Canadian Union of Public Employees, Local 1001 v. University of Windsor, 1988 CanLII 3612

[1988] OLRB Rep. December 1351

1850-87-U; 2888-87-U Canadian Union of Public Employees, Local 1001, Complainant v. University of Windsor, Respondent v. Service Employees Union, Local 210, Intervener; Susan Dufour, Complainant v. Canadian Union of Public Employees, Local Union Number 1001, Respondent

BEFORE: S. A. Tacon, Vice-Chair, and Board Members W. A. Correll and A. Hershkovitz.

APPEARANCES: Michael A. Church, Nick Kokic, T. Robinson and James Hart for the Canadian

Union of Public Employees, Local 1001; George W. King, Dave Wylupek and Frank Eastham for

the University of Windsor; Ken Brown and David Robert for the Service Employees Union, Local

210; Brian P. Nolan and Susan Dufour for the complainant in Board File 2888-87-U.

DECISION OF THE BOARD; November 29, 1988

1. Board File 1850-87-U is a complaint pursuant to section 89 of the Labour Relations Act

in which the complainant trade union alleges that the respondent university violated sections 15, 64, 66, 67 and 70 of the Act. That complaint, as originally filed, named Frank Eastham as respondent as well. The complainant withdrew the complaint as against Frank Eastham and, accordingly,

the Board amends the style of cause to reflect that change.

2. Board File No. 2888-87-U is a complaint wherein the complainant (Susan Dufour) asserts that the respondent trade union contravened its duty of fair representation imposed by section 68 of the Act. In an oral ruling which need not be reproduced herein, the Board refused to dismiss the complaint on the grounds sought by the respondent trade union in a preliminary motion, namely, that the complaint disclosed no prima facie violation of the Act and/or the complaint concerned internal union matters outside the jurisdiction of the Board.

3. The Board also heard submissions with respect to whether both complaints should be consolidated or heard together, sequentially or separately. For reasons given at the hearing but which, as well, need not be set out in this decision, the Board held that the complaints would not be formally consolidated for technical reasons relating to issue estoppel and res judicata given that the parties were not identical in each complaint but that the complaints would be heard together. It is useful to note at this point that several other matters which could have been raised as preliminary motions, on agreement, were to be argued at the conclusion of the proceedings. That is, the respondent trade union in the section 68 complaint asserted that the complaint should be dismissed on grounds of timeliness and/or estoppel and/or that the complainant had not exhausted the internal routes for redress. The respondent employer in Board File 1850-87-U contended that complaint should be dismissed for reasons of undue delay.

4. It is next appropriate to clarify the terminology utilized throughout. Board File 1850-87-U is referred to as the "section 89" complaint as distinct from Board File 2888-87-U, the "section 68" complaint. The complainant in Board File 1850-87-U and the respondent in Board File 2888-87-U is the Canadian Union of Public Employees, Local 1001, referred to as the "Union" or "CUPE Local 1001". The respondent in the section 89 complaint is the University of Windsor (the "university"). The complainant in the section 68 complaint is Susan Dufour (referred to as four"). The University also has collective bargaining relationships with the following bargaining agents: S.E.I.U. Local 210, the "intervener" in the section 89 complaint, i.e., the "secretary/clerical unit; CUPE Local 1393, the technicians; CUPE Local 100, the engineers; U.P.G.W.A. Local 1958, the campus police; U.W.F.A., the faculty.

5. Following discussions, the section 68 complaint was adjourned, on agreement, as follows:

Board File 2888-87-U

Labour Relations Act

Complaint under Section 89 of the Act

Between:

Susan Dufour

Complainant

• and -

Canadian Union of Public Employees, Local Union Number 1001

Respondent

The Complainant and the Respondent have agreed to the adjournment of the Section 68 complaint filed by Susan Dufour on the following terms:

1. The hearing of the s. 68 complaint to be adjourned pending the decision of the Board on the original s. 89 complaint filed by CUPE 1001 v. University of Windsor with this panel of the Board to remain seized;

2. If the union is successful in its s. 89 complaint (i.e., a declaration issues that the union may withdraw from the Ad Hoc Committee and bargain pensions separately) the complainant Dufour will withdraw her complaint, and it will not be refiled;

3. If the union is unsuccessful with respect to its s. 89 complaint, the complainant Dufour shall retain the right to request the Board to relist her s. 68 complaint for rehearing. Both parties agree that all their rights and positions, etc. are preserved in such event. Nothing in the agreed statement of facts between the University and the Union shall be binding upon the s. 68 complainant in the event that the Complainant seeks to relist the s. 68 complaint for hearing.

4. If the Board decides that the Union is able to negotiate separately outside of the Ad Hoc Committee, any agreement reached with the University of Windsor shall be subject to the ratification of the membership; furthermore, the Union Executive agrees that any decision to withdraw from the present pension plan will be put to the local membership for an informal vote first. Before such a vote shall be taken the membership shall have the pros and cons of withdrawal explained to them by an independent pension expert.

5. Without prejudice to the position of the parties, the Union Local Executive agrees to address the resolution of the procedural matters within the union local raised in this case.

Dated at Windsor, Ontario, this 27th day of June, 1988.

For the Complainant "Susan Dufour"

Susan Dufour

For the Respondent "Nick Kokic"

Nick Kokic

"Tom Robinson"

Tom Robinson

"James Hart"

James Hart

6. Subsequently, the union and the university reached an agreed statement of facts, reproduced herein:

Board File No.: 1858-87-U

BEFORE:

BETWEEN:

CANADIAN UNION OF PUBLIC EMPLOYEES,

LOCAL UNION 1001

("Complainant")

• and -

UNIVERSITY OF WINDSOR

("Respondent")

AGREED STATEMENT OF FACTS

The parties agree that the following facts and exhibits referred to herein, and positions (as the case may be) shall be placed before the panel assigned to adjudicate the Complaint filed in this case for their consideration and reliance in determining the issues of law and fact in this proceeding.

1. The Complainant, Canadian Union of Public Employees, 1.ocal No. 1001, ("Union") is the certified bargaining agent for all employees of the University of Windsor ("University") save and except certain classes of employees excluded by the recognition clause contained in the collective agreement. (Reference may be made to Article 3.01 of the last collective agreement entered into between the parties -- which has been reproduced at Tab 1 of the Joint Exhibit Book filed by the parties with the Board in this matter). The Union is the successor bargaining agent to the predecessor bargaining agent certified by the Ontario Labour Relations Board in 1966.

2. The Union and University have been parties to a series of collective agreements over many years. The previous collective agreement was effective Nov. 21, 1985 to June 30, 1987. (Tab 1).

3. The Union has approximately 167 members in the employ of the University. This membership includes five (5) university departments; maintenance, custodial, housekeeping, food service, and grounds service. The majority of the membership is male and includes many employees with senior service to the University.

4. The University also has collective bargaining relationships with the following bargaining agents:

(a) 5.E.I.U. Local 210 - (secretary/clerical) approximately 298 members (b) C.U.P.E. Local 1393 - (technicians) approximately 67 members (c) C.U.P.E. Local 100 - (engineers) approximately 16 members (d) U.P.G.W.A. Local 1958 - (campus police) approximately 13 members (e) U.W.F.A. - faculty approximately 500 members

5. The University has a pension plan known as The University of Windsor Employees' Retirement Plan ("E.R.P."). This plan has been reproduced and more particularly described in the materials contained at Tabs 2 and 4 inclusive of the Exhibit Book. Tab 2 is the E.R.P. as amended and restated at July 1, 1977. Tab 3 is the E.R.P. as at July 1, 1985, and the actuarial report as at July 1, 1986 is set out at Tab 4. This plan is a contributory defined benefit pension plan.

