United Brotherhood of Carpenters and Joiners of America, Local 1030 v. Nepean Roof Truss Limited, 1988 CanLII 3641

United Brotherhood of Carpenters and Joiners of America, Local 1030 v. Nepean Roof Truss Limited

[1988] OLRB Rep. January 61

0280-87-U; 0281-87-U United Brotherhood of Carpenters and Joiners of America, Local 1030, Applicant/Complainant v. Nepean Roof Truss Limited, Claude Guellette, Hubert C. Steenbakkers, Respondents

BEFORE: Robert Herman, Vice-Chair, and Board Members D. A. MacDonald and H. Kobryn.

APPEARANCES: Frank Manoni, Paul Simmons and Peter Simmons for the applicant/complainant; Russel W. Zinn, Hubert C. Steenbakkers and Claude Ouellette for the respondents.

DEC1SION OF THE BOARD; January 13, 1988

1The complainant alleges that the corporate respondent and two individual respondents have each violated sections 50, 64, 66, and 70 of the Labour Relations Act, and also asks that the Board give its consent to prosecute. Although there is a significant recent history of complaints or applications before the Board involving the corporate respondent, hereinafter "Nepean", this is the first proceeding which has named Ouellette and Steenbakkers personally as respondents. The instant complaint must be seen in historical context, and it is therefore necessary to sketch with some detail the entire chronology.

2On October 9, 1984, Local 1030 filed an unfair labour practice complaint (Board File No.1864-84-U) naming Nepean as respondent. On November 5, 1984, Local 1030 was certified by this Board to represent the employees of Nepean. On November 6, 1984, a second unfair labour practice complaint was filed (Board File No. 2146-84-U), and on November 28, 1984, a third unfair labour practice complaint was filed (Board File No. 2413-84-U), both the second and third complaints naming only Nepean as respondent. These three complaints were dealt with by the Board together in one proceeding, and they involved complaints about the behaviour of Nepean with respect to the termination of four grievors, and with respect to alleged violations of sections 15 and 79 of the Act.

3In an oral decision delivered April 23, 1985 by a differently constituted panel, the Board found that Nepean had breached the Act in its discharge of the four grievors, directed that they be reinstated forthwith together with compensation, and remained seized with respect to the matter of compensation if the parties were unable to agree on the appropriate quantum. The oral decision noted that written reasons would follow. The panel reserved its decision on the question of the alleged breach of sections 15 and 79 of the Act.

4Pursuant to the Board's direction the grievors were reinstated by Nepean the next day, April 24, 1985. At the request of Steenbakkers, the union and Nepean met on May 6, 1985 to discuss compensation. Nepean was represented by Ouellette, President and General Manager of Nepean and the individual responsible for day-to-day business decisions, and by Steenbakkers, who as Vice-President was involved in negotiations and other matters concerning Nepean's labour relations. He was not involved in day-to-day management of the company. Local 1030 was represented by its business agent, Frank Manoni. The three men discussed proposals for a collective agreement, and as part of that discussion considered the compensation due to the grievors. Whatever amount of compensation Manoni suggested as appropriate (the amounts varied as the compensation due each grievor was different), Steenbakkers and Ouellette indicated at first that the company would only pay half. They also indicated that their proposed terms for the collective agreement were conditional upon the grievors accepting the company's compensation offer.

5Manoni refused to accept, on behalf of the grievors, what he considered to be inadequate compensation. With the union's permission, the reinstated employees were asked directly by Ouellette and Steenbakkers whether they would accept the offered amount of compensation, and the employees refused to do so. In discussing the compensation with Manoni, both Steenbakkers and Ouellette made statements indicating that they would close the shop or "have to go bankrupt" if they paid compensation beyond two weeks wages. Ouellette testified that he and Steenbakkers took this position because they felt that whatever amount of compensation was paid to the grievors, the same amount should be paid to all other employees of Nepean. As all other employees had been laid off at the same time, they testified, they felt it only fair that Nepean pay all employees the same amount. Ouellette acknowledged that Nepean was under no legal obligation to pay the other employees, but insisted that it was nevertheless only fair to do so. Both Ouellette and Steenbakkers took the position with Manoni that the large amount of money required to pay all the employees a similar amount of compensation would force Nepean to go bankrupt.

