United Steelworkers of America v. Plaza Fiberglas Manufacturing Limited, 1990 CanLII 5659

United Steelworkers of America v. Plaza Fiberglas Manufacturing Limited

[1990] OLRB Rep. February 192

2018-88-U; 2019-88-U; 3122-88-U United Steelworkers of America, Applicant v. Plaza Fiberglas Manufacturing Limited and Plaza Electro-Plating Ltd., Citcor Manufacturing Ltd., and Sabina Citron, Respondents; United Steelworkers of America, Complainant v. Plaza Fiberglas Manufacturing Limited and Plaza Elec­tro-Plating Ltd., Citcor Manufacturing Ltd., and Sabina Citron, Respondents; United Steelworkers of America, Complainant v. Plaza Fiberglas Manufacturing Limited and Plaza Electro-Plating Ltd. and Sabina Citron, Respondents

BEFORE: Patricia Hughes, Vice-Chair, and Board Members M. Rozenberg and K. Davies.

APPEARANCES: L. A. Richmond, C. M. Mitchell, M. Crnkovich and J. Perquin for the applicant/complainant; Michael Gordon, Paul Wearing, Thomas F. Stefanik and Mary Eberts for the respondents.

DECISION OF PATRICIA HUGHES, VICE-CHAIR; February 23, 1990.

1For reasons set out below, my decision includes my findings, conclusions and the reme­dies I direct with respect to Board File Nos. 2018-88-U, an application under section 93 of the Labour Relations Act ("the Act"), and 2019-88-U and 3122-88-U, both complaints under section 89 of the Act. As they indicate in their decision, Board Members Rozenberg and Davies concur in those findings, conclusions and remedies with respect to the section 89 complaints; their separate decision stems only from the fact that my decision combines the section 93 application which was before only me, as well as both the section 89 complaints which were before the tri-partite panel.

I. Procedural Background and "Preliminary" Rulings

2In July 1988, the United Steelworkers of America ("the Steelworkers" or "the union") and Plaza Fiberglas Manufacturing Ltd. ("Plaza Fiberglas") and Plaza Electro-Plating Ltd. ("Plaza Electro-Plating") (together "the company" or "the employer") began negotiations for the renewal of their first collective agreement. On November 14, 1988, the company advised the employees working at Plaza Fiberglas that there was no work to be done at that location (the employees work­ing at Plaza Electro-Plating have never ceased work). Throughout these proceedings, the parties characterized the events of November 14th as a "lock-out". The union claims that that lock-out, which no one disputes was timely, is illegal because it was motivated by a desire to avoid the union and the ramifications of certification. It therefore filed an application under section 93 of the Act on November 24, 1988, naming as respondents Plaza Fiberglas, Plaza Electro-Plating, Citron Automotive Industries ("Citron Automotive") and Sabina Citron (Board File No. 2018-88-U). On the same day, it filed a complaint alleging that the same respondents had breached sections 15, 64, 66, 70 and 75 of the Act ("the first section 89 complaint") (Board File No. 2019-88-U). On March

20, 1989, after the panel had begun hearing that section 89 complaint, the union filed another sec­tion 89 complaint arising out of the ordering by the Minister of Labour of a final offer vote as requested by the employer ("the second 89 complaint"), alleging that Plaza Fiberglas and Plaza Electro-Plating and Sabina Citron had contravened sections 15, 40(1), 64, 66 and 70 of the Act (Board File No. 3122-88-U); on agreement of the parties, that complaint was heard by this panel together with the first section 89 complaint (see decision dated May 3, 1989).

3The union had requested that the first section 89 complaint and the section 93 applica­tion be consolidated; the respondents disagreed. A somewhat differently constituted panel orally refused consolidation, finding that urgency required that the section 93 application, which could be heard by a vice-chair sitting alone, be heard immediately (see Board File No. 2018-88-U, decision dated December 9, 1988). When it became clear that the urgency required by the section 93 appli­cation would not be matched by a corresponding urgency in the conduct of the case, counsel for all parties considered whether the section 93 application and the section 89 complaint should be heard together after all. The union took the position that they should be heard together, the respondents that they should not be so heard. This panel ruled that they be heard together. The parties agreed, however, that in the event of the panel's so ruling, the chair of the panel should hear the remainder of the evidence relating to the Citron Automotive documents (which had been the only evidence adduced on the section 93 application to that point) and should determine the section 93 decision alone and the tri-partite panel should decide only the first section 89 complaint (the second section 89 complaint had not been filed at that time). That is the approach that has been taken by the panel: the two section 89 complaints have been determined by the tri-partite panel and the section 93 application has been decided by the chair of the panel alone.

