Retail, Wholesale and Department Store Union v. Cuddy Food Products Ltd., 1988 CanLII 3776

[1988] OLRB Rep. December 1211

1363-87-R; 1928-87-U Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Applicant v. Cuddy Food Products Ltd., Respondent v. United Food and Commercial Workers' International Union, Local 175 and United Food and Commercial Workers' International Union, AFL-CIO-CLC, Interveners; John Henson and 25 others, Complainants v. United Food and Commercial Workers' International Union, AFL-CIO-CLC, United Food and Commercial Workers' International Union, Local 175 and Cuddy Food Products Ltd., Respondents; Deb Johnston and others, Interveners

BEFORE: Owen V. Gray, Vice-Chair, and Board Members J. A. Rundle and B. L. Armstrong.

APPEARANCES: David J. Jewitt and others for Retail, Wholesale and Department Store Union and the complainants in Board File 1928-87-U; Paulene C. Pasieka, George Root and Bob Paterson for Cuddy Foods Products Ltd.; Douglas J. Wray and Don Dayman for United Food and Commercial Workers' International Union, Local 175 and United Food and Commercial Workers' International Union, AFL-CIO-CLC; Christopher Bentley, Debra Crane and Geoff Smith for the interveners in Board File 1928-87-U.

DECISION OF THE BOARD; December 9, 1988

1. In 1986, Cuddy Food Products Ltd. ("Cuddy") announced that it would be building new facilities ("the Cuddy Boulevard facilities") at what later came to be known as 10 Cuddy Boulevard in the City of London. Newly-hired employees began work there in late March and early April, 1987. At the time of their hiring and at other times thereafter, employees at this plant were told by members of Cuddy's management that they were not represented by a union. In August 1987, the then approximately 400 employees at the Cuddy Boulevard facilities received an invitation, posted on company bulletin boards, to attend a meeting with the union which represented the employees ("the Trafalgar Road employees") at Cuddy's other facilities at Trafalgar Road in the City of London. Many of them did. They were then told, for the first time, that that union claimed the right to represent them and had concluded a collective agreement which would govern their wages and working conditions for the next two years. This news was not well received. Many employees at the Cuddy Boulevard facilities (the "Cuddy Boulevard employees") then turned to the Retail, Wholesale and Department Store Union ("RWDSU"), which quickly signed about 80 per cent of them into its membership.

2. On August 20, 1987, RWDSU filed an application under the Labour Relations Act ("the Act") for certification with respect to the Cuddy Boulevard employees (Board File No. 1363-87-R). Cuddy replied that the application was untimely because the affected employees are covered by a collective agreement ("the Cuddy Boulevard agreement") between it and United Food and Commercial Workers' International Union, Local 175 ("Local 175"). The same claim was made in an intervention which was initially filed in the name of "United Food and Commercial Workers' International Union, AFL-CIO-CLC on behalf of Local 175". (The title of these proceedings was amended on the first hearing date at the request of the interveners to show that both the UFCW and its Local 175 were intervening.) RWDSU asserted that the Cuddy Boulevard agreement should be set aside under section 60 of the Act, arguing that it was a first collective agreement which g anted voluntary recognition to a trade union which had not been certified to represent the affected employees and did not enjoy majority support among those employees at the time the agreement was made. In answer to those assertions, the respondent and interveners alleged that Local 175 had bargaining rights with respect to the affected employees under a collective agreement dated August 9, 1985 between Cuddy and "United Food & Commercial Workers International Union, AFL-CIO, CLC on behalf of Local 175 United Food & Commercial Workers International Union, Region 18, AFL-CIO, CLC" which had covered all employees of Cuddy in the City of London with certain exceptions not material to this dispute.

3. Before the Board began hearing the certification application on its merits, 23 Cuddy Boulevard employees filed a complaint under section 89 of the Act in which they alleged that Local 175's acts and omissions in relation to the Cuddy Boulevard agreement violated section 68 of the Act and asked that the agreement be set aside as a remedy for this breach if it could not be set aside under section 60 in the course of the certification proceedings. We determined that this panel would hear both the certification application and the complaint, that our hearing of evidence and argument with respect to issues relevant only to the complaint would be deferred until after hearing all relevant evidence and argument with respect to whether the Cuddy Boulevard agreement would be set aside under section 60 of the Act and that evidence heard in that connection would later be applied, to the extent relevant, to the determination of the complaint.

4. In the first phase of our hearings in this matter we heard the parties' evidence and argument with respect to the section 60 issue. On November 27, 1987, we ruled orally that the Cuddy Boulevard agreement would not be set aside under section 60. Thereafter, our hearings focused on the complaint. The hearing of the parties' additional evidence and argument with respect to the complaint is now complete. Before addressing the complaint, we will set out the facts relevant to our oral ruling of November 27, 1987, together with our reasons for that oral ruling.

I

5. On November 15, 1978, the Board certified the Amalgamated Meat Cutters and Butcher Workmen of North America ("the Amalgamated Meat Cutters") as exclusive bargaining agent for a unit consisting of:

All employees of Cuddy Food Products Limited in the City of London, save and except retail employees, foremen, foreladies, persons above the rank of foreman or forelady, office and sales staff, students employed in school vacation period, and persons regularly employed for not more than twenty-four hours per week.

Cuddy's only London operation at that time was a plant on Trafalgar Road which it had taken over in the late 1970s. On February 7, 1979, Cuddy entered into a collective agreement with Local P1105, Canadian Food and Allied Workers, chartered by the Amalgamated Meat Cutters and Butcher Workmen of North America ("Local P1105"). That agreement contained the following recognition provisions:

ARTICLE 2- RECOGNITION

2.01 The Company recognizes the Union as the exclusive bargaining agent for all employees of it's [sic] plant as defined in Article 3.

ARTICLE 3- EMPLOYEES

3.01 The term "employees" as used in the Agreement shall be all employees of Cuddy Food Products Limited in the City of London, save and except: retail employees, foremen, foreladies, persons above the rank of foreman or forelady, office and sales staff, students employed in school vacation period, and persons employed for not more than twenty-four (24) hours per week.

This collective agreement ("the 1979 agreement") was in effect from February 7, 1979 to February 6, 1981.

6. At some point during the term of the 1979 agreement, Cuddy purchased and renovated the building adjacent (but for an intervening laneway) to its existing building on Trafalgar Road. The old premises continued to be used for the further processing of turkey meat. The new premises were (and still are) used for the further processing of chicken meat as a supplier to McDonald's Restaurants. The old building came to be known informally as "plant A", while the new facilities were known as "plant B". The operations carried on in those respective buildings were referred to in ensuing collective agreements as the "Turkey Processing Division" and "Chicken Patty Division" or "Division A" and "Division B". No question arose about bargaining rights with respect to employees in the new premises. All of Cuddy's then London operations were covered by a single collective agreement ("the 1981 agreement") with "United Food & Commercial Workers International Union, AFL:CIO:CLC on behalf of Local 11OSP United Food & Commercial Workers International Union, Region 18, AFL:CIO:CLC" ("Local 1105P") covering the period February 7,1981 to February 7, 1983. The provisions of Article 2 of that agreement were the same as those of the 1979 agreement. Apart from some changes to the express exclusions which are immaterial to the issues before us, the language of Article 3 of that agreement was also the same as in the 1979 agreement.

7. On January 31, 1983, the Board certified the United Food and Commercial Workers International Union, Local 11OSP as exclusive bargaining agent for

"all employees of Cuddy Foods Products Ltd. at London, Ontario, regularly employed for not more than twenty-four (24) hours per week and students employed in the school vacation period, save and except truck drivers, foremen, foreladies, persons above the rank of foreman and forelady, office and sales staff'.

This language mirrors the provisions of Article 3 of the 1981 collective agreement. No collective agreement was ever concluded with respect to these part-time and student employees, however.

8. The next collective agreement in time ("the 1983 agreement") was in effect from February 8, 1983 to February 7, 198S. The parties were the same as the parties to the 1981 agreement and, apart from the addition of "nurses" as an express exclusion in Article 3, the language of Articles 2 and 3 was unchanged. On August 9, 1985, Cuddy entered into a collective agreement ("the 1985 agreement") with "United Food & Commercial Workers International Union, AFL-CIO, CLC on behalf of Local 175 United Food & Commercial Workers International Union, Region 18, AFL-CIO, CLC" with effect from February 9, 1985 to February 8, 1987. Articles 2 and 3 of the 1985 agreement were the same as in the 1983 agreement.

9. In the course of these proceedings, the trade union interveners sought a declaration or declarations under section 62 of the Act to the effect that Local 175 (or, in the alternative, the United Food and Commercial Workers International Union) has acquired the rights, privileges and duties of the Amalgamated Meat Cutters, Local P1105 and Local 1 1OSP with respect to the employees of Cuddy in London. In that connection, they asserted that:

(a) following its certification, the Amalgamated Meat Cutters transferred its bargaining rights for Cuddy employees to Local P1105;

(b) Local 1105P was the successor to Local P1105 as a result of the 1979 merger between the Amalgamated Meat Cutters and the Retail Clerks International Union to form the United Food and Commercial Workers International Union; and

(c) Local 11OSP merged with Local 175 in 1985.

The object of this claim was to support an argument that Local 175 is, in effect, a trade union which had been certified in 1978 as bargaining agent for a bargaining unit broad enough to include the employees at the Cuddy Boulevard facilities and, accordingly, its 1987 agreement with respect to those employees could not be attacked under section 60 whatever the scope of its bargaining rights may have been under the 1985 collective agreement (see R. v. OLRB, ex parte Lakehead Registered Nursing Assistants Bargaining Association, [1970] 2 O.R. 597, 69 CLLC ¶14,181 (Ont. H.C.)). We deferred consideration of this claim until after we had determined whether section 60 was otherwise applicable. In the result, it was not necessary to deal with this claim under section

63. Don Dayman has been a union business representative since 1964. He is currently a business representative of Local 175. Before the alleged merger of Local 11OSP with Local 175, he was business representative of Local 11OSP. Before the formation of the UFCW, he was business representative of Local P1105 of the Amalgamated Meat Cutters. He was involved in the 1978 certification of the Amalgamated Meat Cutters with respect to employees of Cuddy. He was also involved in the negotiation of each of the collective agreements to which we have referred. He testified that there had been no suggestion during the negotiation of the first of those collective agreements that the language of Articles 2 and 3 in any way narrowed the scope of the bargaining unit for which the Amalgamated Meat Cutters had been certified. Again, after Cuddy began operations in "Plant B", there had been no suggestion that Local P1105's then existing bargaining rights did not include that new location.

64. In the summer of 1986, Mr. Dayman read an article in the London Free Press about Cuddy's plan to build a new plant in London. He then contacted Cuddy's Director of Personnel, George Root, for more information. In the course of the ensuing conversation, he told Mr. Root that the union believed it would have bargaining rights with respect to the new plant. Mr. Root neither agreed nor disagreed. Mr. Root maintained that non-committal posture on behalf of Cuddy when he and Larry Moss, Cuddy's Vice-President of Operations, met with Mr. Dayman shortly thereafter to discuss the matter further. Mr. Dayman asked what Cuddy's plans were for the new plant. He was told that the first operations at the plant would involve the killing and eviscerating of live chickens and deboning of the chicken carcasses; at an undefined point in the future, referred to as "phase two", Cuddy would move to the new plant nearly all of the operations then carried on at plant "A"; in "phase 3", Cuddy's corporate offices would be moved to the new location.

65. The killing and eviscerating of live birds was not an operation then carried on in Cuddy's existing facilities in London. Mr. Dayman told Messrs. Root and Moss that an operation of that sort would ordinarily involve job classifications and terms and conditions of employment different in some respects from those which the parties had established in their existing collective agreement. He suggested to them that the new plant be made the subject of a separate collective agreement, and gave them copies of various collective agreements the union had made with other employers with respect to kill operations. At the end of this initial meeting, Messrs. Root Moss told Mr. Dayman they would have to speak to their superiors and get back to him. Mr. Root testified that they did that. It was the confidential opinion of Cuddy's solicitors, he says, that Local 175 would have bargaining rights with respect to the new plant. It was decided, however, that Mr. Root would not expressly acknowledge the union's bargaining rights, but would simply pursue the matter to find out what Mr. Dayman had in mind with respect to a contract and maintain a willingness to bargain. The union was invited to submit its proposals with respect to the new plant. Mr. Dayman's first written proposal was forwarded to the company in December 1986.

66. In the meantime, the union gave notice to bargain for the renewal of the 1985 agreement on December 8, 1986. Union representatives had by then met with Trafalgar Road employees to formulate proposals and select a negotiating committee. Mr. Dayman, John Hurley (another business representative of Local 175) and that employee committee began meeting with Mr. Root and Mr. Patterson, another company representative, on February 3, 1987 to discuss their proposals for the renewal of the existing collective agreement. On either the day before or the day after this meeting, Messrs. Dayman and Hurley met company representatives in the absence of the employee committee to discuss the union's proposals with respect to the new plant. Their discussions with the company about the new plant were thereafter always held separate and apart from the meetings they attended with the employee negotiating committee to negotiate for the renewal of the existing collective agreement.

67. Local 175 applied for conciliation services by request to the Minister dated February 27, 1987. In that request, Mr. Dayman stated on behalf of the union that the affected bargaining unit was "all employees", but where required to list the number and dates of meetings held in an effort to make a collective agreement, he listed only the meetings which the employee committee had attended. A conciliation officer was appointed on March 11, 1987. Meetings with the conciliation officer focused on the matters discussed earlier in meetings at which the employee committee had been present, which included a demand by Cuddy that the words "in the City of London" in Article 3.01 be changed to "1226 Trafalgar Road, London, Ontario". That demand was resisted by Local 175. Discussions about a separate agreement for the new plant remained separate; those matters were not discussed between the parties during conciliation.