6On May 27, 1985, three weeks later, Local 1030 filed two more unfair labour practice complaints (Board File Nos. 0480-85-U and 0481-85-U), alleging that Nepean, but not either Steenbakkers or Ouellette, had breached sections 15 and 79 of the Act, and asking for the Board's consent to prosecute Nepean.

7On or about July 10, 1985, Manoni and Steenbakkers spoke by phone, concerning a possible adjournment of an appearance the following day in Toronto at the Board premises. Steenbakkers again offered Manoni two weeks compensation for the grievors, but Manoni refused. In response, Steenbakkers indicated that the union could take him to the Supreme Court, but he would still not pay.

8On August 20, 1985, Manoni, Steenbakkers and Ouellette met at the premises of Nepean, and again discussed both a proposed collective agreement and compensation for the grievors. Ouellette maintained that the compensation requested by the union was too great, stating that he might have to "close shop" because he would have to pay all employees the amount being requested. As part of a discussion on the overtime provisions proposed for the collective agreement, Manoni advised Ouellette and Steenbakkers that the overtime they wanted employees to perform was contrary to the law. In response, Ouellette indicated that he "didn't give a shit about the laws, he had a business to run". Although the union argued that this statement was tied to Nepean's obligation to pay compensation to the grievors, we are satisfied that Ouellette made the statement only with respect to the overtime provisions proposed for the collective agreement.

9In November 1985, another panel of the Board heard the unfair labour practice complaint that had been filed against Nepean in May, 1985 (0480-85-U and 0481-85-U, see paragraph 6 above). That panel reserved its decision. As part of those hearings, evidence was led by both parties of the conversations that had occurred on May 6, July 10, and August 20, 1985, the very conversations which Local 1030 relies upon in the instant proceeding as constituting breaches of the Act by Ouellette and Steenbakkers. Again, neither Ouellette nor Steenbakkers had been named as respondents in those two earlier complaints.

10A relatively calm period occurred between November, 1985 and July, 1986. On July 24, 1986, a panel of the Board, chaired by Judge Abella, directed that a first collective agreement be imposed, pursuant to section 40a of the Act ([1986] OLRB Rep. July 1005).

11On July 31, 1986, two decisions were issued. First, with respect to the initial proceedings (Board File Nos. 1864-84-U, 2146-84-U, and 2413-84-U), a decision issued providing written reasons for the oral decision of April 23, 1985, and providing that panel's decision on the reserved matters, namely the complaints with respect to sections 15 and 79 of the Act, both of which were dismissed. Second, the Board, differently constituted, issued its decision on the more recent complaints (#0480-85-U and 0481-85-U), dismissing both the section 15 complaints and the application for the Board's consent to prosecute. The decision noted that the union had abandoned its complaint in respect of section 79. At this point, all decisions had issued and no matters remained reserved by the Board.

12Shortly thereafter, on September 3, 1986, Local 1030 applied to the Board for determination of the appropriate compensation due the four grievors. It was this matter which Manoni had attempted to negotiate on May 6 and August 20, 1985. The July 10, 1985 conversation could more accurately be characterized as a restatement of the parties' positions, rather than a negotiating session.

13On September 19, 1986, an application for termination of the union's bargaining rights filed by an employee of Nepean was dismissed by the Board: [1986] OLRB Rep. Sept. 1279. On September 24,1986, and pursuant to the Board's direction of July 24, 1986 directing that a first collective agreement be settled by arbitration, another panel of the Board (at the parties' request) arbitrated the settlement of the parties' first collective agreement: [1986] OLRB Rep. Sept. 1287. On January 9, 1987, the Board, again differently constituted, issued its decision with respect to compensation due to the grievors, arising from the first three complaints (see paragraphs 3 and 11 above). No one appeared on behalf of the respondent Nepean at the compensation proceedings.