4As indicated, I began to hear the section 93 application, sitting alone. In that capacity, I ruled on some preliminary objections made by counsel for the respondents and heard Mrs. Citron give evidence with respect to documents which the parties had agreed should be produced in rela­tion to Citron Automotive. At the conclusion of that evidence, the tri-partite panel began to hear the section 89 complaint in File No. 2019-88-U. The same evidence was led at the same time in the section 93 application. In presenting its case, none of the parties differentiated between the first section 89 complaint and the section 93 application with respect to the evidence adduced. (The allegations in both are identical.) In fact, all the documentary evidence adduced through Mrs. Cit­ron's testimony before me alone was eventually put before the other two members of the panel, as well. Furthermore, having had the advantage of hearing all the testimony, I am able to say that there was no viva voce evidence adduced before me that was not effectively adduced again before the other members of the panel. Since Mrs. Citron testified again, we have all had the opportunity to hear all the witnesses and assess their credibility. Nor did the union seek any remedy in the sec­tion 93 application which it did not seek in the section 89 complaint. I observe in that regard that there is no remedy in the section 93 application which could not be given within the framework of the section 89 complaint. For these reasons, I am writing my conclusions with respect to the section 89 complaints and the section 93 application as one decision. Board Members Rozenberg and Dav­ies' concurring decision in File Nos. 2019-88-U and 3122-88-U follows.

5The union requested that Citcor Manufacturing Ltd. ("Citcor") be added as a respon­dent in the first section 89 complaint and in the section 93 application. "Citcor Manufacturing Ltd." is the amended name of "692299 Ontario Limited" which had been incorporated on Novem­ber 28, 1986; its articles of incorporation were amended on November 17, 1988 (three days after the lock-out) to reflect the change in name. Sabina Citron, the President of Plaza Fiberglas and Plaza Electro-Plating and of Citcor, explained that Citron Automotive, which was located at 14 Citron Court, Concord, is no longer in business and that it was amalgamated with Plaza Fiberglas on May 1, 1985. Citcor operates from 14 Citron Court. Although it was mistaken in the proper name of the entity, the union intended to name the entity operating out of 14 Citron Court. Unbeknownst to the union when it filed its complaint, that entity was Citcor, not Citron Automo­tive which had previously been located there. Furthermore, the employer has been aware of the proper name of the entity to which the work had been moved from the outset of these proceedings. Accordingly, "Citcor Manufacturing Ltd." is added to and "Citron Automotive Industries" is deleted from the style of cause as respondent. (In discussing the lock-out, I use "Citcor" to apply to the entity operating at 14 Citron Court, even though that was not its name until November 17th.)

6Counsel for the respondents submitted that should Citcor be added as a respondent, Plaza Electro-Plating should be deleted as a respondent since there has been no allegation nor any evidence that Plaza Electro-Plating has contravened the Act. Plaza Electro-Plating was found to be a common employer with Plaza Fiberglas within the meaning of subsection 1(4) of the Act by the Board when it certified the Steelworkers to represent employees of those entities (see decision dated February 7, 1986 in Board File Nos. 1465-85-R, 1466-85-R and 1467-85-U, "the certification decision"). Thus Plaza Electro-Plating and Plaza Fiberglas are treated "as constituting one employer for the purposes of [the] Act". Plaza Electro-Plating is therefore properly named as part of the company for which the union is certified.

II. The Historical Background

7It is useful to place the union's allegations within the perspective of the historical rela­tions between the union and the employer. As the Board's decisions and other proceedings show, those relations have been troubled since their inception.

8Plaza Fiberglas and Plaza Electro-Plating were founded by Adam Citron, husband of the current President, Sabina Citron, in the 1950s, eventually moving to their present locations at 4420 and 4460 Chesswood Drive (Plaza Fiberglas) and 4440 Chesswood Drive (Plaza Electro-Plat­ing). (Plaza Fiberglas also has a location at 50 Vanley Crescent.) Mrs. Citron had been involved with the companies to varying degrees since their beginnings, but became more so in early 1985 after her husband became ill; from September 1985, she was very active on a part-time basis (that is to say, she was required to share her concerns between the company and her husband) and then, after her husband's death on November 14,1985, she devoted herself to running the company. It is clear from her own testimony, as well as that of others, that Mrs. Citron reserves to herself not only the right to make all final decisions necessary to the company's functioning, but that she makes all the effective decisions integral to the day-to-day running of the company. She has the same relationship with Citcor.