68. On March 18, 1987, when he felt the negotiations with respect to the new plant were not going well, Mr. Dayman sent the following registered letter to Mr. Root:

Re: New Plant in London. Ontario

This letter will serve to confirm the Union's position concerning the new plant in London, Ontario. We believe we hold bargaining rights for any employees of the Company in the City of London, based on our certificates and collective agreement. Furthermore, if you attempt in avoid [sic] our bargaining rights by using a different corporate vehicle, we will rely on the provisions of the Labour Relations Act, including Section 1(4), to protect our bargaining rights.

Furthermore, we object to your attempt in bargaining to erode our bargaining rights by proposing a municipal address in the recognition clause. If this position is maintained much longer by the Company, we may be forced to file a complaint of unfair labour practice with the Labour Relations Board.

We are of course prepared to discuss this matter with you in an effort to reach a mutually satisfactory resolution to this situation. Please be advised, however, that any such discussions, past or future, are without prejudice to our position as outlined above.

This precipitated some progress in negotiations from the union's perspective. The threat of filing a complaint with the Board was not carried out.

16. Up to this point, no one was employed at the new Cuddy Boulevard facilities. That changed in late March or early April when newly hired employees began working at that plant. After it learned of this, on April 22, 1987 the union filed the following grievance under the expired 1985 agreement (the terms of which were still in effect by virtue of subsection 79(1) of the Act):

Date of Occurrence: April 20th - ongoing

NATURE OF GRIEVANCE:

The Union hereby grieves on its own behalf and on behalf of the employees it represents that the Company is violating the collective agreement in its entirety at the 10 Cuddy Boulevard, London location.

CONTRACT SECTION(S) VIOLATED:

All articles & clauses.

REMEDY SOUGHT: 1) Declaration of violation. 2) Direction to comply.

3. Compensation to the union and the employees with interest.

4. Any other appropriate relief.

This grievance was never pursued.

17. The office of the Deputy Minister of Labour issued a "no board" report on May 8, 1987. Subsequently (10 days to two weeks prior to June 4, 1987), the union held a meeting to which only Trafalgar Road employees were invited. They were asked whether they wished to accept the company's last offer or go on strike. They voted to strike. Negotiations continued.

18. On June 1, 1987, before the Trafalgar Road employees went on strike, Cuddy and Local 175 agreed orally on the terms of a collective agreement with respect to persons employed by Cuddy at 10 Cuddy Boulevard. This agreement was reached at a meeting which, like all other meetings concerning 10 Cuddy Boulevard, involved no employees of Cuddy. Mr. Dayman would not sign a written version of this oral agreement at that time, however. He gave no reason for this then. The reason he gave in his testimony before us was that he was not sure where the unconcluded negotiations with respect to Trafalgar Road employees were going or "what complications we might get into."

19. Local 175 took the Trafalgar Road employees out on strike on June 4, 1987. Bargaining continued during the strike, and resulted in a settlement which brought the strike to an end on June 19, 1987. The settlement was ratified on June 20, 1987 at a meeting to which only Trafalgar Road employees were invited. The written terms of the settlement made no provision for alteration of the recognition provisions in Articles 2 and 3 of the 1985 agreement, but both Cuddy and Local 175 say the terms of the settlement only applied to employees at the Trafalgar Road facilities.

20. The Cuddy Boulevard agreement was executed on July 30, 1987. At that time, no formal collective agreement had been signed reflecting the matters agreed to in the memorandum of settlement of June 19, 1987. No such document had been signed when we gave our oral ruling on November 27, 1987; it was not then necessary to consider whether the settlement of June 19th, once ratified, had attained the status of a collective agreement.

21. Messrs. Root and Dayman were the sole witnesses of the respondent and interveners, respectively, in this first phase of the hearing of these matters. Counsel for the applicant (who was also counsel for the complainants) was asked to and did provide (in writing, with oral amendments) the following statement of the facts he expected would be established by the testimony of the witnesses he proposed to call in this phase of the hearing:

CHRONOLOGICAL STATEMENT OF EVIDENCE

TO BE PRESENTED BY RETAIL, WHOLESALE,

DEPARTMENT STORE WITNESSES

1. Tom Collins will testify concerning the certification of Retail, Wholesale in 1986 for East Huron Poultry, a plant owned by the Respondent Cuddy Food Products Limited. Retail, Wholesale negotiated the first collective agreement ever for those employees in the fall of 1986 and during that process became acquainted with Mr. George Root and the Cuddy management team.

2. March 27th, 1987 - Certain employees commenced work at 10 Cuddy Boulevard and these employees will be called to testify that they were advised by management that the plant that they were going to be working in was a non-union plant. The specific members of management who made these representations were Mr. George Root the General Personnel Manager~ Mark Bossy the Personnel Manager for the 10 Caddy Boulevard Plant, and John Lapin the supervisor at the 10 Cuddy Boulevard Plant. Other witnesses hired throughout April, May and June will also give testimony that they were similarly advised that the plant was a non-union plant at the time of their hiring. Certain of these employees will also give evidence that they began to make inquiries of Retail, Wholesale and Department Store Union (and, later, the CAW) to determine if a union could be brought into their plant.

3. In addition these employees will testify that their salary, benefits and working terms and conditions were separate and at all times inferior to those in the Trafalgar Road plant. There was no interaction or intermingling of employees between the two plants and at all times they were treated as a separate operation with separate management designated specifically to the 10 Cuddy Boulevard Plant.

4. On or about April 15th, Tom Collins had a brief discussion with George Root in a hotel. At this time Mr. Root indicated that he was negotiating with UFCW for the Trafalgar Road or turkey plant collective agreement.

5. Mr. Root specifically indicated to Tom Collins that he was surprised that Retail, Wholesale and Department Store Union had not gone after the 10 Cuddy Boulevard plant, especially as they were considering calling the plant East Huron Poultry. Mr. Root also indicated that at this point in time they were negotiating with UFCW only with respect to the Trafalgar Street plant but that they were going to look into a recognition agreement for the 10 Cuddy Boulevard plant. Tom Collins indicated to Mr. Root that he would contact him later to determine if the plant was going to be called the East Huron Poultry Plant in which case he felt Retail, Wholesale might have some claim to the work.

6. Within a couple weeks of this meeting on April 15th, Mr. Collins spoke to Mr. Root who advised him that the plant was not going to be called East Huron Poultry and at that point Mr. Collins let the matter drop.

7. On or about June 2nd, 1987 members of management had meetings with the 10 Cuddy Boulevard plant employees advising them that there was going to be a strike at the Trafalgar Road plant. They further advised the employees at 10 Cuddy Boulevard that they were non-union and were not part of the strike in any way and further gave them general advice about what to do in the event picket lines were set up around the 10 Cuddy Boulevard plant. Specifically they were told to contact management who would arrange for a bus to bring the employees into work if there were picket lines. Management made it extremely clear at this meeting that the 10 Cuddy Boulevard plant was non-unionized and was not to participate or assist in any way in the strike at the other plant.

8. From June 4th to June 22nd the employees at the Trafalgar Road plant were on strike while the employees at the 10 Cuddy Boulevard plant continued to work. They did not participate in the strike nor did they participate in any ratification vote. They were not even consulted in any way or contacted by UFCW concerning any issue as to union representation or the strike.

9. The employee witnesses will testify that UFCW did not contact them at all until the meeting which eventually took place on August 9th.

10. During the month of July, the witnesses employed at 10 Cuddy Boulevard continued to attend at work and again their terms and conditions of employment remained inferior in all respects to those at the Trafalgar Road plant. Those employees will also indicate that they had no contact from UFCW or management concerning the collective agreement which was allegedly signed on July 30th.

11. In late July, Tom Collins had another phone conversation with Mr. Root concerning whether or not there was a collective agreement at the 10 Cuddy Boulevard plant. It should be noted that employees at 10 Cuddy Boulevard continued throughout this period to contact Retail, Wholesale requesting that they form a union in that plant as they thought it was a nonunion plant. In any event, in late July Mr. Collins asked Mr. Root directly if there was a collective agreement for the 10 Cuddy Boulevard plant. Mr. Root advised that there was not a collective agreement in existence at that time but that they were planning to sign a collective agreement in the near future. At this point it was common knowledge that the collective agreement had been concluded and ratified for the Trafalgar Road plant on or about June 19th. It was not until this conversation with Mr. Root that RWDSU had any direct knowledge whether or not the Cuddy Boulevard plant employees were covered by any agreement applicable to the Trafalgar Road plant(s).

12. On or about August 3rd or 4th notices were posted in the 10 Cuddy Boulevard plant and meetings held with groups of employees in various sections of the plant by management to advise the employees that a membership meeting was going to be held with UFCW on August 9th. The employees were advised that they were free to attend or not but were strongly urged to attend. They were also advised by their supervisors that the union had a contract but that they could go to the meeting and listen and if they did not like the contract or the union it was their right to refuse to have a vote. In addition they were advised that it was also their right to vote for UFCW or another trade union or no union at all if they wanted. The employees felt that they could either accept or reject the union or accept or reject the contract which had been negotiated for them and that the meeting was just to determine if they wanted to become members.

13. The contacts and notices for the meeting were posted and/or delivered by management and at no prior time did UFCW contact the employees directly.

14. On or about August 9th, the UFCW representatives were asked why the employees were not allowed to vote with the other plant employees on the previous contract (the memo of June 19). The answer they received from Mr. Damien and Mr. Hurley was that they did not have a right to vote on that contract as they were a separate plant.

15. They were also asked why there were separate agreements between the two and again the same answer was received, i.e. the plants were separate and distinct and they had separate collective agreements because of that.

16. Employees also raised questions as follows:

• do we have to accept the UFCW? - the answer given was yes;

• do we have a choice whether or not to join - the answer given was you have no choice in the matter;

• can we decertify UFCW - the answer given was no, not at this time.

Mr. Damien was asked to confirm these answers in writing but he refused.

17. In general at this meeting, there was a lot of unhappiness expressed when the terms of the collective agreement were disclosed, and the questions and answers noted above were given.

18. During the course of the meeting some employees raised the fact that they were going to go to the Canadian Union of Auto Workers.

19. All employees will also confirm that they had not had any union dues deducted until the second week of October, 1987.

20. Tom Collins will also testify that the triggering events which caused him to file the application for certification were the events at the meeting of August 9th and in particular the fact that employees were looking at the Canadian Auto Workers Union to represent them in their relationship with Cuddy Food Products Limited. Based on all these facts Mr. Collins concluded that UFCW only held voluntary recognition rights and likely had very little if any support from the employees.

21. The employees will also give evidence that their job functions are the same as those employees employed in the Trafalgar Road plant. The only different job functions which would not fall within existing job classifications in the Trafalgar agreement consist of approximately 20 positions involved with the "kill" aspect of the Caddy Street operation exclusively.

The other participants could not agree that all of the allegations set out in this statement were true. Before hearing the applicant's evidence in support of these allegations, we invited submissions on whether section 60 of the Act would be applicable even if all these allegations were true and (despite its application under section 62) Local 175 was considered "a trade union that had not been certified as the bargaining agent" for employees in the bargaining unit covered by the Cuddy Boulevard agreement.

II

22. As we have already noted, the position of both Cuddy and the interveners was that Local 175's bargaining rights under the 1985 collective agreement covered all of the City of London, not just the facilities at Trafalgar Road; accordingly, the Cuddy Boulevard agreement covered employees for whom Local 175 already had bargaining rights and was not, therefore, a first collective agreement within the meaning of subsection 60(1) which provides:

60.-(1) Where an employer and a trade union that has not been certified as the bargaining agent for a bargaining unit of employees of the employer enter into a collective agreement, or a recognition agreement as provided for in subsection 16(3), the Board may, upon the application of any employee in the bargaining unit or of a trade union representing any employee in the bargaining unit, during the first year of the period of time that the first collective agreement between them is in operation or, if no collective agreement has been entered into, within one year from the signing of such recognition agreement, declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit.

Implicit in that position was the proposition that the trade union party to the Cuddy Boulevard agreement, Local 175, was the trade union party to the 1985 agreement.

23. The trade union party to the 1985 agreement was described in it as "United Food & Commercial Workers International Union, AFL-CIO, CLC on behalf of Local 175 United Food & Commercial Workers International Union, Region 18, AFL-CIO, CLC." Some "parent" unions create "locals" for administrative purposes but retain in their own name the legal bargaining rights and corresponding legal representation obligations with respect to the bargaining units from which the local's membership is drawn. In other union organizations, locals (which under the Act are ordinarily treated as trade unions distinct from their "parent") hold the bargaining rights but receive various forms of assistance from their parent union, including assistance in collective bargaining. Because of this variety of practices, a description in a collective agreement of the trade union party as "[parent] on behalf of [local]" can be ambiguous as to whether it is the parent or the local which holds bargaining rights for the employees covered by the agreement. Having regard to the evidence before us, we were satisfied that Local 175 was the trade union with bargaining rights under the 1985 agreement, and so indicated in our oral ruling of November 27, 1987.

24. The applicant argued that

a) the words "of its plant" in Article 2 of the 1985 agreement limited that agreement's scope to the Trafalgar Road facilities;

and,

b) even if Local 175's bargaining rights under the 1985 agreement did extend to all of the City of London, Local 175 lost those rights with respect to 10 Cuddy Boulevard when, in bargaining for the renewal of the 1985 agreement, it ratified the June 19th settlement which was understood not to cover 10 Cuddy Boulevard

so that in either case the Cuddy Boulevard agreement constituted a voluntary recognition and first collective agreement with respect to employees at 10 Cuddy Boulevard.