14It was common ground among the parties that union dues were legally required to be deducted and remitted to the union with respect to the employees of Nepean. Notwithstanding this legal requirement, and the fact that the company was aware in July 1986 that the union was seeking to obtain those dues, no dues were deducted or forwarded. Ouellette testified that he got a letter signed by all the employees, on July 29, 1986 (five days after the Board directed that a first collective agreement be settled by arbitration), which stated that the employees did "not wish to be represented by the union or pay union dues." Accordingly, Ouellette testified, as he felt that all the employees would quit if dues were deducted, he decided not to either deduct or remit dues. He also testified that the company could not afford to pay the dues. When no dues were forthcoming, the union filed a grievance and an arbitration board, on January 20, 1987, found that Nepean had breached the agreement by not deducting dues and directed that it pay the dues, and damages incurred in such collection, to the union forthwith. No one appeared on behalf of Nepean at the arbitration hearing. Steenbakkers testified that Ouellette had never advised him that the dues were not being deducted and remitted. He also testified, in response to being asked whether he was involved in the decision not to pay dues, that he had not really been so involved as Ouellette and the employees had made that decision together. Notwithstanding this testimony, we are satisfied that Steenbakkers was aware of and supported the decision that dues would not be paid. In all the circumstances, and given the long litany of proceedings and interaction between the parties and Steenbakkers' continuing involvement in those matters, the only reasonable inference is that Steenbakkers was both aware that Nepean was not deducting or remitting the dues and aware of the ostensible reason for this action, and that he concurred in the decision.

15On February 6, 1987, the union requested that the Board register its compensation decision of January 9, 1987 with the Supreme Court of Ontario, for enforcement purposes. The pivotal event which led to the instant proceedings also occurred on February 6: Nepean's premises burned to the ground. At the time of the fire, both Ouellette and Steenbakkers were out of the country, attending a convention in Florida. They did not return to Ontario until several days after Nepean's plant burned down.

16On March 3, 1987, as per the request of the union, the Board compensation direction was registered with the Supreme Court. The union took other steps to try to collect the compensation ordered by the Board, but it was unable to realize any funds from the fire insurance or other assets of Nepean.

17The instant complaint and application were filed on April 27, 1987, and as indicated above, these were the first proceedings in which Steenbakkers and Ouellette were personally named as respondents and in which Local 1030 sought any directions against them personally. The circumstances relied upon by Local 1030 as constituting breaches consist of, first, the conversations that occurred on May 6, July 10, and August 20, 1985, involving the attempts of the parties to work out the amount of compensation due the four grievors by Nepean, and second, the complete repudiation by the respondents of the collective agreement imposed on September 24, 1986, evidenced by their continuing refusal to deduct and remit dues.

18Manoni explained the delay in bringing the instant complaint in various ways. In essence, the union's submission is that it could not have done anything until the written reasons issued for the direction to reinstate and compensate the four grievors and on the other reserved matters, which was not until July 31, 1986 (see paragraph 3, above). The union would not have been able to get the Board to quantify the compensation before then, because the Board had not yet decided all aspects of the complaint. Within a relatively short time after getting the relevant decision, the union had asked the Board to determine compensation. Manoni also submitted that he had tried, actively and on numerous occasions, to get Nepean to pay the compensation, but each time was met by the response that only two weeks compensation would be paid, or the company would go bankrupt. Finally, and with admirable candour, Manoni testified that the instant complaint would certainly not have been filed had Nepean paid the compensation or paid the dues owing under the collective agreement. It was only the union's inability to collect the sums from the corporate employer, Nepean, and the fact that since the fire such recovery would forever be impossible, that had prompted the filing of this complaint.

19The Board must decide several issues. First, did the conversations and events that occurred between May and August of 1985 constitute breaches of the pleaded sections of the Act. Second, if such events did constitute breaches, did either or both of the individually named respondents also breach the Act with respect to those same events. Third, if the Board does find that Nepean and either or both of Ouellette and Steenbakkers did breach the Act with respect to those 1985 events, ought the Board to issue any remedy in light of the history of these proceedings and the significant delay on the part of the union in filing this complaint. Fourth, and a matter quite distinct from the events of the summer of 1985, did any of the respondents breach the Act by their repudiation of the collective agreement and more particularly by their failure to deduct and remit dues. No issue of delay arises with respect to these latter events.