9In September 1985, the Steelworkers filed an application for certification as bargaining agent of all employees (with the usual exceptions) of Plaza Fiberglas~ Plaza Electro-Plating and Citron Automotive in Metropolitan Toronto, accompanied by a complaint under section 89 of the Act, upon which the union based its request that it be certified pursuant to section 8 of the Act. Since Citron Automotive had no employees at the addresses named in the application, the applica­tion was not pursued against Citron Automotive. (See Plaza Fiberglas Manufacturing Limited, [1985] OLRB Rep. Oct. 1503.)

10In the course of the certification proceedings, the Board, on the request of the union, stated a case to the Divisional Court under section 13 of the Statutory Powers Procedures Act ("the SPPA") in relation to the employer's failure to post the notices to employees of the certification application as required by the Act. (See Plaza Fiberglas Manufacturing Limited, [1985] OLRB Rep. Nov. 1648.) In the result, Plaza Fiberglas and Plaza Electro-Plating were found in contempt and required to pay a fine.

11The Steelworkers were certified to represent employees at Plaza Fiberglas and Plaza Electro-Plating (treated as a single employer) after they and the company agreed to settle all out­standing issues between them; as part of the settlement, the company agreed that its conduct had been such that the union should be certified pursuant to section 8 of the Act and that was reflected in the Board's certification decision. The parties entered into their first collective agreement effec­tive October 20,1986. Although Mrs. Citron had requested an early start to negotiations renewing the agreement, in April 1988, the usual difficulties in scheduling meetings meant that actual negoti­ations into the renewal of the collective agreement began in July 1988. After several meetings, the union sought conciliation and finally a "no-board" report, which was granted on October 28, 1988. The parties were then in a legal strike/lock-out position as of 12:01 a.m. on November 14, 1988.

12At that time, Plaza Fiberglas, with about 200 employees in the bargaining unit, manu­factured fibre glass parts for trucks, including deflectors, sunshades, shrouds, a few other small parts and most significantly, hoods, for two major customers, Navistar and Volvo GM, and to a negligible extent, for Volvo Sweden. The Navistar work constituted about 60%-65% of the work performed by Plaza Fiberglas, with Volvo GM the vast proportion of the rest. Most of the work done at Plaza Fiberglas resulted in "production" hoods, that is, hoods which become part of new trucks. The production schedule of Plaza Fiberglas was thus driven by the assembly line demands of Navistar and Volvo GM. In addition, Plaza Fiberglas did service work for its customers; for example, service hoods are needed to replace hoods on damaged trucks. The demand for service hoods constituted about one per cent of the work done at Plaza Fiberglas. Plaza Electro-Plating repairs damaged bumpers, including replating or chroming of bumpers, and has 25 to 30 bargaining unit employees. Citron Automotive had been used for after market fenders (that is, metal, not fibre glass, parts) during 1982 and 1983, but subsequently became "dormant" when Mr. Citron became ill.

13On the week-end before the November 14th deadline, the molds used to make produc­tion and service hoods for both Navistar and Volvo GM were transferred to what became Citcor at 14 Citron Court in Concord, and therefore outside the scope of the bargaining unit. As a result, approximately 200 employees were locked-out. Toward the end of November, Navistar insisted that its work be returned to Plaza Fiberglas and their molds were returned; the company estab­lished a "return to work protocol" for recalling employees from the lock-out to which the union objected on the basis that it did not conform to the seniority clause of the collective agreement (the meaning of that clause and the wording of the seniority clause in the new agreement were conten­tious matters in bargaining). In any case, by mid-March about 110 employees had returned to work at Plaza Fiberglas, but since Navistar eventually withdrew all its business and there is currently no work being performed at Plaza Fiberglas, except production of about five hoods a week for Volvo Sweden, most of them were laid off. By the end of these proceedings, upwards of fifty employees were employed at Citcor making production and service hoods for Volvo GM.