25. In many cases, the scope of bargaining rights for employees of an employer are first defined by this Board in a certification application. The Board's approach to the matter of geographic scope of bargaining rights was described in T.R. S. Food Services Limited, [1980] OLRB Rep. Apr. 542, at paragraphs 4 and 5:

26. Where an employer has only one location within a municipality, the Board's consistent practice, apart from the construction industry, has been to describe the geographic scope of the bargaining unit by reference to the municipality rather than the respondent's particular location. This practice results from a balancing of two competing interests: the individual's interest preserved by section 3 of the Act to be free to join a trade union of his own choice, on the one hand, and, on the other, the concern of the Board as well as the union and employees involved in any particular case that sufficient stability adhere to the bargaining rights conferred. (See generally the Board's decisions in the Great Atlantic & Pacific Tea Company Limited, [1969] OLRB Rep. Jan. 1017; Perimeter industries Limited, [1973] OLRB Rep. Mar. 174; Wix Corporation Limited, [1975] OLRB Rep. Aug. 637; Inglis Limited, [1977] OLRB Rep. Mar. 128; and York Steel Construction Limited, decision dated February 25, 1980, File No. 1501-79-R, as yet unreported).

27. While limiting a bargaining unit to the respondent's particular location would give considerable latitude to an individual's freedom to join a trade union of his own choice, it could, at the same, jeopardize the stability of the bargaining rights conferred upon the union. If an employer moves the location of its operation in a situation where the bargaining unit has been defined by reference to the employer's street address, the union's bargaining rights may be extinguished by the move. The Board's general policy of describing the geographic scope of a bargaining unit by reference to the municipality in which the employer's operation is situated instead of the particular location inhibits bargaining rights from being disturbed in this manner.

28. Subject to sections 15 and 68 of the Act (and, where bargaining rights are extended, subject also to section 60), the employer and trade union parties to a collective bargaining relationship are free to amend, extend or abridge the bargaining rights established at the time of certification or in a prior agreement. In Gilbarco Canada Ltd., [1971] OLRB Rep. Mar. 155, the Board observed that:

Where bargaining rights in a collective agreement are not as extensive as those contained in a certificate, then that is prima facie evidence of an abandonment of that portion of the bargaining rights contained in the certificate, but not contained in the collective agreement. In effect the collective agreement supplants the rights given by the Board's certificate and the Board's certificate is spent once the collective agreement is signed. Or to put it another way the best evidence of the bargaining rights extant are those that are contained in the collective agreement. In the same way as bargaining rights in a collective agreement supplant bargaining rights contained in a certificate so too bargaining rights in subsequent collective agreements may supplant bargaining rights contained in prior collective agreements.

27. The Board's practice in certification applications is a relevant consideration in interpreting collective agreement recognition language, as arbitrator 0. B. Shime observed in Re Canadian Appliance Manufacturing Company Ltd. (1978), 1978 CanLII 3509 (ON LA), 20 L.A.C. (2d) 59, at pages 63 and 64:

It is not unusual to find a union described as the sole bargaining agent for a group of employees in a specific municipal area. Certificates granted by the Ontario Labour Relations Board generally define a bargaining unit as being within a municipal area: see, e.g., Canadian Telephone Employees' Assoc. v. Tele-Direct Ltd., [1971] O.L.R.B. Rep. 490 (Boscar) at p. 491. Specific locations or street addresses are rarely, if ever, used to define the union's jurisdiction: see, e.g., International Union, United Automobile, Aerospace & Agricultural Implement Workers of America g. Canadian Chromola.x Co., [1968] O.L.R.B. Rep. 980 (Egan); Bakery & Confectionery Workers' Int'l Union of America, Local 264 v. Great Atlantic & Pacific Tea Co. Ltd., [1969] O.L.R.B. Rep. 1017 (O'Shea). To do so would eliminate bargaining rights by the mere change of address or location. The general practice has therefore been to describe bargaining units in terms of a municipal area in order to avid the problems or industrial unrest that might occur should the company change its location.

Of course the limitation of bargaining rights to a municipal area does not completely protect bargaining rights because a company may move its operations to another municipality and, in that case, the union will lose such rights: see, e.g., United Steelworkers of America, Local 4487 v. Inglis Ltd., [1977] O.L.R.B. Rep. 128 (Burkett) at p. 137. This potential loss is particularly offset by permitting the union to have bargaining rights in the event that new operations are commenced by the company within the municipality: see, e.g., Amalgamated Meat Cutters & Butcher Workmen of North America, AEL CIO, Local Union 633 v. Homedale IGA Foodliner (St. Thomas), [1964] O.L.R.B. Rep. 652; United Rubber, Cork, Linoleum & Plastic Workers of America v. Goodyear Service Stores (1965), C.L.L.C., para. 16,027, p.⁷¹¹.

This general practice has, for the most part, been adopted and understood by employers and unions when drafting collective agreements. No doubt unions have from time to time during bargaining sought to expand the recognition clause of their agreements to protect against possible changes in location by employers, while employers have sought to contract the recognition clauses to limit the employees who are represented by the union. However, bargaining rights are generally considered to be coterminous with the descriptions contained in a collective agreement: Goodyear Service Stores, supra [65 CLLC ¶16,027]. In short, the practice of describing the bargaining unit in a collective agreement and the general intent of the parties has generally been considered to be consistent with the practices and understandings of the Ontario Labour Relations Board, with the parties having full freedom to modify such recognition clauses through collective bargaining. The onus is therefore on the party which seeks to depart from the generally understood practice to demonstrate that the collective agreement warrants such an interpretation.

28. Article 3 of the 1985 agreement, and particularly its "all employees ... in the City of London" starting point, clearly had its linguistic origins in the certificate issued to the Amalgamated Meatcutters in 1978. If the words "of its plant" did not appear in Article 2 then, in view of the principles reviewed in Re Canadian Appliance Manufacturing Company Ltd., supra, there would be no doubt that employees at 10 Cuddy Boulevard fell within the scope of the bargaining rights recognized in that agreement. What, then, is the meaning and effect of the words "of its plant"?

29. The word "plant" can be used to collectively denote the fixtures, machinery and other property used in an industrial process, and in that sense may be used synonymously with the word "factory." The difficulty which arises if it is thought to be used in that sense in Article 2 can be illustrated by asking when the sum total of the fixtures, machinery and other property used by an employer in its business will collectively constitute more than one "plant." In colloquial usage, two groupings of assets which are each self-contained functionally and are physically separate each from the other would each generally be described as a "plant." The degree of physical separation required for this result is not a question which can be determined by reference to a dictionary, but in this case we know that the parties to this agreement thought and spoke of the Trafalgar Road facilities as consisting of two "plants", "Plant A" and "Plant B", even though the two facilities were separated only by a laneway. Counsel for the applicant would have us conclude that the singular word "plant" in Article 2 was intended by the parties to describe collectively two physically separate buildings housing functionally separate processes which the parties in other contexts thought and spoke of as constituting two "plants". If the word "plant" as used in Article 2 could comfortably embrace two plants, though, there is no reason why it could not embrace a third. What counsel was really asking, therefore, is that we add the word "existing" to the word "plant" in Article 2. The parties could have done that themselves, but did not.

30. One must, of course, consider the word "plant" in the context in which it appears. Article 2 says:

The Company recognizes the Union as the exclusive bargaining agent for all employees of its plant as defined in Article 3.

As Article 3 clearly does not itself define a plant in the sense counsel for the applicant sought to have us interpret that term, the phrases "as defined in Article 3" and "of its plant" in Article 2 must both be referring to "employees."

31. In a labour relations context, the word "plant" is often used adjectivally with the word ''employees'' to distinguish those involved in production functions from those involved in office, clerical, technical, sales and other functions. In that sense, a unit of the sort defined in the certificate granted in 1978 to the Amalgamated Meat Cutters can be and often is referred to as a "plant unit" or, more accurately, a "full-time plant unit." It could comfortably be described as a "plant unit" even if it emb aced the "plant employees" at more than one "plant." If "employees of its plant" in Article 2 is taken as meaning "its plant employees", the difficulty of understanding how the parties could have understood the phrase to apply to employees in two plants is overcome. Understood in that way, the word "plant" imposes a functional limitation rather than a geographic one, and the entire phrase "employees of its plant as defined in Article 3" quite literally means that the "employees of its plant" for whom Cuddy recognizes the union as exclusive bargaining agent are "as defined in Article 3."

32. Counsel for the applicant argued that Local 175's behaviour in negotiating a separate agreement with respect to Cuddy Boulevard employees and in failing to pursue the claims asserted in its March letter and April grievance show that it thought its bargaining rights under the 1985 agreement did not extend beyond the Trafalgar Road facilities. These facts do not point unerringly to Local 175's having had such a belief. We have no difficulty believing Mr. Dayman when he says Local 175 thought it did have rights for all of London, but preferred negotiation to litigation. In any event, whether one accepts Mr. Dayman's statement in this regard or draws the inference invited by counsel for the applicant, a party's secret belief or private doubt, as distinct from the objective facts by which the belief or doubt might be supported, is not a particularly helpful guide to the meaning of a collective agreement. Of course, this applies equally to the evidence relied on by the applicant and to Mr. Root's evidence that Cuddy secretly believed that Local 175 did have London-wide bargaining rights.

33. We concluded that the phrase "employees of its plant as defined in Article 3" in the

1985 agreement meant that the "employees of its plant" for whom Cuddy recognized the union as exclusive bargaining agent were "as defined in Article 3." That interpretation seemed to us less strained than one which required us to read "plant" as "existing plant(s)" and for that reason was the interpretation we preferred. That interpretation was reinforced by Mr. Dayman's evidence that a narrowing of the geographic scope of the bargaining unit was not a topic Cuddy had ever raised or discussed with him at the bargaining table in the 1978-79 negotiations or any other negotiations before 1987. While the absence of any such discussion would not render ineffective language which otherwise clearly had that effect, the principles to which we have earlier referred, and particularly the concern for stability of bargaining rights, suggest that language which does not clearly alter the scope of bargaining rights should not readily be supposed to do so, especially if the language at issue was never discussed by the parties in those terms.

34. In support of its alternate argument that Local 175 lost any rights it had with respect to

employees at 10 Cuddy Boulevard when it ratified the June 19th settlement which Local 175 and

Cuddy understood would not cover employees at 10 Cuddy Boulevard, counsel cited the following

statements of the Board in Frito-Lay Canada Limited, [1978] OLRB Rep. Sept. 831 at paragraph

6:

6. The Board has expressly recognized that, once a collective agreement is made, the source of bargaining rights shift from the certificate to the agreement itself. As the Board stated in Gilbarco Canada Ltd., [1971] OLRB Rep. Mar. 155, "in effect the collective agreement supplants the rights contained in the certificate and the Board's certificate is spent once the collective agreement is signed". This means that where employees, originally included in the Board's certificate, are subsequently excluded from the scope of the collective agreement, the bargaining agent cannot be said to have retained any bargaining rights in respect of these employees. See Graphic Centre (Ontario) Inc., [1977] OLRB Rep. Jan. 379.

7. The issue in Frito-Lay was whether laboratory technicians and a quality control supervisor should be included in a unit of office staff for which the Retail Clerks Union, Local 206, was seeking certification. That question turned largely on whether that union's then existing bargaining rights extended to employees in those classifications, as the union claimed. The union had been certified 10 years earlier for an "all employee" unit of employees of a predecessor employer. Although laboratory and quality control technicians were not expressly excluded from the unit by the Board's certificate, they had been expressly excluded from the unit described in the recognition clause of the first and every subsequent collective agreement thereafter. That was the context in which the Board made the quoted observations and concluded that the union did not then have bargaining rights for employees in question.

8. Once acquired, bargaining rights for employees under the Labour Relations Act cannot be lost by a trade union (so long as it continues to exist) unless it abandons those rights or they are terminated by the Board under one of the sections of the Act. The Board did not purport to invent a non-statutory basis for termination of bargaining rights in Frito-Lay Canada Limited, supra. As appears from its reference to the decision in Gilbarco Canada Ltd., supra, and from the passage we quoted from that decision in paragraph 26 above, the basis of the Board's decision in Frito-Lay was that the union there had earlier abandoned bargaining rights with respect to the employees in question there. Any question whether abandonment has occurred is a question of fact. In the Frito-Lay case, the express exclusion of the subject employees from the recognition clauses in successive collective agreements over a period of ten years strongly supported an inference of abandonment which the union had not rebutted. The factual circumstances here are quite different from those in Frito-Lay.

9. If the steps Cuddy and Local 175 took in June 1987 were sufficient to then create a collective agreement covering all full-time plant employees in London except those at 10 Cuddy Boulevard, that neither effected nor reflected abandonment by Local 175 of its bargaining rights with respect to Cuddy Boulevard employees. Neither Local 175 nor Cuddy intended that course of action to effect an abridgement of Local 175's total bargaining rights; rather, the settlement was intended to cover just one of the two bargaining units into which the single bargaining unit defined in the 1985 agreement had been or was to be reorganized in accordance with the parties' intentions in that regard. Counsel for the applicant said that could not be done, however, citing sections 41, 49, 50, 52 and 72(5) of the Act in support of the proposition that a bargaining unit is legally indivisible.

10. The freedom of parties to a collective bargaining relationship to redefine bargaining rights, to which we made reference in paragraph 26, has been understood to include the freedom to consolidate two or more existing bargaining units into one bargaining unit: Bestview Holdings Ltd., [1983] OLRB Rep. Feb. 185. For the same labour relations reasons which support that view, the parties to a collective bargaining relationship must also be free to divide a bargaining unit into two or more units. This is not inconsistent with exclusive recognition (section 41), nor with the requirement that there be no more than one collective agreement at a time with respect to employees in a single bargaining unit (section 49).