20With respect to the actions of the respondents in dealing with compensation, counsel for the respondents submits that all three respondents were merely trying to negotiate the best deal possible with respect to compensation, and the Board ought not to intrude into this negotiating process. Parties regularly say things and make statements designed to exert pressure on the other side to agree to their position. Counsel submits that nothing more than this occurred in the instant case.

21The Board readily recognizes the free-wheeling nature of negotiations, whether they revolve around compensation for individuals or the terms of a collective agreement, and the Board will not lightly intrude into this sphere, for to do so would hamper the negotiation process. At the same time, it cannot as a matter of law be a complete answer to an unfair labour practice allegation that the events occurred during negotiating sessions. Both the statutory language and sound labour relations policy require that in such circumstances the Board pierce the negotiating veil to consider whether a breach has occurred. The task is to decide whether what occurred was part of the negotiating process deserving of protection, or the commission of an unfair labour practice even though it occurred during such negotiations.

22Sections 64, 66, and 70 read as follows:

64. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

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

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

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

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

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

23Having regard to the evidence, we are satisfied that Nepean has breached the Act. Nepean has demonstrated a constant and continuing unwillingness to recognize or deal with the union as bargaining agent for employees in the bargaining unit. In the fall of 1984, before bargaining rights were acquired, Ouellette told several employees that he would close the business if a union was ever certified. In an earlier proceeding, the Board found that Nepean had breached the Act in its discharge of four grievors, discharging them for union activity (see paragraph 3, supra). Then, in May, 1985, when Manoni approached Ouellette and Steenbakkers to negotiate compensation for the grievors, Nepean refused the requested amounts for reasons that can only be construed as attempts to penalize employees and the union for exercising their rights under the Act. The grounds given for refusing to pay the compensation did not include any suggestion that the quantum requested did not accurately reflect the amount due to the grievors. Rather, Nepean predicated its refusal solely upon the grounds that fairness demanded that whatever amounts Nepean paid to the grievors, it also had to pay the same amounts to other employees in the bargaining unit. There was no legal requirement that those other employees be paid compensation, nor was Nepean under any illusion that such an obligation existed. Nor was any evidence led before the Board suggesting that those other employees were in the same situation as the four grievors. Nepean was telling the union and the grievors that, although their rights under the Act had been breached by Nepean and Nepean had forced them to go through lengthy and expensive Board proceedings to enforce those rights, Nepean would gratuitously give the same compensation to all employees, though the rights of no other employees had been found to have been breached and though no other employees were owed any money.

24The approach taken by Nepean was designed to undercut the bargaining authority of the trade union, and indicate in graphic terms to all employees that Local 1030 could get nothing for employees unless the employer consented, and anything that Local 1030 could obtain for employees, the employer would in any event give to all employees. Nepean's behaviour in this respect was specifically designed to discriminate against the grievors because of their union membership and because they chose to exercise their rights under the Act. Its behaviour was also designed to interfere with the representation of employees by the trade union. The conduct also constituted intimidation or coercion within the meaning of section 70, in that this approach was designed to exert pressure on employees to abandon support for or to refuse to give support to the trade union or alternatively, to refrain from exercising its rights under the Act. We accordingly find that Nepean breached sections 64, 66, and 70 of the Act, as evidenced by the discussions that occurred between the union and Ouellette and Steenbakkers between May and August of 1985.