6. The E.R.P. also covers approximately 192 non-union administrative personnel (management and excluded employees) below the rank of director.

7. The University of Windsor Faculty Association ("U.W.F.A") members, librarians and some directors are covered by the provisions of a separate pension plan known as the University of Windsor Faculty Association Pension Plan (U.W.F.A.P.P.) This plan is a money purchase plan with a minimum guarantee component. The members of the U.F.W.A. were covered by the E.R.P. until July, 1971, at which time the U.W.F.A.P.P. was established to cover the aforesaid groups. At that time, the E.R.P. was amended to exclude members of the Faculty, employees holding the rank of Department Director, Dean or Vice-President. At the time of the transfer from coverage under the E.R.P. to the U.W.F.A.P.P. the U.W.F.A. had approximately five hundred (500) members. The members of the unions and non-union administrative personnel remaining in the E.R.P. after July 1971 were not affected by the transfer of the individuals covered by the U.W.F.A.P.P. into the new plan referred to above. For the purposes of this hearing, the Board need not be concerned with the operation or the details concerning the U. W.F.A.P.P.

8. Prior to 1984, each of the five (5) bargaining agents whose members were covered by the terms of the E.R.P negotiated separately with the University in respect to any issues concerning amendments to the E.R.P. Each local had a designated pension representative.

9. Very few changes or amendments were effected to the E.R.P. in the years preceding 1984.

10. In 1984, the five (5) bargaining agents whose members were covered by the E.R.P. formed a committee to negotiate with the University in matters pertaining to E.R.P. The University was advised of such intentions by way of five (5) separate but identical letters dated April 9, 1984. These letters have been reproduced at Tab 5. The Committee became known as the Ad Hoc Joint Pension Committee ("Ad Hoc Committee").

11. The Union participated on the Committee through the designated pension representative and local union president representing the local's interest on the Committee.

12. The employee representatives on the Ad Hoc Committee were composed of two (2) representatives from each of the five (5) Unions and two (2) representatives from the non-union administrative personnel covered by the E.R.P. Although the Ad Hoc Committee bargained on pensions jointly in 1984 and 1985, execution and ratification of the negotiated amendments was done separately by each bargaining unit.

13. Commencing in 1984, the University recognized the Ad Hoc Committee and in fact bargained with this Committee on pension issues. A Memorandum of Agreement was executed between the University and each union representative on behalf of their respective local. This memorandum is set out at Tab 6. The terms of such memorandum required separate ratification by each local.

14. The University takes the position that by agreeing to negotiate with the Ad Hoc Committee it gave up its right to bargain issues with respect to pensions separately with each individual trade union. In consideration for surrendering its right to bargain individually with each local union, the University hoped to improve employer-employee relations and benefit its employees with more constructive and beneficial pension improvements.

15. The University did not advise the unions to the above effect and the Union is unaware of any written agreement wherein the University specifically surrendered any right to bargain any issue separately with the unions, including any issue relating to pensions.

16. In 1985, the University again bargained on pension issues with the Ad Hoc Committee. The Memorandum of Agreement in respect to pension issues entered into between the University and the local unions bargaining jointly through the Ad Hoc Committee is set out at Tab 7.

17. At approximately this time, the University and Union entered into the collective agreement referred to in Paragraph Two (2) of this Memorandum (effective Nov. 21, 1985 to June 30, 1987).

18. The Union through its designated pension representative from Nov. 198.5 to Jan. 1987 (Mr. James Hart), and President, participated in the deliberations and workings of the Ad Hoc Committee.

19. In December, 1986, approximately 112 of 167 members of the Union signed a petition demanding the pension plan opened for changes in all areas including retirees. This petition was not presented to the University at any time.

20. The Union takes the position that after participating in the Ad Hoc committee for several years, it had become disenchanted with its experience on the Committee and felt the needs of the Union would be better served outside the Ad Hoc Committee. The Union designated pension representative noted that the Ad Hoc Committee was composed of representatives from non-union administrative personnel who did not have the option of resorting to a strike. In the Union's view, the groups represented by the Ad Hoc Committee had different interests and priorities regarding pension issues. Furthermore, the Union felt that certain other unions represented on the Committee did not honour agreements made within the Committee. The Union felt that certain other unions would not resort to a strike over any issue involving pensions. The Union was concerned because it has the largest group of retirees from amongst the members of the Ad Hoc Committee.

21. At a Union meeting on Jan. 18, 1987, the Union's designated pension representative, Mr. Jim Hart, presented a motion calling for the Union to break away from the Ad Hoc Committee and bargain on the issue of pension improvements separately with the University. This motion was passed by the membership.

22. On February 20. 1987, Mr. Nick Kokic ("Kokic"), President of the Union, wrote to Mr. Frank Eastham ("Eastham"), Director of Human Resources for the University, advising the University that the Union "no longer wished to negotiate [sic] our pension plan, with the joint pension committee." (Tab 8).

23. On February 25, 1987, Eastham wrote to Kokic advising that the University's position was that the bargaining committee for pensions was the Ad Hoc Committee. (Tab 9).

24. The Union, through its newly elected designated pension representative, Mr. Tom Robinson ("Robinson") orally advised the Chairman of the Ad Hoc Committee, Mr. Terry Edwards ("Edwards") as to the Union's decision referred to above in March, 1987. Edwards is an employee of the University of Windsor and is a member of C.U.P.E. Local 1393.

25. The Union served Notice to Bargain for the renewal of the collective agreement on the University on April 13, 1987.

26. The parties thereafter scheduled a series of negotiation meetings to commence on May 4, 1987. On this date, the parties met for the purposes of preliminary discussions and to exchange proposals. The Union's proposals included a reference to the pension l) stating that the Union would table its pension plan amendments at a later date.

27. The parties next scheduled negotiation meetings for June 4, 5, 24 and 26 and July 2 and 3, 1987, respectively. The June 4/87 meeting was subsequently cancelled and another day in June (June 26) was selected.

28. The parties met on June 5, 24, 25 and 26th as scheduled. By this time, the Union had available its pension proposals. The Union attempted to present such proposals to the University. The University refused to accept a copy of the aforesaid proposals for the reasons set out above. The negotiation meetings did not accomplish any significant agreements, as there were a large number of issues outstanding throughout negotiations.

29. On June 26, 1987, at the conclusion of the negotiating sessions, Mr. Bill Dingman, C.U.P.E. staff representative, advised the University that the Union intended to request the appointment of a conciliation officer from the Minister of Labour. The Union had attempted unsuccessfully on this date to discuss the issue of pension plan amendments with the University's negotiating committee.

30. On June 29, 1987, Kokic wrote to Dr. Ron lanni ("lanni"), the President of the University of Windsor, complaining about the refusal of the University Negotiating Committee to accept the Union's pension proposals outside of the Ad Hoc Committee. The Union also alleged that the University was negotiating in bad faith. (Tab 10)

31. On June 30, 1987, the Union forwarded a Request to the Minister for the Appointment of Conciliation Officer.

32. By way of a letter dated June 30, 1987, (received by the Union on July 7, 1987) lanni responded to Kokic's letter of June 29, 1987, urging the Union to participate in pension bargaining through the Ad Hoc Committee. (Tab 11)

33. The parties did not meet on July 2 or 3, 1987, on account of the Request for Appointment of Conciliation Officer referred to above.