11. A single collective agreement document may address more than one bargaining unit (Ontario Hydro, [1978] OLRB Rep. Aug. 754; Milltronics Ltd., [1980] OLRB Rep. Jan. 56; K-Mart Canada Ltd., [1982] OLRB Rep. Nov. 1660; Bestview Holdings Ltd., supra) and a collective agreement covering one unit may consist of more than one document (see Graphic Centre (Ontario) Inc., [1976] OLRB Rep. May 221 at paragraph 12). It follows that a collective agreement can be amended during its term to divide the bargaining unit described in it into two (or more) units and, further, that the terms referable to each unit can be put into separate collective agreement documents, provided that subsection 52(3) is complied with by ensuring that (unless and until the consent of the Board is obtained to a shorter duration in either unit) the term of operation prescribed in each such document remains the same as that of the pre-amendment collective agreement. Accordingly, division of the unit described in the 1985 agreement into two units was possible even if, as counsel for the applicant suggested at one point, the parties' June 1987 settlement brought into effect at that time a collective agreement with a recognition clause unchanged in scope from that of the 1985 agreement. Even in that event, the July 30th Cuddy Boulevard agreement could have effect as an omnibus amendment to that initial collective agreement, albeit one about which it could be said (although perhaps not by the immediate parties to it) that its provisions as to term of operation are ineffective to the extent they are inconsistent with the corresponding provisions of the June 1987 settlement.

12. Counsel for the applicant argued that effect should not be given to the creation of a separate bargaining unit and making of a separate collective agreement with respect to Cuddy Boulevard employees because this would create undesirable uncertainty about the timing of the "open period" during which employees are supposed to have the opportunity to terminate bargaining rights if they wish.

13. When sections 5, 57 and 61 of the Act are read together, it is apparent that some opportunities to terminate or displace bargaining rights are intended to be available to employees whatever might be done by their employer and the union currently representing them, while the timing, duration and even occurrence of other such opportunities is contingent on matters over which the employer and union do have control. Only the two month open periods referred to in subsection 57(2) fall into the "guaranteed" category. Only they are certain and predictable in timing, duration and occurrence, from an employee's point of view (although even they are perhaps not entirely inviolate - see Collingwood Fabrics Inc., [1985] OLRB Rep. Feb. 228). Neither recognition of a freedom to divide a bargaining unit nor the possibility of its exercise creates any general uncertainty or unpredictability about the occurrence or timing of any of the "guaranteed" two month periods, bearing in mind the protection afforded by subsection 52(3) of the Act. There is no uncertainty about the guaranteed two month period here: that period occurred during the last two months of operation of the 1985 collective agreement, which ended February 8, 1987. The uncertainty here, even in retrospect, was about how long the opportunity to displace or terminate bargaining rights remained open in the period after the "guaranteed" two month period was over, having regard to subsequent events and the proper legal characterization of them. That kind of uncertainty about the extended open period which may follow a "guaranteed" one is not uncommon; the potential for it exists whether or not one acknowledges a freedom to divide bargaining units.

14. The way the parties went about exercising their freedom to divide the bargaining unit described in the 1985 agreement and the absence of a body of jurisprudence dealing in any detail with the legal mechanics of exercising that freedom together created some uncertainty about when the division became legally effective. That question was not fully explored in argument at this first stage of the proceedings. It was not one which it was necessary for us to then answer, because no possible answer could affect the applicability of section 60 to the Cuddy Boulevard agreement.

15. When a bargaining unit has been or is to be divided into two (or more) units, there is no reason why the first collective agreements with respect to each of the resultant units should have to be made simultaneously in order to avoid a loss of bargaining rights. While the freedom to divide or consolidate bargaining units is limited by sections 15 and 68 of the Act, it is not limited by section 60 because simple division or consolidation does not involve extension of bargaining rights to previously unrepresented categories of workers.

16. Whatever word Mr. Root may have used in conversations with Mr. Collins prior to July

30, 1987 to describe the agreement he was negotiating or had negotiated with respect to 10 Cuddy Boulevard, we were satisfied that that agreement was not a "recognition" agreement. Employees at 10 Cuddy Boulevard fell within the scope of Local 175's bargaining rights under the 1985 agreement, which had been in effect for considerably longer than the one year period specified in section 60. Local 175 had not abandoned its rights with respect to those employees before entering into the Cuddy Boulevard agreement.

45. Subject to the outcome of the complainants' claim that it should be set aside by way of

remedy for the alleged breach of section 68, the Cuddy Boulevard agreement therefore constituted

a bar to any certification application with respect to the employees covered by the agreement and

we so ruled on November 27, 1987.

III

46. At the conclusion of our oral ruling on November 27, 1987, we advised the parties we had some doubt about whether the allegations of the complainants, if true, established a prima facie case for the granting of any remedy which involved setting aside the Cuddy Boulevard agreement. We noted that if the complaint would not in any event lead to a remedy which affected the Cuddy Boulevard agreement, the certification application could be finally disposed of and the employer's direct interest in the remaining issues brought to an end without hearing further evidence. We directed that the parties provide us with their arguments on that issue on the next scheduled hearing days in January 1988.

47. Thereafter, by letters dated November 27 and December 23, 1987, counsel for the complainants sought leave to amend their complaint to

(a) add three employees as complainants,

(b) add Cuddy as a party respondent "to the extent that relief is necessary against" it, Cuddy having been originally named in the complaint as a party affected by the complaint,

(c) add the allegation that the complainants had also been dealt with contrary to subsection 72(5), and

(d) make additional assertions of fact and claims for relief in respect of alleged violations of sections 68 and 72(5).

The respondent unions and Cuddy consented to these amendments when our hearings resumed January 6, 1988. Counsel for the complainants then entered into his argument on the issue scheduled for hearing that day. During that argument, the Board noted that there had been no allegation that any of the alleged acts or omissions of Cuddy constituted a violation of the Labour Relations Act, and asked why, even if it had the jurisdiction to do so in those circumstances, the Board would set aside a collective agreement as against a party who had not breached the Act. Counsel responded to that question by requesting leave to amend the complaint to allege that Cuddy had breached some provisions of the Labour Relations Act by reason of the acts and omissions of members of its management to which reference had already been made in their particulars and in proceedings to date. He also asked for an adjournment so that he could put into writing particulars of the sections breached and of how the acts and omissions amounted to breaches of those sections. When pressed, counsel said those sections would be 57, 61(2), 64, 66(c) and 72(5). Both the amendments and the adjournment were opposed by the respondents.

48. The factual basis of the proposed new claim against Cuddy was known when it was pleaded in support of the complaint that the intervener trade unions had violated section 68 of the Act. Our hearing of evidence which could later be applied to the complaint had proceeded on the basis that no breach of the Act by Cuddy was being alleged. That circumstance might well have affected the way Cuddy and the respondent unions had responded to and presented evidence in the hearings up to that point. Retrospective application of evidence heard and admissions made in those hearings to this new claim could therefore have prejudiced those respondents. It would have been difficult to assess what that prejudice actually was and determine how it could be cured, if at all. That assessment would have delayed these proceedings. A cure for prejudice might also have caused delay. It might have been necessary, for example, to permit the recall of one or both of the witnesses. Apart altogether from the delaying effect of an adjournment at the request of the complainants, the requested amendment would have substantially altered the nature of the issue which the parties had come that day prepared to argue, and that consideration might well have necessitated an adjournment at the respondents' request.

49. We considered the prospect that the complainants might file a separate complaint in the same terms as their proposed amendments to this one (a prospect with which the respondents said they were prepared to live) and took into account the desirability of hearing related matters together in a single proceeding. We had also to consider that these proceedings have a certification application at their heart. While expedition is important in all labour relations matters, it is especially important in certification matters. As the Board observed in Fleck Manufacturing Limited, 62 CLLC ¶16,236:

It is incumbent on all parties to proceedings before the Board to investigate matters relevant to their cases as early as possible and if they intend to make allegations of improper or irregular conduct against another party to do so promptly. The object of this requirement, which finds expression in section 48 [now 72] of the rules, is obviously to expedite and facilitate the hearing and processing of applications under the Act and to avoid prejudice, delay or embarrassment to the parties involved. Delayed and last-minute allegations, which lead to adjournments or cause prejudice, embarrassment or unnecessary expense to the other parties, and which with reasonable diligence could have been made at a more timely stage of the proceedings will not be entertained except for good and sufficient cause.

The obligation to give timely notice of allegations of misconduct on which they propose to rely applies as much to those who support an application for certification as to those who oppose it: Gignac, Sutts, Nosanchuk, [1973] OLRB Rep. Aug. 438. Even though they had particularized at the outset the behaviour which they now wished to characterize as contrary to the Act, the complainants' failure to so characterize it at the earliest opportunity was a breach of subsection 72(1) of the Board's Rules of Procedure, which requires not only that each party file a timely statement of allegations of improper or irregular conduct on which he relies, but also that

where he alleges that the improper or irregular conduct constitutes a violation of any provision of the Act, he shall include a reference to the section or sections of the Act containing such provision.

Counsel for the complainants offered no explanation for the delay in asserting that Cuddy's conduct constituted a violation of the Act. We saw no good or sufficient reason why we should begin entertaining that allegation in these proceedings, having regard to the stage the proceedings had reached and the fact that they involved a claim for certification, and ruled that we would not do so.

50. After that ruling, argument continued on the issue whether the allegations of the complainants, if true, established a prima facie case for the granting of a remedy involving setting aside the Cuddy Boulevard agreement. There were two main aspects to the question: whether the Board has jurisdiction to grant such a remedy as against a party to the collective agreement who neither consented nor could be found to have violated the Act and, if the Board did have such jurisdiction, whether the facts pleaded would, if true, warrant granting such a remedy. After hearing the arguments of each counsel and before hearing reply argument on behalf of the complainants, we came to two conclusions. The first was that we might not be able to complete the formulation of a considered answer to the jurisdictional aspect of the question before the previously scheduled hearing dates in February. The second was that with respect to the other aspect of the question - whether such a jurisdiction might be exercised - we could not then confidently say that there was no outcome of a hearing into the complainants' allegations, and particularly the allegations of misrepresentation by Cuddy management, in which we would choose to exercise a jurisdiction to set aside the collective agreement. Having regard to the need for expedition, we thought it better in those circumstances to proceed to hear the evidence with respect to the complaint on those February hearing dates and apply the parties' arguments to our findings on that evidence, rather than ponder the issue on the basis of assumed facts and risk delaying a hearing in which the complainants and the trade union respondents to their complaint would have to participate in any event. Having adopted that course, it was unnecessary to hear the complainants' reply argument at that time. We advised the parties of these conclusions, and adjourned to February 9, 1988 to hear the parties' additional evidence with respect to the complaint.

51. In retrospect, we should note that neither the question we had posed nor the argument counsel offered in response focused on the question whether, even if it were proper to grant a remedy under section 89 setting aside a collective agreement, such a remedy should be granted with effect as of a date prior to the decision granting it and prior even to the date of filing of the complaint in which the remedy is sought. Nothing about the course these proceedings have taken should be taken as reflecting any considered view on that question.

52. On January 21, 1988, counsel for the complainants filed a complaint (Board File No. 2911-87-U) against Cuddy, repeating the allegations in the complaint before us and asserting that Cuddy's behaviour constituted a breach or breaches of the Act. In his covering letter of January 15, 1988 to the Registrar, counsel noted our ruling and asked that the matter be scheduled before a different panel.

53. In the meantime, in early January 1988 Cuddy had transferred its turkey deboning line and the workers on that line from the Trafalgar Road turkey processing plant to the Cuddy Boulevard plant. On February 8, 1988, counsel for more than 100 of those employees ("the transferees") wrote to the Board and to counsel for the parties to these proceedings, giving notice of their desire to intervene in these proceedings and of a complaint which they proposed to file and wished to have consolidated with this one. That complaint alleged that Local 175 (and UFCW) knew or ought to have known of the proposed transfer of the turkey deboning line before concluding either of the 1987 collective agreements, that at the June ratification meeting Don Dayman had led Trafalgar Road employees to believe that the terms of the agreement on which they were voting would govern their employment at Cuddy Boulevard when they were transferred and that it had been improper in the circumstances for Local 175 to conclude the Cuddy Boulevard agreement without consulting them. The main relief sought was the application to transferees at Cuddy Boulevard of the collective agreement provisions for which they had gone on strike in June 1987 - that is, the agreement which, according to Cuddy and Local 175, applied to them only while they remained at Trafalgar Road. Furthermore, the transferred employees opposed both the RWDSU certification application and any attempt to "force an 'open period"' at the Cuddy Boulevard plant.

54. At the opening of our hearing on February 9, 1988, counsel for the complainant transferees requested that their complaint be consolidated and heard together with these proceedings or, in the alternative, that they be given standing as interveners in these proceedings. He indicated they would be content that evidence adduced in hearings to date would apply to their complaint if their request was granted. Counsel for the present complainants supported consolidation of the transferees' complaint and added a request that their new complaint in Board File No. 2911-87-U also be heard together with the matters then before us. Cuddy and Local 175 had had little advance notice of the transferees' complaint and consolidation request and no notice of the consolidation request made by counsel for the present complainants. Their counsel opposed both requests.

55. For our purposes, the issue was not whether the other complaints would be heard at all but, rather, whether this panel would begin hearing them together with the proceedings then before us, in respect of which the hearing of relevant evidence had already begun. We again weighed the desirability of hearing all related matters together against the adverse impact consolidation would have on the expeditious disposition of the proceedings already before us. Having regard to the fact that these proceedings involved a certification application, to the short notice which the respondents to them had of the consolidation applications and of the transferees' complaint itself and to the problems (to which we have earlier referred) inherent in retrospectively applying to these new complaints the evidence we had already heard, we ruled that we would not grant either of the consolidation requests.