III. The Issues

14The union's complaints involve allegations of bargaining in bad faith and of various unfair labour practices. Subsection 89(5) of the Act provides that a reverse onus applies in cases in which it is alleged that "a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to [the] Act as to his employ­ment, opportunity for employment or conditions of employment". In this case, therefore, as in many similar kinds of section 89 complaints before the Board, there is a mixed onus: with respect to the section 15 allegations, the union has the onus; with respect to the unfair labour practice alle­gations, the employer has the onus by virtue of subsection 89(5) of the Act. In Amoco Fabrics Ltd., [1982] OLRB Rep. Mar. 314, the Board dealt with similar allegations of bad faith bargaining and unfair labour practices arising out of a transfer of work; in that context, the Board said, at paragraph 29, that "[t]he burden is upon the complainant union to establish that the company has failed to bargain in good faith and make every reasonable attempt to make a collective agreement; the burden is upon the company to establish that.., the transfer of work.., was not the result of an anti-union motive or an intention to chill lawful union activity" (at para. 8); more specifically, "[t]he company bears the burden of coming forward with a full and satisfactory explanation estab­lishing the reasons for [in the context of that case] the layoff of the employees. . . ." (at para. 29). Under section 93, of course, the union has the onus of satisfying me that the respondents have engaged in an illegal lock-out. In the event, however, the issue of onus did not arise in the determi­nation of these matters.

15Furthermore, the Board must be satisfied that the employer's conduct is not motivated at all by a desire to interfere with the union's representation of the employees, or with the employees' exercise of rights, even if it was in part motivated by "legitimate business reasons": Sunnycrest Nursing Homes Limited, [1981] OLRB Rep. Feb. 261 and the cases cited therein.

16Once a party to a collective agreement has given notice of desire to bargain a renewal of a collective agreement or a new agreement, section 15 of the Act requires the trade union and the employer to "bargain in good faith and make every reasonable effort to make a collective agree­ment". In DeVilbiss (Canada) Limited, [1976] OLRB Rep. Mar. 49, the Board articulated at para­graphs 14 and 15 two important aspects of bargaining underpinning the duty imposed on the par­ties by section 15: one is "that of reinforcing an employer's obligation to recognize a trade union lawfully selected by employees as their bargaining agent"; the second purpose is "to foster ratio­nal, informed discussion thereby minimizing the potential for 'unnecessary' industrial conflict".

17Section 64 of the Act prohibits the employer from interfering with the union's represen­tation of employees, or, in essence, from undermining the union's status as the employees' exclu­sive bargaining agent. It acknowledges that once the union has been certified to represent the employees, the employer's direct contact with employees (and vice versa) is circumscribed. Nor may an employer penalize or treat differently an employee because he or she is a union member or for exercising rights under the Act, conduct proscribed by section 66 of the Act. Section 70 prohib­its a person from using intimidation or coercion to stop another person from exercising rights under the Act. These provisions are all designed to ensure that the certification is meaningful, both from the union's perspective and from that of the employees who expressed the desire to act col­lectively. Similarly, employees who oppose the union are not to be discriminated against on that ground.

18I turn now to the specific allegations. The first group of issues together comprise an alle­gation of failure to bargain in good faith, coupled in part with allegations of contraventions of sec­tions 64, 66 and 70 of the Act. (In light of my findings with respect to these allegations, I have not found it necessary to deal with an allegation by the union that the employer failed to provide nec­essary information relating to the employees' unemployment insurance claims.) The union has also brought an allegation that the company has engaged in an illegal lock-out, both under section 89 of the Act, citing a contravention of section 75, and under section 93 of the Act.

A. Surface Bargaining

19The duty section 15 imposes relates primarily to process. Therefore, the union and the employer may well negotiate in good faith and may well try to reach an agreement and yet fail to do so: such a failure would not constitute a violation of section 15. There is no duty to reach an agreement in fact, merely to make every appropriate attempt to do so. Thus "both parties are enti­tled to bargain hard for the agreement that they believe to be acceptable. This is so even if one of the parties has as [sic] overwhelming strength at the bargaining table and is able to achieve most or all of its needs": Radio Shack, [1979] OLRB Rep. Dec. 1220, at paragraph 66. For that reason, the Board makes a distinction between ''surface bargaining'' and ''hard bargaining''. The first is, in effect, "sham" bargaining, bargaining in such a way as to demonstrate an intention not to enter into an agreement; the latter refers, on the other hand, to the tabling of and insisting on "tough" positions which the other party may be extremely reluctant to accept. Either party may, with a few exceptions (such as an attempt to alter the scope of the bargaining unit), resort to economic sanc­tion to achieve the collective agreement it wants, if it has the strength to do so or is prepared to accept the cost. On their face, few proposals clearly cross the line from hard bargaining to surface bargaining. Accordingly, the Board "will be circumspect in finding surface bargaining based solely on the positions taken at the bargaining table": Aristokraft Vinyl Inc., [1985] OLRB Rep. June 799, at paragraph 34 (emphasis in original).