34. On July 13, 1987, Kokic wrote to lanni advising, in part, as to the Union's contemplation of proceeding with a complaint to the Ontario Labour Relations Board ("Board"). Kokic also on the same date wrote another letter to Eastham (enclosing a copy of the letter to lanni of same date) requesting a full breakdown of the details of the current pension plan. (Tabs 12 and 13 respectively).

35. On July 14, 1987, the Minister appointed a Conciliation Officer who scheduled a conciliation meeting for Sept. 1, 1987.

36. On Aug. 17, 1987, Kokic wrote and delivered a letter to Edwards advising him that, "I thought we made our position clear regarding the pension. Our Local does no longer wish to negotiate [sic] pension with joint pension negotiating committee." The University subsequently obtained a copy of this letter. (Tab 14).

37. On August 30, 1987, the Union conducted a strike vote of its membership. The lack of progress on the Union's attempts to bargain on pension issues separately was explained to the membership. The strike vote was approved by a substantial majority of the membership who voted at this meeting.

38. On Augnst 31, 1987, Kokic again wrote and delivered a letter to Edwards restating the Union's position. Furthermore, the Union objected to the portion of the proposal introducing the new clause known as 14.03(c). This letter was copied to Eastham. (Tab 15). The proposal has been reproduced at Tab 16.

39. On August 31, 1987, Kokic also wrote to Eastham enclosing a copy of the letter referred to above and restating the Union's position. (Tab 17).

40. On September 1, 1987, the parties met in conciliation with Conciliation Officer Marv Grossman ("Grossman"). At the outset of the meeting, the Union provided Grossman with a copy of the Union's proposals on the pension issue and asked him to present such to the University. The Union was advised by the University through Grossman that the University's position remained unchanged in respect to the issue of negotiating pension plan amendments separately with the Union, instead of through the Ad Hoc Committee. Accordingly, the University refused to accept the Union's pension proposals.

41. The parties attempted to utilize the day to negotiate other outstanding issues apart from the pension issue. The parties did not resolve many issues. The parties thereafter broke off negotiations awaiting the decision of the Minister on the question as to the appointment of a Board of Conciliation.

42. By way of a letter dated September 16, 1987, the Minister advised the parties that he had decided not to appoint a Board of Conciliation.

43. On September 17, 1987, Kokic again wrote to Eastham requesting the University to negotiate all issues including the pension proposals. (Tab 18). On September 18, 1987, Eastham responded to the Union by letter explaining that the University was (and always had been willing) to negotiate with the Union but maintained that the appropriate mechanism for the Union and all other unions for the bargaining of pensions was the Ad Hoc Committee. (Tab 19).

44. On September 19, 1987, Kokic responded to Eastham's letter of September 18, 1987, (referred to above) advising that the Union remained firm in its position and that the Union would not negotiate on its pension concerns with the Ad Hoc Committee which was scheduled to meet on September 22, 1987. (Tab 20).

45. Mr. Grossman was appointed a Mediator and thereafter scheduled a mediation meeting for September 29, 1987, in Windsor.

46. On September 25, 1987, the University prepared and forwarded a summary of its pension plan proposals (Pension Plan Information Update) to all members of the E.R.P. including retirees. (Tab 21).

47. On September 28, 1987, the parties through letters exchanged between Eastham and Kokic again reaffirmed the positions of their respective organizations and the effect such would have on their positions before the Mediator. (Tabs 22 and 23).

48. On September 29, 1987, the parties met in mediation. The University refused to accept or negotiate the Union's pension proposals outside of the Ad Hoc Committee. The Union refused to change its position and did not agree to return to the Ad Hoc Committee. The University presented (through the Mediator) to the Union a typed mediation offer of all outstanding issues except pension. (Tab 24). It did not address the issue of pension plan proposals as sought by the Union. The Union gave the Mediator a copy of its pension proposals but the University refused to accept such or discuss the issue separately with the Union.

49. On September 29, 1987, Eastham called a meeting with representatives from three of the four (4) unions which had remained in the Ad Hoc Committee. This meeting was held on September 30, 1987. At this time, Eastham distributed the University's Mediation Offer made to CUPE. Local 1001. Each representative was informed as to the status of the collective agreement negotiations with C.U.P.E. Local 1001 and furthermore, each representative had received a copy of the University's Mediation Offer from Eastham. Later, on September 30, 1987, representatives of the Union attended a meeting convened by the Ad Hoc Committee. At this meeting, a representative(s) from each of the remaining four (4) unions in the Ad Hoc Committee was present.

50. By the time of the meeting referred to above, the Union had already advised the University and other unions as to the proposed strike date (October 2, 1987). The representatives of the other unions advised the Union that if C.U.P.E. Local 1001 did not return to the Ad Hoc Committee, the other unions would not support the proposed strike. C.U.P.E. Local 1001 refused to change its position.

51. On October 1, 1987, the University circulated a Fact Update (Tab 25), C.U.P.E. 1001 Negotiations Update (Tab 26) and Mediation Offer to all employees and retirees the University of Windsor. The University had also previously issued a similar Update (dated September 29, 1987) to the same group. (Tab 27).

52. It is the University's position that it disseminated this information because all other unions (including the Faculty Association, but excepting the Plant guards) have the right to refuse to cross a picket line. The University wanted its employees to be informed about the issues so they could decide whether or not to cross the line.

53. Throughout the course of negotiations, the Union maintained that it desired to meet and bargain with the University on pension issues separate from the Ad Hoc Committee. The University refused to receive or discuss the Union's proposals on this issue outside of the Ad Hoc Committee. The Union considered this as one of the two (2) most important issues. The University was advised of this by C.U.P.E. Staff representative, Ken MeLelland who had taken over the conduct of negotiations after the strike commenced, the Union viewed the pension issue as integral to its bargaining proposals and posture.

54. On October 2, 1987, the Union commenced a legal strike against the University. At that time, there were approximately over twenty (20) issues of varying degrees of importance between the parties, including the union's request that it no longer bargain pensions with the University within the Ad Hoc Committee.

55. On October 4, 1987, the Union filed this Complaint with the Board. The University was served directly with a copy of this complaint.

56. The Union was the only union that commenced a legal strike against the University. The other unions eventually settled all issues (except pension issues which still remained to be negotiated between the University and the Ad Hoc Committee) without a work stoppage and signed Memoranda of Agreement with the University by on or around October 15, 1987, which were implemented shortly thereafter.

57. The Union did not feel that the strike was an effective strike and by the second (2nd) week of the strike, some members had expressed an indication that they would return to work unless the strike was settled immediately. In fact, members of the other trade unions had crossed the picket lines established by the Union by this time.

58. (a) On October 14 and 15, 1987, the parties continued to negotiate all outstanding issues except the pension issue. The Union was prepared to await the outcome of the decision of the Board on the issue of as to whether or not the Union could negotiate separately with the University on the pension issue.

59. By the early morning of October 16, 1987, the parties had settled all outstanding issues save and except pension issues and executed a Memorandum of Agreement. (Tab 28).

60. The Memorandum of Agreement was ratified on October 18, 1987. The membership returned to work immediately, commencing later on October 18, 1987. The strike had lasted two (2) weeks.

61. The University presented a pension proposal to the Ad Hoc Committee. (Tab 29) On November 13, the University presented further proposals to the Ad Hoc Committee and the parties thereafter entered into a Memorandum of Agreement to amend the E.R.P. (Tab 30). The Memorandum stipulated that implementation of the amendments to the plan were conditional upon the ratification of the Memorandum by all Ad Hoc Committee members, including C.U.P.E. 1001.