25Having found that Nepean breached the Act, we must next ask whether Ouellette and Steenbakkers did as well. Counsel for the respondents argued that personal liability could not in these circumstances, as a matter of law, be found pursuant to sections 64 and 66 of the Act. Counsel submitted that where those sections refer to "no person acting on behalf of an employer", they do not constitute authority for the Board to find an individual officer or owner of a corporate employer to be personally liable. Rather, counsel submitted that those sections and this particular phrase therein, enable the Board to find liability with respect to third parties who act on behalf of an employer. Such potential liability is necessary in order to preclude employers from doing indirectly, through the actions of a third party, what they cannot do directly. Counsel further submitted that the statute is clear where personal liability is meant to be found under a particular section, and looking to those other sections buttresses the submission that personal liability of an owner or officer of an employer was not contemplated by the wording of sections 64 and 66. Counsel referred to section 70, which indicates that "no person ... shall" as an example of a clear indication that individuals can be personally liable for a breach of that section. Counsel also referred to section 98 of the Act, dealing with prosecutions for violations of the Act, as illustrating that the statute is clear where a court (or tribunal) is able to find personal liability. Finally, counsel submitted that it would be unfair to attach personal liability pursuant to sections 64 and 66, for to do so would mean that personal liability would be found in every breach of the sections by a corporate employer. As corporations can only act through the conduct of individuals, finding liability on behalf of the corporate employer would necessarily, in counsel's submission, lead the Board to find liability against the individual officer who engaged in the offensive conduct. Were the Board to find such authority in the wording of section 64 and 66, there would be two findings of a breach of the Act with respect to the same set of circumstances. In addition to routinely and inappropriately piercing the corporate veil, counsel submitted that such double liability would be unfair.

26As counsel recognized in his submissions, prior decisions of the Board have either found or recognized that personal liability can be found under these sections: for example, Sunnylea Foods Limited [1981] OLRB Rep. Nov. 1640, Heritage Manor Rest Home [1983] OLRB Rep. March 385, Daynes Health Care Limited [1985] OLRB Rep. March 387, Termarg Food Services Limited [1985] OLRB Rep. March 516, Doyles Tavern [1985] OLRB Rep. May 662, Forintek Canada Inc. [1986] OLRB Rep. April 453 and Peralta Foods [1987] OLRB Rep. Sept. 1162. We agree with those decisions where they find statutory authority in sections 64 and 66 for the jurisdiction to find personal liability. The clear wording of those sections, particularly where they state "no employer ... or person acting on behalf of an employer ..." gives the Board jurisdiction to find that an individual has breached the section, including an individual other than one working for a party unrelated to the corporate employer. We see nothing in that phrase which suggests that a person "acting on behalf of an employer" cannot be an owner or officer of the corporate employer. We are not prepared to read into that phrase a limitation on finding liability that depends on the identity of the employer of the "person acting on behalf of', as suggested by counsel for the respondents. To read such a restriction into that section is neither consistent with the language used therein, nor consistent with sound labour relations policy. These sections are designed to protect the ability of unions and individuals to exercise the rights afforded them under the Labour Relations Act. To read in the limitation suggested by counsel for the respondents would be to allow individual officers or owners of a corporate respondent to escape personal liability for any wrongdoing committed by them. In circumstances where, for example, the corporate entity is a shell corporation or a corporation without significant assets, individuals could in practice breach these sections with impunity. Given the clear language, it remains open to the Board to find that an individual has breached the Act, where it is so pleaded and is borne out by the facts (having regard to the section claimed to have been breached).

27As the then chairman of the Board stated in Sunnylea Foods Limited, supra, at ¶38:

• . .1 can conceive of a number of situations where it would be appropriate to name the person responsible for the unfair labour practice where that person is primarily in control of the employing entity or other organization... No matter how mild the remedy, it is one that the complainant should be able to pursue against the ongoing activities of Mr. Zonneveld. Indeed, had the complainant's core allegations been established, a remedy confined to Sunnylea may have been quite ineffective. If the potential for personal liability is not understood in the labour relations community, I would hope this decision sheds some light on the matter."

28And in Termarg Food Services Limited, supra, at ¶6, the Board noted:

in an appropriate kind of case, and at least where the corporate entity itself has disappeared or has explicitly threatened to do so if a full measure of damages is claimed, the Board is not unprepared to fix liability to an individual or 'person" acting on behalf of the corporate employer. But again, every corporation must ultimately act through individuals, and the applicant has been unable to plead (nor, as in Sunnylea and Daynes, has prior litigation shown) a course of conduct anywhere close to the exceptional circumstances causing the Board to consider the steps it did in those latter two cases."

