and that the employee has meaningful legal rights is vital to the success of The Labour Relations Act. Admittedly, the effect of the posting requirement often will be difficult to evaluate but this is no reason for in action. Surely, for example, the fear for job security will be lessened with the realization that someone more authoritative than the employer has a voice in determining what he can do to those who support a trade union and that someone more powerful than a trade union will protect those who lawfully oppose it. Even a belated notice is better than none, if it helps to dispel any fears, confusion or ill-will created by a situation which has been equitably resolved.

It can always be said that a wrongdoer's displeasure at being subjected to a remedial order may have a negative impact on its labour relations with the party who sought and obtained the order. It does not follow from that or the preamble to the Act that the Board should not exercise its remedial authority at the request of one of the parties to a collective bargaining relationship when an unfair labour practice is committed by the other. We believe a "posting" remedy is likely to serve a useful purpose here, even though this respondent is likely to be displeased by it.

24Accordingly,

a) we find and declare that the respondent violated the Labour Relations Act ("the Act") by

i) on October 24, 1988, terminating the employment of Denise Mayers, who we find was then its employee within the meaning of the Act~ and

ii) from and after October 24, 1988, during the period described in subsection 79(1) of the Act changing the terms and conditions of employees by requiring that they check in and out by telephone.

b) we find that the respondent has failed to pay Anne Barlowe and Zelma Cochrane conduct money to which they are entitled as a result of the respondent's having caused them to be summonsed as witnesses to the hearing in Board File No. 0577-88-U;

c) we direct that the respondent

i) cease and desist violating sections 64, 66 and 79 of the Labour Relations Act;

ii) pay Anne Barlowe $162.00 for conduct money, plus interest thereon for the period from October 6, 1988 to the date of payment;

iii) pay Zelma Cochrane $243.00 for conduct money, plus interest thereon for the period from October 20, 1988 to the date of payment;

iv) forthwith reinstate Denise Mayers to employment, which employment shall be in accordance with the terms of the most recent collective agreement between the parties for so long as those terms remain in effect;

v) compensate Denise Mayers for such lost wages and benefits and other losses she has suffered as a result of the termination of her employment, including interest, such losses to be assessed on the basis that the employment from which she was discharged was employment to which the aforesaid cole lective agreement terms when were then applicable;

vi) at its own expense, forthwith cause enlarged copies of the attached Notice to Employees marked "Appendix" to be signed by its President and Vice-President and posted in conspicuous places where bargaining unit employees are employed, including all places where notices to such employees are customarily posted, and keep these notices posted for 60 consecutive working days;

vii) take reasonable steps to ensure that the aforesaid notices are not altered, defaced or covered by any other material;

viii) provide reasonable physical access to the premises where the aforesaid notices are posted to two representatives of the complainants (who need not be employees of the respondent) from time to time, so that they may satisfy themselves that this posting requirement has been and is being complied with;

ix) at its own expense, forthwith make copies of this decision and send one by prepaid first class mails without accompanying comment, to each person employed or engaged in its business on or at any time after October 24, 1988, including all those so employed or engaged at any such time through Olsten or any other employment or referral agency;

x) discontinue its requirement that employees check in and out by telephone until a new collective agreement is made and it is in a position to lawfully change the terms and conditions of employment of those represented by the complainant.

Interest payable by the respondent is to be calculated by reference to Practice Note 13. The Board remains seized with this complaint and will determine the amounts payable by the respondent if the parties are unable to agree on them.

DECISION OF BOARD MEMBER G. O. SHAMANSKI; March 2, 1989, as amended March 7, 1989

1. I concur with everything in my colleagues' decision except paragraph 23 and the corresponding orders in subparagraph 24(c), items (vi), (vii) and (viii).

2. In principle I consider that requiring a party to sign and post a notice to employees is humiliating and degrading and does not serve any useful purpose in the furtherance of harmonious relations between employers and employees. A directive of this nature will antagonize an already very unhealthy ongoing relationship that the parties have experienced in the past. I am further of the opinion that issuing a direction of this nature is not in keeping with the intent of the preamble of the Labour Relations Act.

I concur in the requirement that the employer send copies of this decision to all bargaining unit employees.

3. For these reasons I would not accede to the union's request to have the employer post a notice of this nature.

Appendix

Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

HE HAVE ISSUED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD MADE AFTER A HEARING IN WHICH IT FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT

ON OCTOBER 24, 1988, BY TERMINATING THE EMPLOYMENT OF DENISE MAYERS, WHOM THE BOARD FOUND WAS THEN AN EMPLOYEE OF HAMILTON AUTOMATIC VENDING COMPANY LIMITED WITHIN THE MEANING OF THE ACT, AND

FROM AND AFTER OCTOBER 24, 1988, DURING THE PERIOD DESCRIBED IN SUBSECTION 79(1) OF THE ACT, BY CHANGING THE TERMS AND CONDITIONS OF EMPLOYEES BY REQUIIRING THAT THEY CHECK IN AND OUT BY TELEPHONE.

THE BOARD HAS ORDERED US TO INFORM OUR EMPLOYEES OF THEIR RIGHTS.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

To ORGANIZE THEMSELVES;

To FORM, JOIN OR HELP UNIONS TO BARGAIN AS A GROUP, THROUGH A

REPRESENTATIVE OF THEIR OWN CHOOSING;

To ACT TOGETHER FOR COLLECTIVE BARGAIRING;

To REFUSE TO DO ANY AND ALL OF THOSE THINGS.

HE ASSURE ALL OF OUR EMPLOYEES THAT:

WE HILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS.

WE WILL FORTHWITH REINSTATE DENISE MAYERS TO EMPLOYMENT, WHICH EMPLOYMENT SHALL BE IN ACCORDANCE WITH THE TERMS OF THE MOST RECENT COLLECTIVE AGREEMENT BETWEEN THE PARTIES FOR SO LONG AS THOSE TERMS REMAIN IN EFFECT.

WE WILL COMPENSATE DENISE MAYERS FOR ALL LOST WAGES AND OTHER LOSSES SHE HAS SUFFERED AS A RESULT OF THE TERMINATION OF HER EMPLOYMENT, INCLUDING INTEREST, SUCH LOSSES TO BE ASSESSED ON THE BASIS THAT THE EMPLOYMERT FROM WHICH SHE WAS DISCHARGED WAS EMPLOYMENT TO WHICH THE AFORESAID COLLECTIVE AGREEMENT TERMS WERE THEN APPLICABLE.

WE WILL DISCONTINUE OUR REQUIREMENT THAT EMPLOYEES CHECK IN AND OUT BY TELEPHONE.

HAMILTON AUTOMATIC VENDING COMPANY LIMITED

PER:_______________________________________

PRESIDENT

PER:______________________________________

VICE—PRESIDERT

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

This notice must remain posted for 60 consecutive working days.