62. The University implemented the terms of the collective agreements (including wage rate increases and retroactive monies) to all other unions save and except C.U.P.E. Local 1001. The University takes the position that the reason the provisions of the collective agreement with C.U.P.E. Local 1001 were not implemented was because the Memorandum of Settlement specifically indicated that this would not occur until the issue of the proper forum to negotiate pension was resolved.

63. On June 14, 1988, all members of the E.R.P. (including counsel for C.U.P.E. Local 1001) were advised that the Ad Hoc Committee (now known as the Joint Pension Negotiating Committee) had, in agreement with the University of Windsor, decided to ratify and implement all aspects resulting from the 1987 negotiations on Pensions. (Tab 31 and 32). It is the position of the University that the purpose of attempting ratification of the Pension Amendments was to accommodate a large number of employees who are awaiting implementation of the pension amendments before they retire. Many of these employees have already worked beyond their scheduled retirement dates.

64. The memorandum of explanation provided to members of the E.R.P. referred to above is reproduced at Tab 33. The Union has not participated in or consented to the amendments to the E.R.P. referred to above.

65. The University conducted a vote held on June 27, 1988, for the purposes of ratifying the Memorandum of Agreement (E.R.P.) reached between the University and Ad Hoc Committee referred to above. The Memorandum was ratified by majority.

66. Without admitting the propriety or validity of such by the University, the Union is prepared to accept that the University took and maintains its position on the issues in dispute for the following reasons:

(i) The University believed that the Ad Hoc Committee had been permanently established to bargain pension issues;

(ii) The E.R.P. had been amended and restated as at July 1, 1985 to include Article 14.03(b) and that such meant that the bargaining committees for pensions were the Ad Hoc Committee and Board of Governors Committee on Pensions;

(iii) Article 22.04 of the collective agreement between the Union and the University refers to E.R.P.;

(iv) The University was not advised of the dissolution of the Ad Hoc Committee and took the position that, accordingly, the Committee had not been dissolved;

(v) If it acceded to the request of the Union to bargain pensions separately, the University would have been violating the terms and conditions of the E.R.P., its agreement with the Ad Hoc Committee to bargaining pensions jointly, and the provisions of Section 15 of the Labour Relations Act (with respect to the other four (4) unions represented on the Committee).

DATED at Windsor, this 29th day of June, 1988.

FOR THE COMPLAINANT FOR THE RESPONDENT ~'Nick Kokic - President "Frank Eastham" Nick Kokic Frank Eastham

"James Hart"

James Hart - Steward

"Tom Robinson"

Tom Robinson - Pension Representative

7. Counsel for Susan Dufour indicated his concurrence in the agreed statement of facts except as reserved in a letter dated July 4, 1988:

I have reviewed the Agreed Statement of Facts and Exhibit Book prepared by Mr. George King and Mr. Michael Church.

Subject to the terms of your order and reserving my rights as indicated therein, I confirm my client's acceptance of the facts set out therein, with the caveat that my client is not aware of nor has she seen the petition referred to in paragraph 19 of the Agreed Statement of Facts. Therefore, I specifically reserve my client's rights with respect to this item.

8. The parties called no viva voce testimony and proceeded directly to argument on the basis on the agreed statement of facts. Those thorough and able arguments are next set in a highly abbreviated form.

9. Counsel for the complainant reviewed the agreed statement of facts and documentation in some detail in support of his assertion that the respondent had violated the various sections pleaded. It was submitted that the union, as exclusive bargaining agent, was entitled to negotiate the issue of pensions separately, regardless of the wisdom of that position, and that the union s right had not been restricted by the collective agreement, or otherwise. Specifically, the history and terms of reference of the Ad Hoc Committee demonstrated that body was a procedural mechanism for dealing with the pension issue rather than a substantial ceding of authority from the local unions. Indeed, each party retained the right, it was argued, to determine whether to continue joint bargaining in each round of negotiations. In this instance, counsel contended that the complainant had given ample notice of its indication to bargain pensions separately. Counsel argued that the respondent violated its statutory obligation to bargain in good faith by not negotiating with the complainant on pensions, by pressing to impasse the respondent's position that pensions were to be negotiated by the Ad Hoc Committee, by disclosing the respondent's bargaining position at mediation to the other unions which were part of the Ad Hoc Committee, by refusing to even physically accept the complainant's proposals regarding the pension plan and by negotiating pensions with the Ad Hoc Committee at all given the complainant's stance and especially by accepting Article 14.03(c) of The University of Windsor Employees' Retirement Plan (E.R.P.). In effect, the complainant had lost the opportunity to persuade the respondent of its point of view because of the respondent's conduct, a stance antithetical to the duty to bargain in good faith. Moreover, complainant's counsel asserted the respondent's communication to the University community, including the complainant's bargaining unit members, contravened sections 15, 64, 66 and 70 by referring to "your" committee (when the complainant had left the Ad Hoc Committee) in the university Pension Plan Information Update circular and inaccuracies in the university Fact Update Sheet. It was also contended that, even if the respondent's position on bargaining pensions was correct, the respondent had contravened the Act by failing to discuss (as distinct from agreeing to) the complainant's position on pensions. The respondent's implementation of the collective agreements negotiated with the other locals which were members of the Ad Hoc Committee was characterized as petty and vindictive and demonstrating an intention to punish and discriminate against the complainant for having taken the position it did on pensions, in contravention of the Act. In support of his submissions, counsel referred to and reviewed: The Journal Publishing Company of Ottawa Limited, [1977] OLRB Rep. June 309; Burns Meats Ltd., [1984] OLRB Rep. Aug. 1049; Royal Conservatory of Music, [1985] OLRB Rep. Nov. 1652; Rexwood Products Limited, [1987] OLRB Rep. Feb. 267; United Brotherhood of Carpenters & Joiners of America, [1978] OLRB Rep. Aug. 776; Northwest Merchants Ltd. Canada, [1983] OLRB Rep. July 1138; Toronto Star Newspapers Limited, [1979] OLRB Rep. Aug. 811; A. N. Shaw Restoration Ltd., [1978] OLRB Rep. May 393; Globe Spring & Cushion Co. Ltd., [1982] OLRB Rep. Sept. 1303; The Globe & Mail (Advertising Department) (unreported, February 3, 1987) (Joyce).

10. With respect to relief, counsel argued that far more than a declaration and posting was required to restore the complainant's position to what it would have been apart from the respondent's illegal conduct. Specifically, counsel argued the strike would probably not have been necessary and, thus, the lost wages of those in the bargaining unit and expenses of the complainant incurred because of the strike should be awarded as damages. Further, the respondent should be directed to implement the other provisions of the collective agreement, as agreed to, including retroactivity and wage increases, while the parties negotiate the remaining issue of pensions. The complainant also sought the costs of negotiating and concluding the pension issue and compensation for the loss of opportunity to be the "leader" amongst the locals (excluding faculty) on the pension issue. A declaration that Article 14.03(c) and (d) in the E.R.P. not extend to the complainant was sought. Finally, while indicating its satisfaction with the information received to date from the respondent, counsel requested that the Board remained seized with this aspect during negotiations.

11. Counsel for Susan Dufour stated that, while he took issue with many of the arguments

of complainant's counsel, his submissions would be directed to the section 68 complaint rather than the complaint between the complainant CUPE Local 1001 and the respondent university. Accordingly, he made no submissions at this point.