20A great number of proposals were the subject of negotiation, some still outstanding by the time these proceedings commenced. The union had the greatest difficulty with three of the company's proposals in particular, however: those on wages, the rules and seniority. The union had also proposed a new provision in the agreement, article 13.12(b), requiring the company to supply the union with the name, address and telephone number of each employee twice a year. The company refused to agree to this provision and, in fact, took strong exception to revealing employees' addresses without their consent.

21In brief, the union's wage proposal coincided approximately with the rates offered to certain employees at Plaza Fiberglas in contravention of the collective agreement: the union argues that the fact those higher rates were offered by the company shows what the market-rate was. The company should, the argument goes~ offer the market-rate and a failure to do so~ when offered to individual employees means the wage proposal is intended for rejection. The parties also disagreed on how jobs were to be reclassified.

22"The rules" refers to rules covering conduct in the workplace which the parties had agreed to during their 1986 negotiations, but which had not been included in the collective agree­ment. They had been posted in the workplace, however. Mrs. Citron instructed the management committee that they were to be included in the collective agreement; the union objected to such inclusion. This was initially the only debate between the parties on the rules. At that stage, the company's proposals provided that "Committing any of these violations will be sufficient grounds for disciplinary action, up to and including discharges depending upon the seriousness of the offence and the judgment of management".

23In its November 29th proposals, tabled after the resumption of talks in conjunction with the return of the Navistar work to Plaza Fiberglas, the company amended the last line of its rules proposal to read: "Committing any of these violations will be sufficient grounds for discharge". The union felt it could not agree to such a change because to do so would limit its power to repre­sent the employees. The only issue it could put to an arbitrator would be whether the employee had in fact committed the breach alleged; the arbitrator would have no power or jurisdiction to change the remedy if a breach were found. There seems no doubt that Mrs. Citron's strong posi­tion on this issue stems from a March 1988 arbitration award in which Plaza Fiberglas was directed to reinstate an employee who had been discharged because Mrs. Citron considered that he had behaved in an insolent and insulting manner towards her (Re Plaza Fiberglas Manufacturing Ltd. and United Steelworkers (1988) 1988 CanLII 9255 (ON LA), 33 L.A.C.(3d) 193 (Aggarwal). Mrs. Citron apparently refused to reinstate the grievor because she felt she could not operate the company under such circumstances; eventually the matter was settled with a financial payment without the employee's reinstatement.

24The union sought to add a new article 13.01(b) to the seniority provisions stating explic­itly that "Seniority shall be on a Company wide basis and shall mean total length of continuous ser­vice in the bargaining unit as defined in Article 3". The first agreement did not contain such a spe­cific clause, although article 13.05 states that "[w]hen it becomes necessary to reduce the work force due to a lack of work, seniority (being length of continuous service with the company) shall be the guiding factor for such layoffs". The company argued that the existing language meant that seniority was departmental-wide and refused to change the wording. In its October 21st proposal, the company sought to specify that the provision that "job opportunity and security shall increase in proportion to length of service" would refer explicitly to "departmental" service (see old article 13.02(a)). Then in its final offer, the company inserted "departmental" before the word "service" into what would be article 13.06(a) (the old article 13.05). The union says it could not accept word­ing limiting seniority to departmental seniority because, as it put it, that would be giving up some­thing it already had.

25While the company proposals referred to above would be difficult for the union to accept, they do not in or by themselves constitute "surface bargaining", thus justifying a finding of bargaining in bad faith. The disagreement over the meaning of the seniority clause is really one over the meaning of the words in the current provision, a matter more properly before an arbitra­tor than before the Board. Regardless, that disagreement is not evidence of surface bargaining. As for the allegation that the company changed its proposal on the rules when and in the manner it did, the Board has recognized that "the possibility of a party to bargaining 'changing its mind' is necessarily present in any bargaining situation" and is to be expected as the dynamics of bargaining change: Westroc Industries Limited, [1981] OLRB Rep. Mar. 381, at paragraph 25. The manner in which the company determined and offered wage rates outside these negotiations gives me diffi­culty, as I indicate below. But that is different from determining whether the rates offered with respect to the new collective agreement were designed for rejection and thus an example of surface bargaining.