56. We did grant the transferees' request for standing as interveners in these proceedings. Insofar as that gave them standing with respect to a section 89 complaint in which their trade union bargaining agent was respondent, we did so in the exercise of our discretion without making any finding that they were entitled to such standing as a matter of right. After the day on which the transferees were granted standing as interveners, their counsel advised counsel for one of the other parties that they would not take any further active part in these proceedings. No one attended our hearings on their behalf thereafter, nor did anyone ask that the transferee interveners be relieved of the standing they had been granted.

IV

57. The allegations referred to in paragraph 20 and assumed true for the purposes of our decision of November 27, 1987 were not all proved true in the second phase of our hearings. Tom Collins did not testify, for example, so the only evidence we have about the conversations referred to in paragraphs 1, 4, 5 and 6 of RWDSU's statement of evidence is the evidence Mr. Root gave during the first phase of our hearings. While he then acknowledged having had some conversations with Mr. Collins in the time frame in question, Mr. Root denied telling Mr. Collins that Cuddy was negotiating a "recognition agreement" for the Cuddy Boulevard plant, and his version of those conversations differed in several other respects from what RWDSU alleged. While employee witnesses called during the second phase said they believed other employees had approached or looked into certain unions after the Cuddy Boulevard plant opened and before they learned of the collective agreement with Local 175, none of the witnesses had been directly involved; there was, therefore, no direct evidence that RWDSU or any other union was approached by any Cuddy employee in that time frame.

58. Evidence in the second phase did very clearly establish that, from the time of their pre-hiring interviews until they learned of the Cuddy Boulevard agreement, employees at the Cuddy Boulevard plant were told by members of management that that plant was not unionized and that employees there could choose whether to bring in a union, form their own union or continue without a union.

59. Ken Dodge was interviewed for his job by Mark Bossy, the Personnel Manager at the Cuddy Boulevard plant. Mr. Bossy told him that the plant was not a unionized plant but down the road it might be. David Findlay was interviewed by Mr. Root, who told him that the plant was non-union. Mr. Root acknowledged during his testimony in the first phase that employees hired for the Cuddy Boulevard plant may have been told that it was a non-union plant, and that there had been no directive or advice from management to disabuse them of that belief.

60. A few days before the Trafalgar Road employees went on strike, the general manager at the Cuddy Boulevard plant, Larry Moss, called a meeting or meetings of employees to discuss the possibility that the plant might be picketed in connection with that strike. He told employees that their plant was non-union, that they were not part of the Trafalgar Road plant and that they would not be involved in the strike. Some employees asked if they could get a union. Mr. Moss said they could get a union or have no union, it was up to them. The complainants and RWDSU allege that this meeting took place on June 2, 1987, after Cuddy and Local 175 say they orally agreed on all the terms of a collective agreement covering the Cuddy Boulevard plant. Taken together, evidence of the employee witnesses about the timing of the meeting was sufficiently inexact that this meeting may have taken place either shortly before or shortly after that agreement was reached. In any event, employee discussion about the possibility of a union continued after this meeting. In conversations about that possibility later in June, well after the oral agreement, supervisors John Lapin and Jack West were still telling Ken Dodge that the plant was non-union.

61. In early August 1987, there was a notice by the time clock at the Cuddy Boulevard plant of a union meeting on Sunday August 9th at a local restaurant. Before that day, Larry Moss called another meeting or meetings of Cuddy Boulevard employees to urge them to attend the union meeting. He told employees they would be able to vote on whether or not they wanted a contract which had been worked out with the union. A number of Cuddy Boulevard employees went to the union meeting. Mr. Dayman presided. He told them that the meeting was to discuss the contract which would cover them at Cuddy Boulevard, not to vote on whether or not they wanted the contract or the union. The employees were not pleased with a clause in the agreement which allowed employees transferred from Trafalgar Road to bring their seniority with them to Cuddy Boulevard. They got (probably from Mr. Dayman's briefcase) a draft of the agreement which had been made to cover the Trafalgar Road plants. They were not happy that the wage rates and other provisions of the agreement for Cuddy Boulevard were less favourable than those the union had negotiated for Trafalgar Road. They were not pleased that they had no choice about either the contract, which Mr. Dayman told them had already been ratified and signed, or the union, which Mr. Dayman said could not be decertified at that time. Some employees at the meeting demanded that Mr. Dayman give them written confirmation of some of the things he had said about their lack of choice. He refused. The meeting was not a happy one.

62. Mr. Dayman testified again in this second phase of our hearings. He elaborated on his earlier evidence concerning the course and results of negotiations for the Cuddy Boulevard contract. He had proposed a separate contract for that location, he says, because he understood employees there would be involved in killing birds and eviscerating the carcasses, functions which were not performed at Trafalgar Road. He seems not to have given much weight to the information he had from the outset that some Trafalgar Road operations would probably be transferred to Cuddy Boulevard at some point in the future. He says he did not consult any Cuddy Boulevard employees because before April 1987 there were none and after April 1987 he did not know any of the employees who were working there. Before he signed the Cuddy Boulevard agreement, Mr. Dayman did not ask Cuddy who those employees were, or how many of them there were or what their existing wages and other terms and conditions of employment were. He was not aware that for most workers the initial wage rates provided for in the agreement he negotiated were rates Cuddy had established for those positions before the employees in them began work in April.

63. Mr. Dayman did not consult with any Trafalgar Road employees about the Cuddy Boulevard agreement because he felt it did not concern them; this despite knowing that some of them might be transferred to Cuddy Boulevard, a matter which he addressed in bargaining by having the following article included in the agreement:

16.16 Should a bargaining unit employee be transferred from Cuddy Food Products Ltd., 1226 Trafalgar Street, London, Ontario, such employee shall retain the following for the life of this Agreement:

1. Seniority

2. Vacation Entitlement

3. Wages - on a Red-Circled basis.

We note that the formal collective agreement incorporating the terms of the memorandum of June 19, 1987 has attached to it a subsequent letter of understanding about transfers to the Cuddy Boulevard plant. The parties' inability to agree on the wording of this letter is said to be one of the reasons why that formal agreement was not signed until December 11, 1987.

64. Two of the transferees were called as witnesses. They testified about what Mr. Dayman had said at the strike vote and ratification vote meetings in May and June, 1987. in support of the proposition that he had at one or both of those meetings told Trafalgar Road employees that the agreement they ratified would apply to them if they were transferred to Cuddy Boulevard. Mr. Dayman testified that the issue only came up at the ratification meeting, that he had said they would take their wages (red circled), seniority and vacation entitlement with them if transferred and that he had refused otherwise to discuss Cuddy Boulevard with the Trafalgar Road employees. We received the evidence because it was arguably relevant to issues before us. The evidence we heard about what was said at the strike and ratification meetings was and is also relevant to the transferees' complaint, which is not before us. It is not necessary for us to decide whether Mr. Dayman's remarks at those meetings (whatever they were) would have led employees then employed at Trafalgar Road to believe that the agreement they were called upon to ratify would apply to them if they were transferred to 10 Cuddy Boulevard. No possible answer to that question would affect the conclusions at which we have arrived.

65. The Cuddy Boulevard and 1987 Trafalgar Road agreements differ in a number of respects. The Cuddy Boulevard agreement has a term of two years, expiring May 31. 1989. The Trafalgar Road agreement has a term of three years ending February 7, 1990. This longer term is part of the price the union paid to achieve its demand for pension plan provisions which require employer contributions in the second and third year of the agreement. The Cuddy Boulevard agreement has no pension provisions. Insofar as they are different from those of the Trafalgar Road agreement, the non-monetary provisions of the Cuddy Boulevard agreement are generally more favourable to Cuddy, although not startlingly so. Apart from the lack of pension provisions, the major different in the monetary provisions is in the wage rates.

66. There was some debate about the comparability of the job classifications at the two plants. While there is no job at Trafalgar Road comparable in function to the live receive, live hang, kill and eviscerate jobs at Cuddy Boulevard, only a relatively small portion (10 to 15 per cent) of workers at Trafalgar Road perform those functions. The workers in those jobs are paid at an hourly rate 25'z higher than the base rate. A substantial portion of the workers at each plant are paid at the base or general rate established in the applicable agreement. At the time the agreements were made, a number of workers at Trafalgar Road were engaged in deboning turkeys and a number at Cuddy Boulevard were engaged in deboning chickens. While there are some differences in these two functions, no one seriously suggested that they were the major reason for the differences in wage rates negotiated for these workers.

67. For all but one classification (millwright), wage rates are lower under the Cuddy Boulevard agreement than for the comparable classifications at Trafalgar Road. Indeed, the rates being paid under the 1985 agreement at the time it expired in February 1987 were higher than the rates which became effective June 1, 1987 under the Cuddy Boulevard agreement. The general and base hourly rates, respectively, under the Trafalgar Road and Cuddy Boulevard agreements are as follows:

Trafalgar Road

Feb. 87 Aug. 87 Feb. 88 Aug. 88 Feb. 89 $8.90 9.10 9.30 9.55 9.75

Cuddy Boulevard

June 87 Dec. 87 June 88 Dec. 88 $8.35 8.45 8.65 9.25

The general rate under the 1985 agreement had reached $8.65 per hour on August 8, 1986.

68. As regards the differences between the Cuddy Boulevard agreement and the agreement ratified by Trafalgar Road workers in June 1987, Mr. Dayman observed that the Cuddy Boulevard plant was a new plant with new, relatively untrained employees. He felt he could do better for the workers after they had been trained and become established, and in that regard had sought only a two-year agreement. He was aware of the wage rates at Trafalgar Road but was aware also of the lower wages and inferior working conditions that the RWDSU had negotiated for workers at a kill plant in Dublin, Ontario owned by East Huron Poultry, a corporate relative of Cuddy. He was seeking to get rates and benefits closer to those at Trafalgar Road than those at East Huron Poultry. There was no suggestion that he had failed in that respect.

V

69. The complainants say that Local 175 breached its duty to them under section 68 of the Act by agreeing to place employees at 10 Cuddy Boulevard in a separate bargaining unit, by failing to pursue the grievance of April 22, 1987, and by entering into a collective agreement for that bargaining unit which is "inferior" to the collective agreement it negotiated to cover other employees of Cuddy in the City of London, all without consulting employees at 10 Cuddy Boulevard. The complainants also allege that Local 175 breached subsection 72(5) of the Act by failing to invite employees at 10 Cuddy Boulevard to the meetings at which strike and ratification votes were held in May and June, 1987, respectively. The complainants argue that until the division of Local 175's city-wide bargaining unit into two units was effective for the purposes of the Act, the "bargaining unit" referred to in subsection 72(5) included employees at both Trafalgar Road and Cuddy Boulevard. They argue that the division could not be effective until it was reflected in a written agreement between Local 175 and Cuddy, and no written agreement expressly reflected the division until the Cuddy Boulevard agreement was signed.

70. The primary remedy sought by the complainants is the removal of the Cuddy Boulevard agreement as an obstacle to certification of RWDSU. Several remedies with this ultimate result are proposed. The Board is asked to

(a) set aside the collective agreement outright; or

(b) set aside the collective agreement, subject to its being made effective again if ratified at a vote of Cuddy Boulevard employees; or

(c) direct the conduct of a ratification vote, and set aside the collective agreement if it is not ratified; or

(d) shorten the term of the agreement, rather than set it aside altogether, by directing both parties to apply for early termination under subsection 52(3) of the Act.

In the alternative, if the Board is not prepared to set aside the agreement, it is asked to

(e) order a vote to determine whether employees at 10 Cuddy Boulevard wish to be represented by Local 175 or the RWDSU and, if the RWDSU wins the vote, substitute the RWDSU for Local 175 as bargaining agent under and for the purposes of the Cuddy Boulevard agreement which, with the substitution of the trade union party, would continue in effect for the balance of its term; or

(f) let employees at 10 Cuddy Boulevard choose whether they wish to have a bargaining unit and collective agreement separate from the ones governing Trafalgar Road employees and if the answer is that they do not so wish, require Local 175 to compensate the complainants for the difference between what they receive under the Cuddy Boulevard agreement and what they would have received under the agreement negotiated for employees at Trafalgar Road.

71. We will deal first with the claim that Local 175 has breached subsection 72(5) of the Act. That subsection provides that:

All employees in a bargaining unit, whether or not such employees are members of the trade union or of any constituent union of a council of trade unions, shall be entitled to participate in a strike vote or a vote to ratify a proposed collective agreement.

This provision does not require any trade union either to conduct a strike vote before calling or authorizing a strike or to conduct a ratification vote before ratifying a collective agreement. The subsection does not regulate the conduct of a vote which is not a strike or ratification vote, even if the trade union intends to take the results of the vote into account in making decisions about a strike or the ratification of a collective agreement: The T. Eaton Company Limited, [1985] OLRB Rep. Aug. 1309. And if a trade union does choose to conduct a strike or ratification vote, subsection 72(5) does not require that the union act in accordance with the result of the vote: K-Man Distribution Centre, [1981] OLRB Rep. Oct. 1421.

72. Subsection 72(5) only defines what the minimum voting constituency must be when a trade union chooses to conduct a strike or ratification vote. It merely says that "all employees in a bargaining unit" are entitled to participate in the vote, whether or not they are members of the union. It does not even expressly limit the voting constituency to bargaining unit employees, as does subsection 149a(1) of the Act. (See also Jack P. Fogal, [1976] OLRB Rep. Aug. 428, a decision of which the Legislature must be taken to have been aware when in 1980 it amended what is now subsection 72(5) to give non-member employees the right to participate.)