12. Counsel for the respondent first addressed the issue of delay. Counsel submitted that the complainant knew of the respondent's position that pensions should be negotiated through the Ad Hoc Committee in February and, by the date of the first negotiating session, at the latest, should have filed a complaint with the Board. Having tried to use its leverage through a threat of a complaint and a strike, the complainant, having lost the strike, was not entitled to then come to the Board. At the very least, since a timely complaint would have led to an early resolution of the issue so negotiations could have preceded without a strike, it was argued the complainant was entitled to no more than a declaration, assuming the respondent's conduct violated the Act. With respect to the merits, counsel reviewed the agreed statement of facts and documentary material and contended that, while the complainant was indisputably the exclusive bargaining agent, the complainant had surrendered its right to bargain pension issues separately and could no longer unilaterally withdraw from the Ad Hoc Committee. It was argued that the respondent had not refused to receive the complainant's pension proposals outright; rather, the respondent asserted those proposals could only be tabled and discussed at the Ad Hoc Committee because, to bargain that issue outside the Committee, would have constituted a breach of section 15 by the respondent vis-a-vis the other members of the committee. In short, respondent's counsel submitted the respondent had made "reasonable efforts" to conclude a collective agreement and conducted itself throughout without animus against the complainant. Counsel then argued that, even if the complainant was correct in its position that it could unilaterally withdraw from the Ad Hoc Committee, the complainant was estopped from doing so in respect of the 1987 round of negotiations. In effect, it was asserted that the respondent had relied to its detriment on the complainant's conduct in jointly proposing and participating in the Ad Hoc Committee, that the complainant was estopped from withdrawing from the committee at least for the 1987 round of negotiations. Finally, counsel reviewed the respondent's communications with the university and the other members of the Ad Hoc Committee. He argued that the communications were not misleading nor had the respondent negotiated with the Ad Hoc Committee regarding the complainant's pension. Rather, the other members were merely informed of the respondent's position. The respondent had sought the support of those other unions and the community or at least to deny that support to the complainant if a strike ensued. Cases referred to in support included: The Journal Publishing Company of Ottawa Limited, [1977] OLRB Rep. Nov. 748; Royal Conservatory of Music, supra; Fraser v. Board of Trustees of Central United Church et. al. (1982), 1982 CanLII 1856 (ON HCJ), 38 O.R. (2d) 97 (Ont. H.C.); Burns Meats Ltd., supra; John Burrows Ltd. v. Subsurface Surveys Ltd and G. Murdoch Whitcomb, [1968] 5CR. 607; Canadian General Electric Co. Ltd., (1971) 1971 CanLII 1934 (ON LA), 22 L.A.C. 149 (Johaston); Township of Innisfil Police Association (1985), 1985 CanLII 5357 (ON LA), 19 L.A.C. (3d) 263 (Hinnegan); Southam Murray Printing (Council of Printing Industries of Canada) (1986), 1986 CanLII 6700 (ON LA), 24 L.A.C. (3d) 76 (Swan); Fruehauf Trailer Company of Canada Limited, [1975] OLRB Rep. Jan. 77; American Can Canada Inc., [1983] OLRB Rep. Oct. 1609; The Citizen, [1979] OLRB Rep. Mar. 177.

13. Counsel for the respondent submitted that there had been no violation of sections 15, 64, 66 and 70. In the alternative, if there was a violation, the breach was "technical" only and just a declaration was warranted. With respect to the other remedies sought, counsel argued there was no basis on which to conclude the strike would not have occurred but for the pension issue, given the matters outstanding at the time. Further, the terms of the back to work agreement expressly provided that implementation would await resolution of the pension issue.

14. In reply, counsel for the complainant asserted the considerations reflected in the jurisprudence on delay were not present here or, at most, might affect the remedy. Likewise, with respect to the issue of estoppel, counsel stated that the jurisprudence was not applicable to the instant circumstances, that the complainant had acted reasonably in giving notice of its intention to bargain pensions unilaterally and that the respondent had not, at the time, asserted the notice was inadequate. As to the surrender of the complainant's rights as exclusive bargaining agent to bargain the pension issue other than through the Ad Hoc Committee, counsel submitted that an exclusive bargaining agent might be precluded from giving up such a fundamental right on a permanent basis or, at a minimum, such a surrender of authority would have to be in express terms, unlike in the instant case.

15. The Board intends to deal first with the issue of delay, followed by estoppel, the merits of the allegations and, finally, the appropriate remedy.

16. The essence of the respondent's position with respect to delay is that the complainant knew in February of the university's assertion that pensions could only be negotiated through the Ad Hoc Committee and, by the first negotiating session in May at the latest, should have filed a complaint with the Board. In the Board's view, it was not necessary for the complainant to proceed with its complaint before the Board until the point at which the parties reached an impasse in their bargaining. Prior to that point, the complainant was entitled to reiterate its position that pensions would no longer be bargained jointly and to use whatever legitimate leverage was available to seek to persuade the university to accept its stance. The Board recognizes that parties frequently adopt positions early in bargaining which seem immutable but which, as the deadline for the legal exercise of economic sanctions nears, are modified. The Board is reluctant to force a party to file a complaint with the Board early in negotiations, before the parties have fully explored their positions and opportunities for compromise have arisen. This would be the likely result of the Board exercising its discretion to refuse to hear a complaint subsequently filed when the parties are at impasse and economic sanctions are imminent. This is not to say that a party is precluded from proceeding with a complaint at an earlier stage, particularly where the issue is clearly joined and constitutes an impediment to negotiations. It is simply that the Board would be hesitant to refuse to hear a complaint alleging bad faith bargaining filed later in the bargaining process when a strike or lockout is imminent. Thus, the Board does not uphold this submission of the respondent. However, the Board would add that a complainant must engage in a delicate assessment of the most appropriate time at which to file its complaint given the potential impact on remedy. In this regard, the Board would echo the sentiments expressed in The Journal Publishing Company of Ottawa Limited, [1977] OLRB Rep. Nov. 748 at paragraph 12:

Parties must recognize, however, that the Board cannot turn back the clock. If negotiations have broken down as a result of a breach of Ithen] section 14, then the party seeking remedial relief must bring the matter quickly to the attention of the Board, or run the risk of the Board's remedial order being less efficacious. The Board should not be viewed as a court of last resort to be used when all other approaches fail.

The Board returns to this point, infra, in dealing with the appropriate relief.

17. The Board intends to deal relatively briefly with the issue of estoppel. The respondent asserted that, even if the complainant had the unilateral right to withdraw from the Ad Hoc Committee, the complainant was estopped from doing so, at least for the 1987 round of negotiations, because the respondent had relied to its detriment on the complainant's conduct in jointly proposing and participating in the Ad Hoc Committee for two rounds of bargaining. The Board does not consider it necessary to extensively review the doctrine of estoppel. That has been done in several of the cases cited by both counsel, including The Globe & Mail (Advertising Department), supra and the cases cited therein; Southam Murray Printing, supra; Board of Commissioners of Police for the Townshtp of Innisfil, supra; Canadian General Electric Co. Ltd., supra; John Burrows Ltd. v. Subsurface Surveys Ltd. and G. Murdoch Whitcomb, supra. The Board is not persuaded the requisite elements of estoppel, including the need for detrimental reliance, have been made out. In item 14 of the Agreed Statement of Facts (paragraph 6 above), the university indicated that, in giving up its right to bargain pensions separately with each bargaining agent, the university hoped to improve employer - employee relations and benefit its employees with more constructive and beneficial pension improvements. Those aims are undoubtedly laudable. In the Board's opinion, though, they do not constitute evidence of the sort of detrimental reliance referred to in the doctrine of estoppel. In the alternative, even if this could be considered "detrimental reliance", the Board finds that any "estoppel" was brought to an end by timely notice in respect of the 1987 round of negotiations. The Board does not dispute that a representation may operate prospectively and may extend beyond the term of a collective agreement depending on the nature of the representation and the detrimental reliance. In the instant case, the essence of the "representation" concerns the format of bargaining for each round of negotiations. Under the circumstances, the Board is satisfied that any "estoppel" as to the format of bargaining could be brought to an end for an upcoming round of bargaining, provided the university was informed at the latest by the time notice to bargain was given that the bargaining agent no longer wished to utilize the Ad Hoc Committee. In this instance, the university was informed in writing in February 1987, by the union president, that the union no longer wished to negotiate pensions through the Ad Hoc Committee, well in advance of notice to bargain in April 1987. The Board sees no merit in the respondent's argument that the estoppel could only cease to operate for the round of negotiations following the 1987 bargaining. Thus, the estoppel argument of the respondent fails.