26While the proposals proffered by the company are not evidence of bad faith bargaining, however, the nature of the employer's conduct overall during bargaining does lead me to conclude, that the employer has not met its obligation to bargain in good faith. That conduct includes the composition of the company's bargaining committee, the failure to disclose the movement of work, and the direct bargaining with individual employees.

B. The Obligation to Send an Informed Committee to Negotiations

27The members of the employer's negotiating team were Michael Gordon, the employer's solicitor, sometimes replaced by Thomas Stefanik, a member of the same law firm as Mr. Gordon, Leslie Fiddich, the company's accountant and Gail Mariano, the company's personnel manager. Mrs. Citron attended the first meeting between the employer and the union and declined to attend further meetings because she did not care for the attitude of the union's chief negotiator, John Per­quin; she felt that he had insulted her at the first meeting. She also attended or was present in the vicinity of conciliation meetings. Mr. Gordon testified that he advised her not to attend any meet­ings until the conciliation meetings; he thought there would be a greater chance of getting an agreement if she were not present because an outside negotiator would be able to take a low-key position and treat some of the comments made by the union team as a normal part of bargaining. Mrs. Citron and the management bargaining committee met at the onset of negotiations and dis­cussed the union's proposals and at that time~ she gave instructions with respect to the committee's ability to respond to each proposal; in that regard, Mrs. Citron explained that each item was dealt with separately and that while the committee members could give their opinion on how the com­pany should respond, once it was decided whether an item was negotiable or non-negotiable (we conclude that that determination was made by Mrs. Citron in the final analysis), the committee could not act in a manner inconsistent with that determination. At least one member of the com­mittee discussed each meeting with Mrs. Citron afterwards and she received copies of minutes pre­pared by Mr. Gordon.

28Mrs. Citron explained that the committee could not be given the authority to reach agreement with the union because none of the members was knowledgeable enough about the plant. Mrs. Citron maintains a firm hand on all aspects of the operation of the companies of which she is President. It is clear that the members of the negotiating committee were not informed when they were placed on the committee and did not become informed during negotiations other than to become informed by Mrs. Citron of the positions they were to take. There was even confusion between Mr. Gordon and Mrs. Citron as to whether the committee had to take the whole package back to Mrs. Citron for approval (Mr. Gordon's understanding) or could take separate items (Mrs. Citron's view). The respondents have breached the Act by failing to send to the bargaining table a committee composed of a knowledgeable group of people. The employer's sending an uninformed committee was inimical to the process of "rational, informed discussion" which is crucial to bar­gaining in good faith.

C. The Obligation to Disclose an Intention to Move Work

29The reason for requiring disclosure during negotiations of an intention to move work outside the geographic scope of the recognition clause is stated succinctly in Westinghouse Canada Limited, [1980] OLRB Rep. Apr. 577, at paragraph 39:

39. ... the section [15] duty requires an employer to respond honestly when asked in bargaining if he is contemplating initiatives of the type which have a real likelihood of significantly impact­ing on the bargaining unit. Similarly, can there be any doubt that an employer is under a section [15] obligation to reveal to the union on his own initiative those decisions already made which may have a major impact on the bargaining unit. Without this information a trade union is effec­tively put in the dark. The union cannot realistically assess its priorities or formulate a meaning­ful bargaining response to matters of fundamental importance to the employees it represents. Failure to inform in these circumstances may properly be characterized as an attempt to secure the agreement of the trade union for a fixed term on the basis of a misrepresentation in respect of matters which could fundamentally alter the content of the bargain.

30In Amoco Fabrics, supra, at paragraphs 40 to 46, the Board concluded that "it would be unrealistic and unresponsive to the sensitive nature of collective bargaining relationships to require employers to bargain with their unions about corporate decisions made in the belief, held in good faith and on reasonable grounds by the employer, that employees will not be adversely affected. In those circumstances the degree of disclosure remains in the discretion of the employer"; further­more, "[c]onsiderable latitude must be given to management in the exercise of its judgment".