73. Subsection 72(5) does not expressly identify the "bargaining unit" in which these eligible non-member voters are to be found. In many instances, a single trade union is the exclusive bargaining agent for more than one bargaining unit of employees of various employers; most organized bargaining units in Ontario are represented by a trade union which also represents other bargaining units of employees of other employers. The Legislature obviously did not intend subsection 72(5) to give non-member employees in every bargaining unit represented by a trade union the right to vote in any strike or representation vote that union might choose to conduct. If it were not apparent simply from reading subsection 72(5) in the context of the other provisions of the Act, consideration also of the history of the subsection as reviewed in RCA Limited, [1981] OLRB Rep. Aug. 1159, makes it clear that the non-member employees about whom the Legislature was concerned were those who might be directly affected by the action with which the vote is concerned. In the case of a strike vote, those would be the employees who would be expected to go out on strike if one were called - those, in other words, who would be treated as "scabs" by the union and its members if they subsequently refused to participate in the proposed strike. In the case of a ratification vote, the affected employees would be the employees who would be bound by the terms of the agreement under consideration if it were entered into by the union and their employer.

74. Long before it held the strike and ratification votes in question here, Local 175 had decided to seek a division of its bargaining unit into two bargaining units, one consisting of employees at 10 Cuddy Boulevard (which will be referred to as "the Cuddy Boulevard unit") and one consisting of all other employees in the City of London (which will be referred to somewhat inaccurately as "the Trafalgar Road unit", since the only employees in it at any relevant time were employees at the Trafalgar Road plants). Cuddy was receptive to this idea and, for the most part, their negotiations proceeded in a manner consistent with the expectation that such a division would occur. Initially, however, the union reserved the right to insist on an undivided unit. This is clear from its letter and grievance of March 18 and April 22, 1987, respectively. There was no mutual commitment to a divided unit until at least June 1, 1987. The agreement reached on that date was an oral one; it might also be said to have been impliedly conditional on the parties' also concluding a Trafalgar Road agreement satisfactory to Local 175. That condition was not fulfilled until the June 20th ratification vote had been conducted. The first written agreement to expressly reflect (and therefore, perhaps, effect) a division of the unit defined in the 1985 agreement was the Cuddy Boulevard collective agreement signed on August 1, 1987.

75. The agreement to split the unit defined in the 1985 agreement was one which affected all employees in that unit. Had that agreement been the subject of a ratification vote, Cuddy Boulevard employees would have been employees affected by the vote whose participation in it was clearly intended by subsection 72(5). A failure to include them would have been a clear violation of both the letter and spirit of that subsection. The fact is, however, that there was no such vote. Local 175 did not consult the views of any Cuddy employees on the matter of dividing the unit, either by way of ratification vote or by any other means.

76. The strike vote was conducted in late May. Participation in it was limited to the Trafalgar Road unit, which did not then have a separate existence on any view of the facts. The vote was about whether Trafalgar Road employees would be called out on strike. The eventual strike only began after the oral agreement of June 1, 1987. There was no question, either at the time of the vote or at the time of the strike, of Cuddy Boulevard employees being either asked to join in the strike or criticized for failing to do so. At the time of the strike vote, Cuddy Boulevard employees were still in the same bargaining unit as the voters, but they were not employees affected by the vote in the sense we have described in paragraph 73 above.

77. Participation in the ratification vote of June 20th was also limited to employees in the Trafalgar Road unit. Again, that unit had not acquired a separate identity at that time, unless the oral agreement of June 1st can be said to have had that effect. Collective agreements define bargaining units. The statutory definition of "collective agreement" requires that such agreements be in writing; by necessary implication, amendments to such agreements must also be in writing in order to be effective (see University of British Columbia, [1976] C.L.R.B.R. 13 (B.C.L.R.B.) at page 17). It is unwise to be too categorical about oral agreements having no effect in any circumstances; for the sake of analysis, however, we will assume that the oral agreement of June 1st did not effectively divide the bargaining unit.

78. On its face, the settlement which was the subject of the ratification vote applied to the entire unit covered by the 1985 agreement. Nevertheless, Cuddy and Local 175 intended it only to apply to what we have described as the Trafalgar Road unit. In the circumstances, we do not think Local 175 could have compelled Cuddy to sign an agreement in the terms of that settlement without first signing the Cuddy Boulevard agreement or otherwise excluding the Cuddy Boulevard unit from its application. Whether or not the participants in the ratification vote might reasonably have thought otherwise, that vote was about an agreement which would only apply to the Trafalgar Road unit. The voters were not asked to ratify a division of the union's bargaining unit, and had no reason to suppose they were being asked to do so. Even if Cuddy Boulevard employees were still in the same bargaining unit as those who participated in the ratification vote when that vote occurred, they were not employees affected by the vote in the sense we have described in paragraph 73 above.

79. The complainants' argument is that the phrase "bargaining unit" in subsection 75(2) must be understood to refer to the existing unit - the bargaining unit last defined in writing by the bargaining parties - even in those rare circumstances in which, as here, the bargaining parties anticipate dividing the bargaining unit and the strike or contract which is the subject of the vote would only involve or bind one of the two units into which the existing unit is to be divided. Ordinarily, the employees in the existing unit are the employees affected by the vote in the sense we described in paragraph 73 above. It seems unlikely that the Legislature specifically turned its mind to circumstances of the sort which arose here when it decided to describe the employees to be protected by subsection 75(2) as "employees in a bargaining unit." It also seems unlikely that the Legislature intended to extend a right to participate in strike and ratification votes to employees who would not be affected by them in the sense described above. If the Legislature's choice of language nevertheless compels the conclusion that Local 175's actions here breached that subsection, the breach or breaches were technical ones which did not violate the spirit of the subsection and would not, in our view, warrant a remedial response. As we would not provide a remedy in any event, we need not decide with respect to either vote whether there was a technical breach or no breach at all.

80. We turn, then, to the complainants' arguments that Local 175 has breached section 68 of the Act. That section provides that

a trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

Although complaints of breach of this section arise most often out of decisions or action taken (or not taken) in the administration of a collective agreement, the duty imposed by this section also applies to union behaviour and decision-making in the negotiation of collective agreements.

81. Section 68 does not prohibit a union's withdrawing or abandoning a grievance without the consent of the employee or employees who would benefit if the grievance were to succeed. Such action will violate the section only if the decision to so act is arbitrary, discriminatory or in bad faith. Failure to consult a grievor about the withdrawal of his or her grievance will be a breach of section 68 if the grievor, as grievors often do, has some information relevant to that decision, information which it would be arbitrary for the union to ignore: see, for example, Jeanne St. Pierre, [1986] OLRB Rep. June 883; and Jean Liebman, ~1986] OLRB Rep. June 753. Mr. Dayman says this grievance was filed in order to get an appropriate collective agreement for the employees who would have benefited by success in the grievance and was abandoned because an agreement was obtained. (We note that successful pursuit of the grievance would have given the employees the benefit of the 1985 agreement only for the period from their date of hire to the end of the statutory freeze some weeks later in late May.) The settlement of a grievance is not contrary to section 68 merely because it occurs in the course of settling a collective agreement: Stelco Inc., [1983] OLRB Rep. Dec. 2102. Here, both the initiation and the abandonment of the April 22nd grievance were part of the process of collective bargaining, and the propriety of Local 175's treatment of the April 22nd grievance is bound up with the broader question of the propriety of Local 175's actions in bargaining the Cuddy Boulevard agreement.

82. A union may negotiate different terms and conditions of employment for different groups of employees within a bargaining unit without violating section 68, so long as there is reasonable and objective justification for the differences and the union does not act in a manner which is arbitrary, discriminatory or in bad faith in the process by which it arrives at that result: Corporation of the City of Toronto, (1982] OLRB Rep. Jan. 124. As the Board observed in The Corporation of the Cily of Thunder Bay, [1983] OLRB Rep. May 781 at paragraph 68:

83. ... The cases are replete with passages recognizing that in the collective bargaining system trade offs must be made between the competing interests of different groups of employees. The tension as to which employees will get which slice of the wage and benefits pie negotiated with the employer is intrinsic to any union. Perhaps the best judicial recognition of that reality was made in the often quoted statement of the Supreme Court of the United States in Ford Motor Co. v. Huffinan, [t953J 345 U.S. 330 at 338:

The bargaining representative, whoever it may be, is responsible to, and owes complete loyalty to, the interests of all whom it represents ... Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.

83. The circumstances of employees at Cuddy Boulevard were different in several respects from those of employees at Trafalgar Road. The mere fact that there are differences between the collective agreements the union made with respect to those two groups would not alone warrant a finding that Local 175 violated section 68, nor would the mere fact that Local 175 agreed to divide its bargaining unit in two. The critical question is whether in the process Local 175 followed in arriving at those results it acted in a manner which was arbitrary, discriminatory or in bad faith. The complainants' main criticism of that process is that Local 175 totally failed to consult Cuddy Boulevard employees before concluding an agreement affecting them.

84. We agree with the observation of the Board in Manor Cleaners Ltd., [1983] OLRB Rep. June 929, at paragraph 9 that "it is difficult to conceive how the duty of fair representation can be discharged when the bargaining agent in an industrial setting fails entirely to meet with the employees prior to or at any time during the bargaining process." In Diamond "Z" Association, [1975] OLRB Rep. Oct. 791, the Board said that a breach of the duty under section 68 "most often comprehends conduct that is so wanton that the most modest of employee expectations to [sic] the benefits of collective bargaining have been betrayed by his trade union." That employees will be consulted by their bargaining agent before it concludes a collective agreement by which they will be bound is surely a most modest and reasonable employee expectation. In paragraph 23 of its decision in Consolidated Fastfrate Limited, [19841 OLRB Rep. May 691, the Board stated categorically that, in its application to the negotiation process, "a duty under section 68 must at least include a duty to consult at some point with those represented." If there can be circumstances in which that is not so, such circumstances are not present here. By failing to consult Cuddy Boulevard employees, Local 175 violated its duty to them under section 68 of the Act.

85. The fact that there were no employees at Cuddy Boulevard when negotiations began does not excuse the failure to consult them once there were such employees. Mr. Dayman 's main excuse for not consulting Cuddy Boulevard employees thereafter was that he did not know any of them. Local 175's obligations under section 68 were owed to all employees in the unit for which it claimed bargaining rights, not just those whom Mr. Dayman knew. He knew in April 1987 that there were employees at Cuddy Boulevard. He could have asked Cuddy who they were. He clearly would have been entitled to a full answer, for reasons which appear in the Board's decision in DeVilbiss (Canada) Limited, [1976] OLRB Rep. Mar. 49, and decisions which have followed it, including Radio Shack, [1979] OLRB Rep. Dec. 1220 (jud. rev, denied, in Re Tandy Electronics Ltd., and United Steelworkers of America et al. (1980), 1980 CanLII 1738 (ON HCJ), 30 O.R. (2d) 29, 80 CLLC 14,017 (Ont. Div. Ct.), leave to appeal to Ontario Court of Appeal refused March 10, 1980); Globe Spring & Cushion Co. Ltd., [1982] OLRB Rep. Sept. 1303; Northwest Merchants Ltd., [1983] OLRB Rep. July 1138, 83 CLLC 16,055; The Windsor Star, [1983] OLRB Rep. Dec. 2147, The Ontario Cancer Treatment and Research Foundation (Thunder Bay Clinic),[1985] OLRB Rep. May 705, Forintek Canada Corp., [1986] OLRB Rep. Apr. 453 and Co-Fo Concrete Forming Construction Limited, [1987] OLRB Rep. Oct. 1213, 17 CLRBR (NS) 298.

86. The right of a bargaining agent to such information is well established and known, and Local 175's failure to exercise that right in this case highlights and compounds the union's breach of section 68. In DeVilbiss (Canada) Limited, supra, the Board observed at paragraph 16 that

It is patently silly to have a trade union "in the dark" with respect to the fairness of an employer's offer because it has insufficient information to appreciate fully the offer's significance to those in the bargaining unit.

It is patently silly for a trade union, particularly a trade union which does not know any of the employees in the bargaining unit for which it is negotiating, to voluntarily remain in the dark with respect to employees' current rates of pay and other terms and conditions of employment. It is so silly as to constitute arbitrary conduct.

87. Section 68 does not require that trade unions consult their bargaining unit employees at every step in the bargaining process nor, generally speaking, does it dictate that their consultations shall occur at any particular stage or in any particular form: The Great Atlantic and Pacific Company, Limited, [1983] OLRB Rep. Oct. 1654. In addition to requiring that there be some form of consultation at some stage, however, section 68 also requires that the trade union's decisions about the timing and form of its consultation not be arbitrary, discriminatory or made in bad faith. Local 175 held a ratification vote among the Trafalgar Road employees to ascertain their wishes with respect to the terms of the memorandum of June 19, 1987. It did not conduct a ratification vote among Cuddy Boulevard employees with respect to the terms of the oral agreement of June 1, 1987. Not only has it not adequately explained its total failure to consult the Cuddy Boulevard employees, it has not adequately explained why its consultations with this group should not have taken the same form as its consultations with the Trafalgar Road employees. In the circumstances of this case, Local 175's having conducted a ratification vote in one group without doing so in the other amounted to discrimination contrary to section 68.

VI

88. What remedy should the complainants be granted with respect to Local 175's breach of

its statutory duty? Subsection 89(4) of the Act sets out the Board's remedial authority:

89. -(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, notwithstanding the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of; or

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate in lieu of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally.