18. In considering the merits of the complainant's allegations, the Board first deals with the asserted breaches by the respondent of its duty to bargain in good faith. There was no dispute that section 15 requires the employer to recognize and deal only with the employees' exclusive bargaining agent and that the employer must intend to enter into a collective agreement. The respondent contends that the complainant trade union relinquished its right to bargain the issue of pensions unilaterally by forming and participating with the four other bargaining agents in the Ad Hoc Committee in respect of the 1984 and 1985-86 rounds of negotiations. The Board here need not conclusively determine whether an exclusive bargaining agent could ever irrevocably cede to another body its authority to bargain a critical issue such as pensions. In the instant case, the Board has reviewed carefully the collective agreement in force prior to the 1987 round of bargaining and the documents covering the Employees' Retirement Plan (E.R.P.). In the Board's view, express language would be needed to sustain a conclusion that the complainant had ceded such authority. Such language is simply not present. The collective agreement, in Article 22.04 merely stipulates that the employer is required to maintain the present E.R.P at specified benefit levels and deals with the timing of normal retirement. The E.R.P itself (at the start of the 1987 negotiations) referred to a Retirement Committee which dealt with the administration of the plan and could recommend changes to both the Board of Governors' Committee on pensions and the Ad Hoc Joint Review Negotiating Committee (referred to herein as the Ad Hoc Committee). The Ad Hoc Committee was created following receipt of identical letters dated April 9, 1984 to the university from each of five bargaining agents. The letters specified that the joint committee would negotiate only in respect of pensions. Ratification of the negotiated amendments to the pension plan was done separately by each bargaining unit. Taken together, the documentary material does not support a conclusion that the complainant had irrevocably ceded its authority to negotiate pensions except through the Ad Hoc Committee. In reaching this conclusion, the Board regards the analysis in Burns Meats Ltd., supra as helpful insofar as that case permitted the employer therein to require a return to negotiations in the context of the legally-defined limits of the exclusive bargaining agent, notwithstanding a voluntary national bargaining format which had existed for approximately thirty years. Therefore, the Board finds that the complainant was entitled to unilaterally withdraw from the Ad Hoc Committee (having given adequate notice of its intention, as noted earlier) and bargain pensions separately in respect of the 1987 negotiations.

19. It is not disputed that the respondent repeatedly sought to have the complainant return to the Ad Hoc Committee, refused to receive the complainant's pension proposals at bargaining meetings and refused to bargain that issue except through the Ad Hoc Committee. While the university was entitled to seek to persuade the complainant to rejoin the Ad Hoc Committee, that demand could not be pressed to impasse given that the complainant was entitled to bargain that issue separately from the Ad Hoc Committee: Toronto Star Newspapers Limited, supra; United Brotherhood of Carpenters & Joiners of America, supra. In so doing, the respondent contravened its duty to bargain in good faith. Further, the respondent also violated that duty in refusing to receive and negotiate the complainant's pension proposals. The Board has elaborated on the scope of the duty to bargain in Royal Conservatory of Music, supra, in the following excerpt which is usefully noted here:

20. Given that "voluntarism" is the touchstone, it is implicit that the Board's role pursuant to section 15 of the Act is one of monitoring the process of bargaining and not the content of the proposals tabled. This role stands in sharp contrast with the American approach embodied in the "mandatory-directory" classification of proposals and the different consequences for bargaining of classification as a "mandatory" or "directory" item. The mandatory-directory approach has been rejected in this jurisdiction as not consonant with the legislative scheme: see Consolidated Bathurst, supra; Pulp and Paper Industries, supra; Westinghouse Canada Limited, supra.

21. This does not mean that the Board is totally distanced from the content of the parties' proposals or that there are no limits whatsoever on the scope of bargaining. The Board may have regard to the content of items tabled in order to determine whether either party does not intend to enter into a collective agreement (e.g., is engaging in surface bargaining) or whether the employer, for example, is seeking to undermine the union as exclusive bargaining agent by tabling an offer "tailor-made for rejection": see Radio Shack, [19791 OLRB Rep. Dec. 1120; Fotomat Canda Ltd., supra; Irwin Toy Ltd., [1983] OLRB Rep. July 1064. Further, the Board may review the content of proposals to assess whether any items are "illegal". For example, a strike for recognition or to resolve a jurisdictional dispute is contrary to the legislative scheme: see United Brotherhood of Carpenters & Joiners of America, supra; Toronto Star Newspapers Newspapers Ltd., [1979] OLRB Rep. May 451, [1979] OLRB Rep. Aug. 811. See also; Croven Limited, [1977] OLRB Rep. Mar. 162; AN. Shaw Restorations Ltd., [1976] OLRB Rep. Sept. 504; T. Barlisen & Sons, [1960] OLRB Rep. May 80; Canada Cement LaFarge Ltd., [1980] OLRB Rep. Nov. 1583; Treco Machine Tool Ltd., [1982] OLRB Rep. Dec. 1954. The Board notes that, although two examples of demands which have been found to be "illegal" are mentioned and other examples are contained in the cases referred to, the appropriate scope of the concept of "illegality" is not before the Board in this case.

22. However, subject to the comments outlined in paragraph 32 above, the Board will not evaluate or censure the content of proposals tabled by the parties. Again, apart from those comments, if the parties are free to agree that any matter may become part of their collective agreement, it is implicit that each party must be free to table the matter for discussion. While this is perhaps the bluntest enunciation of this principle, the proposition is not novel: see Westinghouse, supra; Sunnycrest Nursing Homes, supra; Consolidated Bathurst, supra; Canadian Industries Limited, supra. In the instant case, then, the respondent may not refuse to discuss the "9 point programme". The respondent characterized the 9 point programme as intruding on areas reserved to management. Quite simply, the parties are bargaining about what is reserved to management; the 9 points are not subjects a priori "off-limits" for discussion. The definition of a collective agreement in section 1(1)(e) of the Act is expansive; apart from illegal matters, the Board should not seek to restrict the scope of clauses which may be incorporated by agreement of the parties in their collective agreement. For the Board to accept the respondent's arguments would inevitably draw the Board into the mandatory-directory analysis of the duty to bargain. This, the Board will not do. Nor does the Board accept the respondent's asserted distinction between the union acting on behalf of the employees in the bargaining unit and acting on behalf of the Conservatory as an "institution" as relevant to the duty imposed by section 15 of the Act. The union is the exclusive bargaining agent for employees in the bargaining unit - no more and no less. But as exclusive bargaining agent, the union is entitled to present its proposals for a collective agreement. The union may be seeking to occupy the "high ground" in an attempt to broaden its support or to introduce novel clauses in a collective agreement or be acting from other motives. Provided the motive is not the avoidance of a collective agreement, the Board will not question the wisdom of the priorities established or proposals formulated by the parties.