31In summary, the thrust of the duty to disclose in cases in which the union has asked about changes in the workplace which would likely affect the bargaining unit, is that the employer must respond honestly in order to permit the union to negotiate in relation to such changes and if it considers necessary, modify its own proposals in light of such knowledge.

32By the spring of 1988, Plaza Fiberglas was having difficulty maintaining the after-market or service portion of its production. Clifford Gout is the sole salesperson for Plaza Fiberglas, and the liaison, or "troubleshooter", between Mrs. Citron and Navistar. In 1987, he had raised with Mrs. Citron the possibility of using a plant he owned in Oakville to make service hoods. Then, sometime around mid-June 1988, he proposed to Mrs. Citron that he open up the Concord plant, then Citron Automotive, which contained machinery, but which was not then in operation. Mrs. Citron eventually agreed. In July 1988, he started to transform the Concord plant, but did not really have the necessary equipment until September and October. Then he began to hire employ­ees; initially, there were seven employees there being paid from $12.00 or $14.00 to $20.00 an hour. The necessary spray and gelcoat booths were built, and then old molds, no longer used in production, were brought over from Plaza Fiberglas. Mr. Gout had involved both Navistar and Volvo GM in these plans and their implementation. Raj Dipchan, previously the acting plant man­ager at Plaza Fiberglas, and now and since January 1989, the plant manager at Citcor and John Alanko, the production manager from Plaza Fiberglas, among others, assisted Mr. Gout in getting Citcor ready for use.

33Mr. Gout's goal had been to get the plant into operation before the crash season which lasts from September to March or April, but various delays meant that by November, the plant was still not operational in the way Mr. Gout had hoped. Volvo GM was satisfied, it seemed, but Navistar was not and did not give approval to begin. While he was trying to start up Citcor, Mr. Gout continued to be involved in sales. He had discussions with both major customers about short­ages since both of them were unhappy with the level of production. Plaza Fiberglas agreed to ship them fifty production hoods a day, but then the customers wanted fifty-two, then fifty-four, a level Plaza Fiberglas never reached. In order to make as many production hoods as possible, the service backlog was allowed to increase. Mr. Gout also told the customers, on Mrs. Citron's instruction, that labour negotiations were going on at Plaza Fiberglas and that a settlement would likely be reached.

34By the middle of November, Mr. Gout was close to getting Navistar's approval. And then "all of a sudden", molds were moved into the Citcor plant on a November Saturday (in fact, this was November 12th, the move having been begun late the previous night, November 11th). There was, said Mr. Gout, "organized chaos". He saw John Alanko, Ram Dipchan and Steve Nirad from Plaza Fiberglas; an additional fifteen or twenty employees were hired quickly. The plant was completely filled up with thirty molds for Volvo GM and fifty for Navistar, the number moved according to Sadrudin Jamal, then production co-ordinator at Plaza Fiberglas, and other fixtures. Mr. Gout described the crew as "green". Within a week, Volvo GM personnel came to Citcor and by the end of the week, Navistar representatives were in attendance; they competed with each other trying to have the hoods they wanted produced because Citcor could not produce enough hoods for both of them. Both Mr. Gout and Mrs. Citron found Volvo GM to be more appreciative of Mrs. Citron's efforts than was Navistar which eventually had their work returned to Plaza Fiberglas. Navistar had also been in the process of sending their work to other manufacturers (at one point requesting that some molds be sent to a manufacturer in the United States) and that intensified until finally Plaza Fiberglas lost Navistar as a customer in June or July 1989. Mr. Gout's connection with Citcor ended after the lock-out at Plaza Fiberglas.

35Mr. Gout seemed to want to give us the impression that Citcor was for all intents and purposes his operation. There existed no particular business arrangement between Mr. Gout and Mrs. Citron (for example, no partnership agreement or any agreement as to what percentage of profit-sharing might be distributed) in relation to Citcor. He did receive some payment, unspeci­fied, for setting up Citcor. Mr. Gout paid no rent; he paid for none of the equipment. He acknowl­edged that he could not make Mrs. Citron remove the molds moved there over the November 11th weekend. He expected to be reimbursed for the wages paid the workers he hired, although he says, and Mrs. Citron says, that he decided totally on his own what to pay them. If that were so, it would be an aberration in Mrs. Citron's relationship with her business. If Mr. Gout did decide to pay these rates on his own, he did so believing that he had the implicit or a priori approval of Mrs. Citron to do so, a conclusion consistent with Mr. Gout's testimony that Mrs. Citron told him to "get who you need and do what you need to get them". I conclude that Mr. Gout's activities at Citron Automotive were carried out on behalf of and with the approval of Mrs. Citron.