It may not be necessary in a given case for the Board to decide whether an individual has breached the Act. But where the Board does find it necessary to determine that issue, whether or not the Board will find individuals to have breached the Act does not depend on special or exceptional circumstances. It depends only on whether the persons are alleged to have breached a particular section of the Act, and on whether the evidence establishes their breach of that section. The Board of course retains discretion, notwithstanding the breach, over the appropriate remedy, if any, to be directed against an individual, or against a corporate employer for that matter, and the exercise of this discretion depends on whether the Board considers it appropriate in the circumstances, in the interests of promoting harmonious labour relations within the Province.

29Ouellette and Steenbakkers, as President/General Manager and Vice-President, respectively, were the individuals who directed, managed, and controlled the company's operations, and together they directed those operations with respect to all labour relations matters. Both of them were present and made statements indicating their intention to continue to try to undermine the rights of the union and employees under the Act. In these circumstances, we conclude that both Quellette and Steenbakkers breached sections 64, 66 and 70 of the Act by their conduct.

30The more difficult question is whether to provide any remedy for these breaches, in light of the history of these proceedings, and more particularly, the fact that the breach first occurred around May, 1985, yet this complaint was not filed until April, 1987, almost two years later.

31The mere fact that the union brings this complaint to attempt to enforce collection of compensation no longer obtainable from the corporate respondent Nepean would not lead us to decline to provide a remedy against the individual respondents. Had this complaint been brought in a timely fashion, shortly after the events complained of had occurred, we would have issued the appropriate remedial orders against Ouellette and Steenbakkers. However, in the circumstances, we exercise our discretion pursuant to section 89 of the Act to decline to issue any remedy against any of the respondents, including Ouellette and Steenbakkers, with respect to the breaches that occurred around May 6, 1985.

32The Board regularly declines to provide relief, and usually declines to even inquire into the matter, where complaints are not brought in an expeditious fashion, and with no justifiable excuse for the delay: see, for example, Catherine Whittaker [1985] OLRB Rep. Apr. 621 Savage Shoes Limited [1983] OLRB Rep. Dec. 2067, Corporation of the City of Mississauga, [1982] OLRB Rep. March. 420, Sheller-Globe of Canada Ltd., [1982] OLRB Rep. Jan. 113. We do not propose to recite long passages from those cases, or numerous other Board decisions on point, but refer the parties to those decisions for an explanation of the factors the Board considers in exercising its discretion in this regard and the reasons for the Board's concern with respect to delay. In the instant proceeding, there was nothing preventing Local 1030, when it filed its initial complaint in October, 1984, from also naming Quellette and Steenbakkers individually as respondents. While we appreciate that the events complained of in the instant proceeding had not occurred at that point, Nepean was already committing its first unfair labour practices, and was doing so through the actions of Ouellette and Steenbakkers. Quite apart from the ability of the union to have named those individuals in 1984, there was nothing precluding the union from filing the instant complaint shortly after the events in the summer of 1985. The union had a justifiable reason for its delay in asking the Board to determine the compensation with respect to the oral decision of April 23, 1985. Until written reasons for that decision issued, and in any event until that panel issued its decision on July 31, 1986 with respect to all the unfair labour practices alleged it would be unrealistic to expect the union to call upon the Board to determine the appropriate compensation. Until the Board and the parties knew the full extent of the breaches of the Act, it would be extremely difficult, if not impossible, to determine compensation.

33However, those proceedings arose out of separate events, events that occurred before April 23, 1985. The events that occurred after April 23, 1985, which formed the subject matter of the instant complaint, were in no way affected by the decision and matters that the first panel considered. Perhaps it was best put by Manoni himself, when in his evidence he indicated that the instant complaint would not have been filed at all, with respect to the events in the summer of 1985 at least, had the union been able to recover the damages from Nepean. It was only when Nepean's premises burnt to the ground that the union was led to file this complaint. Indeed, as noted above, the circumstances giving rise to the breach were fully canvassed in litigation initiated by the union, with respect to an allegation of a breach of section 15, in hearings that occurred in November of 1985. At that point it was clear that the union was not concerned enough about the breaches of the Act committed by Steenbakkers and Ouellette in the summer of 1985 to take any concrete action to deal with those breaches. The union was not concerned enough about those breaches to take any action during all of 1986. It only became concerned about that behaviour when Nepean no longer existed other than on paper. Throughout this lengthy period, neither Steenbakkers nor Ouellette would have been put on notice that the union would be alleging that they personally had committed an unfair labour practice, nor that the union would be seeking damages from them in their personal capacities. To the contrary, given the numerous proceedings and the fact that neither was named as a respondent in any of them, both individuals would have concluded that no personal liability was being sought. In all these circumstances, we do not consider it appropriate to issue any remedy with respect to the first set of breaches.