We agree with counsel for the complainants that this subsection gives the Board a very broad remedial jurisdiction. In Radio Shack, supra, the Board made these observations about remedies:

93. It is trite to say that all rights acquire substance only insofar as they are backed by effective remedies. Labour law presents no exception to this proposition. An administrative tribunal with a substantial volume of litigation before it faces a great temptation to develop "boiler plate" remedies which are easy to apply and administer in all cases. This temptation must be resisted if effective remedies are to buttress important statutory rights. An important strength of administrative tribunals is their sensitivity to the real forces at play beneath the legal issues brought before them and there is no greater challenge to the application of this expertise than in the area of developing remedies. To be effective, remedies should be equitable, they should take account of the economics and psychology permeating the situation at issue; and they should attempt to take into account the reasons for the statutory violation. Remedies should also be sensitive to the interests of innocent bystanders. This means then that the Board should try and tailor remedies to each particular case. It is equally true, however, that the Ontario Labour Relations Board cannot police the entire labour relations arena. As important as it is for this Board to safeguard the substantive rights it administers, ultimately, compliance with the Act depends on the vast majority of unions and employers according at least minimal respect to the legislation, the Board and the Board's directives. With its limited resources and the time that must be taken to adjudicate fairly issues of controversy, the Board must rely on the co-operation of employers and trade unions in the day to day administration of the Act. For this reason, the Board cannot get too far ahead of the expectations of the parties it regulates. It must be concerned that its decisions are perceived, in the main, as reasonable and fair to attract as much self-compliance as possible. It has therefore been said that the ideal Board order must be both an instrument of education and of regulation. See generally St. Antoine, A Touchstone for Labor Board Remedies (1968), 14 Wayne L. Rev 1039; Ross, Analysis of Administrative Process Under Taft-Hartley, [1966] Lab. Rd. Yearbook 299. Giving effect to these general considerations, three basic principles that underpin section 79 have emerged.

The decision went on to deal with the proposition, advanced here by counsel for the complainant, that a remedy for a breach of the Act should "make whole" the injured party. While generally supporting that view, the decision did conclude that there are limits on the Board's ability to fashion such remedies (the limit in that case being that the Board was without jurisdiction under subsection 89(4) to impose a collective agreement at the request of a trade union on an employer who had violated the Act by failing to bargain in good faith with the union).

89. Insofar as the remedies sought by the complainants would result in setting aside the collective agreement, either with retrospective or just with prospective effect, the respondents argued that the Board is without jurisdiction to grant such a remedy in this case because that would adversely affect Cuddy's rights. They submitted that the Board does not have the jurisdiction under subsection 89(4) to adversely affect the rights of any entity other than one found to have violated a provision of the Act. As this complaint had proceeded on the basis that Cuddy's behaviour, however inappropriate, was not being treated as though it violated the Act, they argued that a remedy for any breach of the Act by Local 175 would be beyond the Board's jurisdiction if it affected the legal rights of Cuddy.

90. It should be noted that the authority granted by subsection 89(4) is to "determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing." The use of the definite article "the" on the second occurrence in the subsection of the construction "employer, employers' organization, trade union, council of trade unions, person or employee" might suggest that the only entity whom the Board may order to do or refrain from doing something is the entity whom the Board has found to have violated the Act. It might be said, then, that the Board's remedial authority extends only to those remedies which may be achieved through action (or inaction) which the wrongdoer is capable of taking. A collective agreement cannot be brought to an end or made to cease to have effect, either retroactively or prospectively, by the action of only one of the parties to it (unless the action in question involves ceasing to exist without leaving a successor to its rights and obligations under section 62 or 63). Indeed, the actions of both parties to it cannot take a collective agreement out of existence even prospectively unless those actions include their applying for and obtaining the consent of the Board under section 52(3) of the Act.

91. In support of the proposition that the Board does have jurisdiction to effectively set aside a collective agreement, counsel for the complainants relied on the Board's decisions in Traugon' Construction Limited, [1981] OLRB Rep. Nov. 1680 and [1982] OLRB Rep. June 958, and the Divisional Court's decision dismissing an application for judicial review of those decisions: Re International Union of Operating Engineers, Local 793 and Traugott Construction Ltd. (1984), 1984 CanLII 2011 (ON HCJ), 45 O.R. (2d) 129, 84 CLLC ¶14,025. The collective agreement there in question had been signed by the employer party to it as a result of unlawful picketing of its construction projects and threats that such picketing would continue if it did not grant voluntary recognition to the Toronto Central Ontario Building and Construction Trades Council (which had made the threats and instigated the picketing) and its affiliated trade unions and agree to be bound by the terms of certain existing collective agreements. When one of those affiliated trade unions had then sought to enforce the terms of one such collective agreement against the employer in a referral under section 124 of the Act, the Board refused to give effect to it because it was a collective agreement which had arisen "as a consequence of unlawful conduct." The Divisional Court's decision suggests that the Board could have used its remedial powers under subsection 89(4) to achieve this result.

92. The circumstances to which the Board responded in Traugott are distinguishable in at least one critical respect from those here. The request that a collective agreement be set aside by reason of the unlawful behaviour of one of the parties to it was made in Traugott by the other party to the agreement; here the other party to the agreement objects to its being set aside. The Traugott decisions do not assist us with the jurisdictional issue here, which only arises because of that distinction.

93. Counsel for the complainants also relied on the fact that when the Board has found a trade union to have breached section 68 in the handling of a grievance under a collective agreement, it has directed by way of remedy that the parties to the collective agreement arbitrate the grievance, thereby directly affecting rights of the employer (who may be ordered not to raise objections to the timeliness of the grievance or referral to arbitration) as well as those of the wrongdoer union. The example he offered was the decision in Windsor Western Hospital, [1984] OLRB Rep. Nov. 1643. Apart from the fact that the Divisional Court quashed that decision (holding that the Board was without jurisdiction to direct that a grievance proceed to arbitration when it had already been the subject of arbitration: Re Windsor Western Hospital Centre Inc. and Mordowanec et al. (1986), 1986 CanLII 2635 (ON HCJ), 56 O.R. (2d) 297), that example is not particularly helpful in dealing with the argument that a remedy may only affect the wrongdoer, because in that case the Board found that both the union and the employer had violated the Act. Leonard Murphy, [1977] OLRB Rep. Mar. 146, 77 CLLC ¶16,099, is a better example. There, the Board made these observations about what is now subsection 89(4):

94. ... Without limiting the scope of possible orders the Act specifically endorses orders to cease doing the act[s] complained of, to rectify the act[s] complained of and to reinstate and/or compensate. That the section states that such orders may be made "notwithstanding the provisions of any collective agreement" implies that an order may override the terms of the collective agreement and thereby affect parties other than the specific offender. The breadth and flexibility of the remedial powers given the Board under section 79 [now 89] enable the Board to respond directly to a specific violation of the Act and to as nearly as possible put the parties into the position they would have been in if the violation of the Act had not occurred [sic].

The Board went on to make a direction that the parties arbitrate the grievance, noting that this overrode certain provisions of the collective agreement which might otherwise have made the grievance inarbitrable. Similar orders have been made in other subsequent decisions: Consumers Glass Company Limited, [1979] OLRB Rep. Sept. 861, Corporation of the Town of Hastings, [1979] OLRB Rep. Nov. 1072, Bedard Girard Ontario, [1981] OLRB Rep. Oct. 1338, North York General Hospital, [1982] OLRB Rep. Aug. 1190, Phillip Wayne Bradley, [1983] OLRB Rep. Mar. 323, Swing Stage Ltd., [1983] OLRB Rep. Nov. 1920, Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, Central Stampings Limited, [1984] OLRB Rep. Feb. 215, J. M. Schneider Inc.,[1984] OLRB Rep. Mar. 467 and The Corporation of the Town of Oakville, [1984] OLRB Rep. May 731.

94. The Board's jurisdiction to make orders of that kind is not in question here. It seems to us that there is a substantial difference between a power to override, on a one-time basis, a provision or two of a collective agreement in their application to a particular grievance and a power to bring an entire collective agreement to an end for all purposes. To suggest that the latter power has the same basis in the language of subsection 89(4) as the former puts considerable strain on the words "notwithstanding the provisions of any collective agreement" in subsection 89(4).

95. If the Board has the power to set aside a collective agreement by way of remedy for the unfair labour practice of only one party to it over the objection of the other party, it is a power which should be used with extreme caution and only in compelling circumstances. For one thing, the retroactive elimination of a collective agreement which has been in force for any period of time would create a number of complex problems, not the least of which is whether the employees covered by it would then be obliged to return to the employer all wage increases and other benefits received under the agreement: see Cara Operations Limited, [1986] OLRB Rep. Aug. 1054 at paragraph 16. Beyond the difficulty of implementing such a remedy in any given case, there is the adverse effect that the mere availability of the remedy would have on the collective bargaining process.

96. The Act requires that the parties to a collective bargaining relationship bargain in good faith and make every reasonable effort to make a collective agreement. It holds out the promise that an agreement achieved by those efforts will be binding on the employer, the union and the employees for its full term (or the first three years of its term, at least: see subsections 5(5) and 56(1) and subsections 57(2)(b) and 57(6)). For its part, the employer is obliged to recognize the trade union's authority to bargain for all employees in the unit in question. The Board's jurisprudence time and again has told employers that so long as the union continues to have that authority, the employer must not question or interfere in or attempt to dictate the way the union consults with or represents those employees. An employer violates the Act, for example, if it insists on employee ratification as a precondition to its executing a collective agreement which the union is prepared to execute: Wilson Automotive (Belleville) Ltd., [1980] OLRB Rep. Sept. 1337. That would be an unfair restriction on an employer if it were liable to lose the benefit of any bargain it might strike because of some inadequacy in the way the trade union dealt with bargaining unit employees. The collective bargaining process as it is presently understood would be undermined by the introduction of any notion that an employer who has in no way violated the Act could nevertheless lose all of the fruits of its bargaining because the union whose authority it had been obliged to unquestioningly recognize was later found to have inadequately represented the interests of the employees bound by the agreement.

97. Counsel for the complainants argues that if it would be inappropriate, generally speaking, to exercise against an innocent employer a jurisdiction to set aside a collective agreement, it nevertheless would be appropriate to do so here because this employer is "complicit" by reason of its misrepresentations to Cuddy Boulevard employees. The Concise Oxford Dictionary defines "complicity" as "partnership in an evil action." Cuddy certainly acted deceitfully when it withheld from its Cuddy Boulevard employees the fact that Local 175 claimed the right to represent them in collective bargaining. There is no evidence, however, that Cuddy did that at Local 175's request or as part of some agreement or conspiracy with Local 175. There is no evidence that Cuddy caused or encouraged Local 175's failure to communicate with Cuddy Boulevard employees before binding them to the terms of a collective agreement. While some of those employees might have contacted Local 175 if Cuddy had told them the truth, Cuddy's misrepresentations to the employees did not prevent Local 175 from communicating with them. While Cuddy behaved inappropriately, it was not "complicit" in Local 175's breach of section 68.

98. If the Board does have jurisdiction to set aside a collective agreement over the objection of a party to it who has not been found in breach of any provision of the Act, it is not a jurisdiction which should be exercised in the circumstances of this case. That disposes of the first four of the remedial alternatives listed in paragraph 70 above.

99. As for the fifth of the complainants' proposed remedies, there are two reasons why we should not remedy Local 175's breach of section 68 by substituting RWDSU for Local 175 as the trade union party to the collective agreement upon a majority vote of Cuddy Boulevard employees: that would be beyond our remedial authority and, even if it were not, it is not an appropriate remedy for this breach.

100. This proposed remedy would involve the Board's conferring on one trade union bargaining rights presently held by another. The Act carefully describes and circumscribes the circumstances in which the Board has the power to confer bargaining rights through certification (sections 7, 8, 9 and 144) or successorship declaration (section 62). None of those powers is exercisable in these circumstances. As we interpret the Act, those express powers to confer bargaining rights are the Board's only such powers. We also note in this regard that while labour legislation in other Canadian jurisdictions expressly contemplates a raiding union's stepping into the shoes of an incumbent under the latter's collective agreement in certain circumstances, that notion is quite foreign to our Act (see section 56(1)) except in the successorship context. We conclude that, like the power to impose collective agreement terms not agreed to by the parties, the power to confer bargaining rights and the power to substitute one trade union for another in a collective agreement are not included in the Board's remedial powers under subsection 89(4).

101. Even if it were within our jurisdiction to grant it, this remedy would not be an appropriate remedy for Local 175's breach. It was argued that this remedy was a way to restore the employees' opportunity to select their own bargaining agent if that could not be achieved by setting aside the Cuddy Boulevard agreement. The premise of the argument is that Local 175's breach of section 68 resulted in the loss of that opportunity. That premise is incorrect.

102. In our oral ruling of November 27, 1987, we said that Local 175's bargaining rights with respect to Cuddy Boulevard employees had been vulnerable to termination or displacement until the Cuddy Boulevard agreement was signed. That finding was not essential to the conclusion expressed in that ruling and, as counsel for Local 175 later pointed out, it was incorrect. The appointment of a conciliation officer on March 11, 1987, closed the "open period". For 12 months thereafter no certification or termination application could be made with respect to any employees in the unit covered by the 1985 agreement, including employees at Cuddy Boulevard: see subsection 61(2) of the Act. That bar was in place before there were any employees at Cuddy Boulevard. Local 175's breach occurred after that. That breach was its failure to consult with Cuddy Boulevard employees at some time before concluding an agreement covering them. We cannot say that if Local 175 had consulted those employees it could not have concluded a collective agreement covering Cuddy Boulevard employees before March 11, 1988 without breaching section 68 in some other way. Accordingly, we cannot say that the complainants lost any opportunity to select a bargaining agent as a result of Local 175's breach of section 68. A remedy designed to create such an opportunity would not be an appropriate remedy for Local 175's breach.