23. The Board, then, finds that the respondent's refusal to discuss the 9 point programme constitutes a violation of the duty to bargain in good faith. It is important, though, to clarify the obligation imposed on the respondent by virtue of section 15 of the Act. The statutory scheme establishes a structure for bargaining, a framework to facilitate full and frank discussion against a backdrop of the right to resort to economic sanctions. Thus, the respondent must discuss the proposals tabled by the union, including the 9 point programme. This does not mean the university must agree to those proposals in the current form or at all. The university, however, must respond to those proposals by stating its position with its explanation of that position. It may well be that rational communication between the parties will enable an accommodation to be reached without recourse to economic sanctions. Or, resolution of the matters in dispute may require exercise of such sanctions. That is for the parties to determine. The Board's role, apart from the caveats already noted in paragraph 32, is to monitor the process of bargaining to ensure that both parties intend to conclude a collective agreement and are making every reasonable effort to do so.

In the instant case, the university was required, by the section 15 duty, to receive the complainant's proposals on pensions and discuss those demands. The respondent was not required to accede the substance of the proposals themselves, a theme which will be dealt with further under relief.

20. The complainant also submitted that the university contravened the Labour Relations Act, including section 15, when the university disclosed its (the university's) bargaining position to the other members of the Ad Hoc Committee and by continuing to negotiate pensions through the committee, (especially Article 14.03(c) and (d) in the E.R.P). The Board disagrees. With respect to the disclosure, the respondent and complainant met at mediation on September 29, 1987 where both parties maintained their respective positions regarding negotiation of pensions. The university presented, through the mediator, a typed mediation offer of all outstanding issues except pensions. By the next day when the university disclosed that offer to the other members of the Ad Hoc Committee at a meeting, the complainant had already advised the university and the other unions of a strike date of October 2. The respondent's conduct in disclosing the mediation offer was certainly intended to weaken the support by the other unions for the complainant with respect to the imminent strike. That is not a violation of the Act: both parties in negotiations are free to seek to enlist support for their respective positions. The respondent cannot, and did not, seek to negotiate the complainant's collective agreement with the other locals nor to bargain directly with the employees in the bargaining unit. There is no evidence that the respondent did other than disclose an offer already made to the complainant. In so doing, the respondent did not violate the Act (referring to the various sections pleaded in addition to section 15 as set out in paragraph 1 above). Moreover, the university did not act improperly in continuing to negotiate pensions with the remaining members of the Ad Hoc Committee. It is clear from the documentary material, taken together, that the articles to which the complainant takes exception were not intended to be applied to the complainant unless and until ratified by the complainant. The Board would emphasize that the university was engaged in collective bargaining negotiations with the other four locals and, therefore, bound by the section 15 duty in respect of those sets of negotiations. Pensions were a legitimate part of that bargaining. The complainant cannot insist, as a matter of law, nor should the complainant have reasonably expected, that those other negotiations cease while the complainant pursued its agenda to be the "leader" in bargaining pensions. Thus, the Board finds no violations in respect of the conduct of the respondent in disclosing its mediation offer or continuing to negotiate pensions to the Ad Hoc Committee with the remaining locals.

21. It is appropriate at this juncture to deal with the complainant's contention that the respondent's implementation of the collective agreements negotiated with the other locals violated the Act because it was allegedly intended to punish the complainant for seeking to bargain pensions separately. The Board first notes that the four other bargaining agents concluded collective agreements without a strike; all but the provisions regarding pensions apparently were implemented at that time. That is not surprising given the circumstances. It is apparent that the pension amendments negotiated at the Ad Hoc Committee were resolved as of November 13, 1987 but that document was not signed by the complainant and, accordingly, was held in abeyance by the remaining members of the committee. When the dispute between the complainant and the respondent had not been resolved by May 1988, the other locals signed a letter of understanding with the university in order to implement, in respect of those other locals, the pension amendments agreed to the previous November. That document expressly noted that implementation was voluntary on the university's part and without prejudice to its position that the November Minutes of Settlement must be executed by all members of the Ad Hoc Committee before one settlement was binding and enforceable. The implementation of the other collective agreements and pension amendments may well have been galling to the complainant. However, the complainant had settled its strike on October 16, 1987 by signing a memorandum of agreement which expressly provided that "It is clearly understood that final ratification and implementation of this agreement will not occur until the resolution of the pension issue". In the face of the documentation, particularly the terms of the memorandum of agreement signed by the complainant (and there is no indication that that agreement was other than voluntary), there is simply no evidence before the Board from which it may reasonably be concluded that the university acted as it did in order to punish the complainant. Therefore, the complainant's assertions in this regard fail.

22. The Board next turns to the question of the communication by the respondent with the university community, including members of the bargaining unit represented by the complainant. The Board affirms the principles expressed in the jurisprudence regarding consideration of communications between an employer and bargaining unit employees in light of the obligations imposed by sections 64, 67 and 15. The jurisprudence confirms an employer's right to communicate but requires circumspection in the exercise of that right lest freedom of expression becomes a guise for undermining the credibility of the bargaining agent: A. N. Shaw Restoration Ltd., supra. The timing of the communication is often critical: contact early in negotiations and/or early in a collective bargaining relationship is more likely to be characaterized as improper: A. N. Shaw Restoration, supra; American Can Canada Inc. supra; The Citizen, supra. Communication in the form of direct bargaining with the employees is prohibited: Globe Spring and Cushion Co. Ltd., supra. In contrast, communications which merely involve explaining the employer's position, especially where there has been a past practice of such communication, have not been found improper: The Citizen, supra; American Can Canada Inc., supra. These and other cases to the same effect have been reviewed in a recent decision in Toronto Star Newspapers Limited, [1988] OLRB Rep. Sept. 987. Noted therein, and in early decisions such as Fruehauf Trailer Company of Canada Ltd., supra, is the following caution: (from Fruehauf Trailer):

23. As a general matter the Board must be very careful not to insert itself, without hesitation, into the bargaining process as a censor of the communications between the parties engaged in this often emotionally charged exercise. A more intrusive approach would provoke disruptive litigation over what is essentially unavoidable human nature. Furthermore we believe that reasonable employees and diligent trade unions have little difficulty evaluating and responding to most of the isolated direct communications that may occur during collective bargaining.

24. In this context, then, the Board examines the impugned communications in the instant case. The respondent and the complainant have an established, mature bargaining relationship. The communications in question occurred late in the bargaining process when the parties were at or post mediation. The Pension Plan Update, issued September 25, 1987, merely constitutes a summary of the plan improvements tabled by the university at the Ad Hoc Committee but does not disparage the complainant (or the other unions) nor does it seek to negotiate directly with the employees in the various bargaining units. The Board does not regard the use of the term "your" with reference to the Ad Hoc Committee as a "misleading inaccuracy", as asserted by the complainant. The complainant's position with respect to bargaining pensions was hardly secret and no reasonable member of the bargaining unit represented by the complainant would have concluded from the reference to "your" that the complainant was bargaining pensions through the Ad Hoc Committee. The Fact Update of October 1, 1987 simply recited a statement by the complainant's president quoted in the local newspaper and provided additional information to place the quote in context. Finally, the Negotiations Updates (with the complainant) released September 29 and October 1 by the university explained the items in dispute and accurately noted the positions of the parties at those points but did so without suggesting that the university intended to negotiate with anyone other than the complainant as exclusive bargaining agent. Thus, the Board find that the impugned communications were within the ambit of permissible communications between an employer and the employees in the bargaining unit, in accordance with section 64 of the Act and did not contravene sections 64, 67 or 15. At all times (except as noted in paragraphs 18 and 19 above), the university was prepared to conclude a collective agreement only with the complainant as exclusive bargaining agent of the employees in the bargaining unit. Nor did the disclosures to the other union members of the Ad Hoc Committee constitute improper communication. The Board need not repeat its comments in paragraph 20 above but would note the timing of those disclosures (after mediation with a strike imminent) and their purpose (to enlist the support of the other locals or, at least, to deny that support to the complainant in the upcoming strike). The university was not bargaining directly with the employees in the bargaining unit represented by the complainant nor seeking to undermine the support of those employees for their bargaining agent.