34The alleged breach evidenced by the failure of Nepean to deduct and remit the dues owing under the collective agreement is another matter. There has not been a significant delay between the conduct complained of and the filing of this complaint. We are satisfied that Nepean breached the Act in its refusal to deduct and remit union dues as required under the terms of the collective agreement. Nepean sought to undermine the bargaining and representational authority of the union by its stance of refusing to deduct and remit dues because the employees did not want to pay them. Counsel for the respondents argued that "abiding by employee wishes is not a violation of the Labour Relations Act". To the contrary, in the circumstances before us once the union obtained the right under the Act to act as agent for and to represent and bargain on behalf of employees in the bargaining unit, the employer was in violation of section 64 of the Labour Relations Act when it sought to deal with its employees as if they were not represented by a duly certified trade union with a legally binding collective agreement. Counsel for the respondents also submitted that in order to find a breach of section 64, the Board must be satisfied that the respondents failed to deduct and remit the dues because of "anti-union" animus. We are satisfied that Nepean's conduct was intended to, and did in fact, interfere with the representation of employees by the union. Such conduct was therefore in contravention of section 64 of the Act, regardless of whether the behaviour was motivated by a general "anti-union" animus.

35We are also satisfied that Nepean violated sections 66 and 70 of the Act. Its behaviour in refusing to deduct and remit dues can only be construed as being intended to apply additional pressure on employees to turn against the union. It reflected the ongoing and continuous objection to dealing with the union as bargaining agent for the employees, and illustrated the employer's continuing view that it could and should represent what it perceived was the interests of the employees as against their legal bargaining agent.

36The respondent Ouellette also breached sections 64, 66, and 70 of the Act in his conduct in refusing to deduct and remit dues. The evidence established that Ouellette made the decision, for the reasons already outlined, not to deduct any of the dues. His was the directing and controlling mind that made the decision and he therefore breached the Act in the circumstances.

37With respect to Steenbakkers, we conclude that he knew Nepean was not deducting and remitting dues as required and that he approved of that approach for the same reasons as did Ouellette. Steenbakkers and Ouellette met together with Manoni in dealing with labour relations matters, and all the decisions appeared to have been taken by both of them or at least approved by each of them. When Ouellette received the written statement from employees indicating that they did not want to be represented by the union or pay union dues, he went on a local television program and advised viewers that despite the Board decision, his employees did not want to pay union dues. In these circumstances, particularly given the long history of impermissible conduct by Nepean and the fact that Ouellette and Steenbakkers were the controlling and directing minds behind that conduct, we are satisfied that Steenbakkers was involved in the decision not to deduct and remit dues and he took this decision for the same reasons as did Ouellette, a continuing refusal to recognize and deal with the union and an attempt to undercut its authority. We therefore conclude that Steenbakkers also breached sections 64, 66, and 70 of the Act.

38No submissions were made with respect to the alleged breach of section 50 of the Act, and the application is accordingly dismissed with respect to the complaint pursuant to that section. The Board declines to give its consent to prosecute, given the passage of time and the availability of other remedies.

39Remedial relief will only issue with respect to the breaches of sections 64, 66, and 70 found in paragraphs 34 and following. A hearing into the appropriate remedial relief is hereby set for April 14, 1988, in Ottawa, before the instant panel. If before that time the parties are able to agree upon the appropriate remedial relief, they are to advise the Board and the hearing will be cancelled. Failing such notification, the hearing will proceed on that date as scheduled.