103. What the complainants lost was the opportunity to be consulted, to speak to Local 175 about the subject matter of a collective agreement before one was agreed to by Local 175 on their behalf. Can or should that loss be compensated in money? Counsel for Local 175 says that any assessment of damages would be highly speculative. He argues that we do not know that the Cuddy Boulevard employees would not have ratified the terms of the agreement. He submits they might have, even though the agreement gave few of them any immediate improvement in the terms and conditions of employment, because they would not have gone to work at Cuddy Boulevard in April 1987 if they were not satisfied with the wages and working conditions which existed both then and in June. He submits that we do not know whether the Cuddy Boulevard employees would have been prepared to go on strike to achieve something more. He cites Clifford Renaud, [1976] OLRB Rep. Jan. 967, in which the parties had agreed that if the Board found a violation of section 68 (then section 60), the question of monetary compensation should be dealt with at a later date. While the Board did find a violation, it declined to enter into an assessment of damages because it "would ... be of such a speculative and nebulous nature such that further protracted hearings in this regard could not be justified."

104. The Board dealt in Radio Shack, supra, with the proposition that the Board should avoid awarding damages for a loss of opportunity because the calculation of them would be too speculative:

105. It can, of course, be argued that damages for the loss of such an opportunity are too speculative to estimate and if arbitrarily set would be punitive in nature - a result that would appear to contravene the first tenet discussed. The argument, however, is inconsistent with the long accepted principle that one whose wrongful act precludes the exact determination of damage should not be able to evade his duty to compensate for that damage because of an uncertainty caused by his own wrongdoing. See Mayne and McGreger on Damages 12th ed., 1961, para. 174. In private litigation before our courts, a party is not burdened with an unattainable standard of accuracy in the assessment of damages. Business losses in commercial law suits and the compensation awarded in personal injury cases to persons who may never have been employed are important examples. See for example: Withers v. General Theatre Corporation, [1933] 2 K.B. 536; Roach v. Yates, [19381 1 KB. 256 (C.A.). Even more directly in point are those cases that explicitly grapple with the wrongful loss of an economic opportunity.

After reviewing several such cases, the Board concluded:

111. If the courts have not shied away from attempting to provide effective monetary relief for the violation of private rights, should the Ontario Labour Relations Board be any less sensitive when confronted with the intentional defiance of statutory policy? The answer must surely be in the negative unless this approach conflicts fundamentally with more important principles and we do not think this is the case.

The appropriateness of an award of damages for a loss of opportunity caused by a breach of the Act was reaffirmed in Canada Cement Lafarge Ltd., [1981] OLRB Rep. Dec. 1722 and Consolidated Bathurst Packaging Ltd., [1984] OLRB Rep. Mar. 422.

105. The three decisions to which we have just referred were concerned with remedy for breach by one of the bargaining parties of the duty to bargain in good faith and make every reasonable effort to make a collective agreement. In The Corporation of the City of Thunder Bay, [1984] OLRB Rep. May 759, the Board found that a trade union had violated section 68 by misleading bargaining unit employees about the content of an offer which had been made by the employer during collective bargaining, action which the Board had earlier found (at [1983] OLRB rep. May 781) had been calculated to foreclose discussion or consideration within the bargaining unit of matters of particular interest to the complainants in that case. Those complainants would have received a higher rate of pay under the terms of the employer offer which had been wrongfully concealed than they received under the agreement the union ultimately made with the employer. The complainants asked that the union be ordered to pay them the difference between those two rates as damages.

106. The Board found that a causal connection between the union's breach of section 68 and the wage settlement finally adopted by the union was not established. In that context, it made these observations:

107. While the Board has indicated that where appropriate compensation will be awarded in respect of lost opportunity, the value of the opportunity lost must be realistically assessed, and the amount of compensation awarded must be a fair reflection of that value. Compensation for lost opportunity, like all heads of compensation, should not amount to punitive or exemplary damages, nor should it be a windfall which would not in any event have been enjoyed by the complaining party.

108. We are compelled to conclude, on the balance of probabilities, that no practical difference would have resulted if Ms. Rice and the other members of the bargaining committee had disclosed the alternative offer when they were asked about it in the general membership meeting by Mr. Roy and Mr. Zapior. In other words, we are satisfied, on the preponderance of the evidence, that the wage outcome affecting the complainants did not flow from the violation of the duty of fair representation. We also doubt the remedial value of making an order of compensation which would, in effect, amount to a transfer of money from one group of employees to another. The wage compression itself was not a violation of the Act. The duty of fair representation was breached by the misrepresentation and procedural maneuvering of a small group of individuals who have since forfeited their office. In these circumstances, the payment of damages sought by the complainants would be tantamount to compensating them for their losses resulting from wage compression. Moreover, given our conclusion that the bargaining unit should not be severed, we must have additional concerns. Any compensation ordered would be paid by the members of the Local. In these circumstances we seriously doubt the wisdom of an order whose practical effect will be to take money from one group of employees - who did not themselves commit the unfair labour practice - and put it into the pocket of the complainants. Quite apart from the impropriety of that order, it would in all likelihood exacerbate rather than heal the differences between these two groups. It would have a negative effect from a labour relations standpoint. In light of the Board's conclusion on the issue of compensation it is not necessary to deal with the alternative argument of the respondent union in respect of delay.

The finding in the second sentence of paragraph 27 was a sufficient basis for the Board's conclusion that no damages should be awarded. It is not clear whether or to what extent the observations which follow that sentence are meant to cast a doubt on the propriety or remedial value of an award of damages otherwise than in the particular circumstances of that case. They might be taken to express a general proposition that a union should not be ordered to pay to employees such damages as can be shown to flow from the union's breach of the Act if those damages might ultimately be paid out of funds collected from union members who are fellow employees of the successful complainants. If they do, we respectfully disagree. No one would for a moment suggest that a corporate wrongdoer should not pay damages because the funds to pay them come ultimately from shareholders or customers who were not participants in the corporation's wrongdoing, nor that an individual who breaches the Act should not pay compensation to his or her victim because the funds to do so might otherwise have been enjoyed by dependents of the wrongdoer who had not themselves participated in the wrongdoing. Giving effect to a claim for damages by one party to a collective bargaining relationship against the other can indeed have a negative effect on their labour relations: no one likes to be made to pay, and that dislike will be focused on the claimant who seeks the payment. That is not ordinarily a basis for refusing to grant a remedy in damages in other unfair labour practice contexts.

107. If prior consultation with Cuddy Boulevard employees would ultimately have resulted in a Cuddy Boulevard agreement more advantageous to the complainants than the existing one, then Local 175 should be made to pay damages to the complainants equal to the amount by which their wages and benefits fall short of what they would have been. It is admittedly difficult to know with any certainty what would have been the ultimate result of consultation. That depends on the answer to several difficult questions. Would the Cuddy Boulevard employees have ratified the terms arrived at on June 1, 1987? If not, would Local 175 have gone back to ask for more without a strike mandate? Would the Cuddy Boulevard employees have been prepared to go on strike? Would the parties have settled on improved terms without a strike? Would the value to the complainants of the improvements, if any, won by striking have outweighed the costs to the complainants of the strike?

108. Local 175's breach of section 68 is the reason why we do not know with certainty whether the Cuddy Boulevard employees would have ratified the terms of the existing Cuddy Boulevard agreement or been willing to go on strike for more. It is rather unusual for a union to suggestion, as Local 175 did in argument, that employees are unlikely to be interested in collective action to improve wages and working conditions because if they did not like the wages and working conditions currently provided by their employer they would not be working for that employer. A contrary assumption is ordinarily the basis of union organizing. On the evidence before us, by late May or early June some Cuddy Boulevard employees were interested enough in collective bargaining to discuss the possibility in the presence of, and with, members of Cuddy's management. Counsel for Local 175 repeatedly suggested to witnesses that they would not have been upset, as Cuddy Boulevard employees were at their first meeting with Mr. Dayman, if the wage rates and other provisions of the Cuddy Boulevard agreement had been the same as in the new Trafalgar Road agreement. While Local 175's failure to consult them was also a factor in their anger, that anger and the speed with which so many of them joined the RWDSU lead us to conclude it is most unlikely that the Cuddy Boulevard employees would have ratified an agreement which provided for wage rates lower than those in the expired 1985 agreement and gave them no immediate wage increase. When consulted, they would have urged Local 175 to get them more and, we believe, would have indicated a willingness to take strike action to get more. It seems most unlikely that Local 175 would have done nothing more in those circumstances. It would have gone back for more.

109. Local 175's breach of section 68 is the reason why we do not know with certainty what

more Local 175 could have got before or after carrying through on a strike threat. The uncertainty which is necessarily involved in making that determination is, therefore, no reason to avoid it. There is one thing we can say without much difficulty: it is most unlikely that Local 175 would have got as much in the Cuddy Boulevard agreement as it did get in the Trafalgar Road agreement. In addition to the distinguishing considerations articulated by Mr. Dayman, each of which had some validity, there is another consideration he and counsel for Local 175 would have been disinclined to articulate in the circumstances: getting more for the Cuddy Boulevard employees might have involved getting less for the Trafalgar Road group.

110. Accordingly, while we find that the 26 complainants are entitled to damages, we do not accept their counsel's submission that the measure of those damages is the difference between what they have been receiving under the current Cuddy Boulevard and what they would have been receiving under the current Trafalgar Road agreement if it covered them. Their damages are some fraction of that. We will determine what that fraction is if necessary, but it would be very much in the best interests of the affected parties - the 26 complainants and Local 175 - if they were to settle this last issue themselves.

111. Accordingly,

(a) We direct that Local 175 shall forthwith post copies of the attached notice marked "Appendix", duly signed by representatives of the respondent, on each and every of the bulletin boards and other locations in the Cuddy Boulevard plant which are ordinarily available to it for the posting of notices. The respondents shall keep the notices posted for 60 consecutive working days, and shall take reasonable steps to ensure that the notices are not altered, defaced or covered by any other material. To the extent that the respondent's use of bulletin boards and other locations is subject to a requirement that Cuddy approve the material the respondents propose to post, then Cuddy is hereby directed (pursuant to clause 103(2)(d) of the Act) to do whatever is necessary to ensure that the posting provided for in this paragraph is carried out.

(b) We direct that duly authorized representatives of the complainants and the respondent Local 175 shall meet with a labour relations officer designated by the Board's Manager of Field Services at a time and place appointed by that officer to attempt to settle the remaining question of the amount of damages to be paid by Local 175 to the complainants.

Unless within thirty days after the meeting date first appointed by the labour relations officer one of the affected parties requests that we render a more detailed decision with respect to the matter of damages, the Board's proceedings in connection with the complaint will be treated as at an end.

112. It follows from our disposition of the complaint that the certification application must be dismissed as untimely insofar as it affects the employees covered by the Cuddy Boulevard agreement, namely

all employees of Cuddy Food Products Ltd., 10 Cuddy Boulevard, London, Ontario save and except supervisors, persons above the rank of supervisor, nurses, office and sales staff, student in the school vacation period, and persons employed for not more than twenty-four (24) hours per week.

We note that the unit RWDSU described in its application as appropriate did not exclude persons employed for not more than twenty-four hours per week ("part-time employees") or students employed during the school vacation period ("students"). The application is timely with respect to a unit of part-time employees and students. No part-time employees or students were shown on the schedules filed by Cuddy as employed on the application date, however. We do not know whether RWDSU claims that there were such employees on that date. If it does, it should so advise the Registrar within 14 days of the release of this decision and request that the certification application be relisted for hearing. If no such communication is received within that time, the certification application will be dismissed.

Appendix

Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE. THE UNITED FOOD AND COMMERCIAL WORKERS' INTERNATIONAL UNION, LOCAL 175, HAVE ISSUED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH WE PARTICIPATED. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT IN 1987 BY FAILING TO CONSULT WITH PERSONS EMPLOYED BY CUDDY FOOD PRODUCTS LTD. AT ITS PLANT AT 10 CUDDY BOULEVARD IN THE CITY OF LONDON BEFORE ENTERING INTO THE CURRINT COLLECTIVE AGREEYENT COVERING EMPLOYEES AT THAT LOCATION.

THE BOARD HAS ORDERED US TO INFORM ALL EMPLOYEES IN THE BARGAINING UNIT OF THEIR RIGHTS.

THE LABOUR RELATIONS ACT GIVES EMPLOYEES IN A BARGAINING UNIT REPRESENTED BY A TRADE UNION THE RIGHT TO RE REPRESENTED IN A MANNER THAT IS NOT ARBITRARY, DISCRIMINATORY OR IN BAD FAITH, WHETHER OR NOT THEY ARE MEMBERS OF THAT TRADE UNION.

WE ASSURE ALL EMPLOYEES REPRESENTED BY THE UNITED FOOD AND COMMERCIAL WORKERS' INTERNATIONAL UNION, LOCAL 175, THAT:

WE WIL.L NOT DO ANYTHING THAT INTERFERES WITH THIS RIGHT.

WE WILL NOT ENGAGE IN ANY CONDUCT THAT IS ARBITRARY, DISCRIMINATORY OR IN BAD FAITH, IN THE REPRESENTATION OF ANY EMPLOYEE WE REPRESENT.

WE WILL COMPLY WITH ALL ORDERS OF THE ONTARIO LABOUR RELATIONS BOARD WITH RESPECT TO OUR BREACH OF THE ACT.

THE UNITED FOOD AND COMMERCIAL WORKERS' INTERNATIONAL UNION. LOCAL 175

PER:_____________________________

AUTHORIZED REPRESENTATIVE

PER:____________________________

AUTHORIZED REPRESENTATIVE

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

This notice must remain posted for 60 consecutive working days.

DATED this 9^th day of DECEMBER , 19 88