25. The Board has found that the respondent violated the duty to bargain in good faith in pushing to impasse its position that the issue of pensions be bargained under the auspices of the Ad Hoc Committee and in refusing to otherwise receive and negotiate the complainant's pension proposals (see paragraph 19 above). The Board must then determine the relief appropriate to those contraventions. Certainly, the complainant is entitled to a declaration that those aspects of the respondent's conduct contravened the Act and to a Board direction that the respondent cease and desist from insisting pensions be negotiated through the Ad Hoc Committee. The respondent is further directed to meet with the complainant forthwith and negotiate; pensions in a manner consonant with the duty to bargain in good faith. The respondent acknowledged that Articles 14.03(c) and (d) of the E. R. P negotiated in the absence of the complainant would not be binding on the complainant and, hence, the Board need not issue a separate declaration to this effect, as requested by the complainant. As is stated in the agreed Statement of Facts (item 66), the university maintained its position on bargaining pensions because of its belief that the Ad Hoc Committee had been permanently established to negotiate pension issues, that the Ad Hoc Committee had not been dissolved and, therefore, if the university acceded to the complainant's request to bargain pensions separately, the university would have been violating the terms and conditions of the E. R.P, the agreement with the Ad Hoc Committee and the duty imposed by section 15 of the Act in respect of the other four unions represented on the Committee. The Board has, for the reasons given, found that the university did violate its section 15 duty vis-a-vis the complainant, with regard to the conduct noted earlier in this paragraph. In these unusual circumstances, the Board is not persuaded that it would be appropriate to direct a posting. However, the Board does regard it as appropriate that the respondent forthwith forward a copy of this award to each person in the bargaining unit represented by the complainant and, in addition, to the representatives on the Ad Hoc Committee of the other locals.

26. The complainant has sought additional relief, namely, the lost wages of those in the bargaining unit and expenses of the complainant incurred because of the strike, a Board direction that the respondent implement the other provisions of the collective agreement including retroactivity and wage increases, while the parties negotiate the issue of pensions, costs of negotiating the pension issue and compensation for the loss of opportunity to be the "leader" amongst the locals (excepting faculty) on the pension issue. In considering that requested relief, the Board begins with the principle that the remedies should endeavour to restore the complainant's position to that which would have occurred but for the respondent's misconduct. But, as stated in paragraph 16 above in quoting an excerpt from The Journal Publishing Company of Ottawa Limited, sup ra, the Board cannot "turn back the clock" to provide an efficacious remedy where the loss arose or was exacerbated by the complainant's delay in bringing the allegations before the Board.

27. The costs of negotiating the pension issue are expenses which the complainant would normally bear in any round of bargaining where both parties negotiated in good faith. To the extent those costs may be increased somewhat or may be separately identifiable, is the result, in the Board's view, of the complainant's delay in filing the complaint rather than being properly attributable to the respondent's misconduct. While the Board declined to refuse to hear the complaint on the grounds of delay, if the complainant had acted promptly, the matter would likely have been resolved so that bargaining could have proceeded in the usual course on all issues. Moreover, the Board's remedial authority should not be utilized to compensate for damage which properly results from the legal use of economic sanctions nor to redress an unfavourable bargaining situation or disparity in economic power. At the time the complainant called the strike in October 1987, there were outstanding over twenty issues of varying degrees of importance, of which the pension question was only one of the two most critical to the complainant. In such a situation, the Board is not convinced that the strike would not have occurred but for the respondent's position on negotiating pensions through the Ad Hoc Committee. The complainant was entitled to resort to timely economic sanctions in an effort to impose its terms on the many issues outstanding at the commencement of the strike. Having done so, the complainant is not entitled to recover, as damages, the lost wages of the bargaining unit members or its expenses associated with the strike in the circumstances of this case.

28. Nor is the Board prepared to direct that the respondent implement the other provisions of the collective agreement, including retroactivity and wage increases, while the parties negotiate the issue of pensions. Firstly, as the complainant's counsel conceded, if the parties resume bargaining on pensions and reach an impasse, either may properly resort to economic sanctions to break the deadlock (assuming, of course, that no unfair labour practices are committed in those further negotiations). For the Board to impose some "provisions" of a collective agreement not yet finally concluded would be an unwarranted intrusion into the collective bargaining process. Moreover, such a direction would fly in the face of the back to work protocol voluntarily signed by the complainant and which expressly stipulates that "final ratification and implementation of this [collective] agreement will not occur until the resolution of the Pension Issue". The Board will not permit a complainant to circumvent the terms of an agreement freely signed under the guise of a "make-whole" order. While "loss of opportunity" has been acknowledged as an appropriate head of damages in some circumstances in response to bad faith bargaining, the Board does not regard the loss of opportunity to be the "leader" amongst the locals (excluding faculty) as warranting such an award in the circumstances of this case. The Board has held that the complainant was entitled to negotiate the issue of pensions separately from the Ad Hoc Committee. As indicated in the Royal Conservatory case, supra, the Board will not question the wisdom of a party's proposals. Obviously, the question of pensions is of considerable importance to the complainant, particularly its leadership. However, in its decision to withdraw from the Ad Hoc Committee because of its view that the other locals would not strike over pensions, the complainant may well have so isolated itself from those other locals and the collective bargaining leverage inherent in joint bargaining on pensions that the complainant's goal of "leadership" regarding pensions is, for practical purposes, unattainable. To refer again to the Royal Conservatory case, supra, the Board directed the respondent therein to discuss the 9 point programme and to respond to the proposals by stating its position with its explanation of that position, but acknowledged that this did not mean that the respondent was required to agree to those proposals.

29. Thus, the Board rejects the various additional remedies sought as inappropriate for the reasons noted. Finally, the complainant requested that the Board remain seized with respect to its request for information disclosure from the respondent although acknowledging that the material provided to date was satisfactory. This approach does not commend itself to the Board. Should there be further information requested by the complainant but refused by the respondent, the complainant may file a new complaint before the Board (although it would clearly be in the interest of both parties to present the factual background covered in the instant complaint, if considered relevant, in an expeditious manner, perhaps by agreement of the parties).

30. For the foregoing reasons, the Board hereby declares that the respondent violated the duty imposed by section 15 of the Act by pressing to impasse its position that the issue of pensions be bargained under the aegis of the Ad Hoc Committee and by refusing to otherwise receive and negotiate the complainant's pension proposals. The respondent is herby directed to cease and desist from insisting pensions be negotiated through the Ad Hoc Committee. The respondent is further directed to meet with the complainant forthwith and negotiate pensions in a manner consonant with the duty to bargain in good faith. Finally, the respondent is directed to forward forthwith a copy of this award to each person in the bargaining unit represented by the complainant and, in addition, to the representatives on the Ad Hoc Committee of the other locals. The other allegations and requested relief are dismissed.

31. The Board remains seized to deal with any matters arising out of the implementation of this decision.