36Mr. Dipchan was involved in moving the equipment from Plaza Fiberglas to Citcor. He recalled Mrs. Citron's giving instructions about the move "probably a couple of days before" it was done; it took the weekend to get the equipment moved. He went over to Citcor to supervise on the Tuesday after the move, November 15th. At that time, there were employees from Plaza Fiber­glas, as well as "some new faces" there. Ramjanali Khoja is the company's health and safety co-or­dinator; he also does some personnel work such as initiating new employees. Mr. Khoja was not involved in the move to Citcor, but he thought there were about six Plaza Fiberglas employees at Citcor initially and between twelve and fifteen in June 1989. Mr. Dipchan estimated that about one-third of the forty employees, including supervisors, now at Citcor were former Plaza Fiberglas employees. Mr. Jamal thought there were about nine or ten Plaza Fiberglas employees at Citcor in July 1989.

37After two weeks or so, Mr. Dipchan returned to Plaza Fiberglas after the molds and tooling for the Navistar work had been transferred back. By the time Mr. Dipchan testified, no more Navistar work was being done at Plaza Fiberglas and very little work for Volvo Sweden (five hoods a week rather than the five a day which had previously been done). When the Navistar work went back to Plaza Fiberglas, Mr. Dipchan was told to recall employees in order of seniority (that is, by departmental seniority); however, he was told by Mrs. Citron, without being given any rea­sons, not to recall certain employees who had been at Citcor. Towards the end of December, Mr. Khoja became involved in the recall, recalling on the basis of seniority in the classification. He did not recall people who were at Citcor. By the middle of March, about 110 employees had been recalled to Plaza Fiberglas, but the majority were laid off when Navistar withdrew its work and in June, when Mr. Khoja testified, there were about 30 persons employed there, including ten per­sons on workers' compensation and long-term illness.

38The company argues that it did not need to disclose the attempts over the summer of

1988 to open up the plant at 14 Citron Court because the plant would be doing only service parts, work which constitutes only about one per cent of the work done at Plaza Fiberglas; it would not, therefore, have a substantial impact on the bargaining unit. In any case, it argues, moving the ser­vice work was really a contacting out of the work as permitted by the collective agreement. Fur­thermore, the move of all the work on the weekend of November 11th was a strike contingency plan and did not need to be disclosed for that reason, in the company's view.

39There is no doubt that the union specifically asked whether the company intended to move any of its operations. In its July 1988 proposals, in accordance with Steelworker policy, the union sought to amend the recognition clause, article 3.01(b) to extend to the entire province "[i]n the event the Company moves any portion, or the total operation, out of its present location to another in the Province of Ontario". Mr. Gordon told us that he had specifically asked Mrs. Citron whether she had plans to move or close the plant or whether she was thinking of doing so. He said he was confident of the representation that there were no such plans when he made it. Nor did he subsequently become aware of any plans to relocate. At a meeting held on August 31st, the union modified its article 3.01(b) proposal to limit the extended recognition to moves or relocations within an 80 kilometre radius. Mr. Perquin testified that this distance had nothing to do with the Citcor location which falls within that radius relative to Plaza Fiberglas. At the seventh meeting, on September 26th, clause 3.01(b) was listed as an outstanding issue. At the October 18th concilia­tion meeting, attended by Mr. Stefanik rather than Mr. Gordon, the company maintained its posi­tion that no move was intended. After a break in the evening, the union withdrew its proposed clause 3.01(b) based on the company's assurance that it would not move or relocate part of the operation.

40Mrs. Citron says that she told Mr. Gordon on October 21st that the company could no longer say that it would not move the operations. Mr. Gordon never referred to that conversation in his evidence. I find that if such a conversation occurred, it was couched in language that did not make the point clear (that is, Mrs. Citron may at some point have instructed a change in strategy on bargaining that point, but she did not explain that the reason was because she intended to move some or all of the work); I find it more likely, that it did not occur at all. I find Mrs. Citron's testi­mony of interest in establishing her perception of the November 11th move, however. She specifi­cally said in the context of the shift of work to Citcor over the summer that she did not think she had to make Mr. Gordon privy to her business decisions and had not done so; it is reasonable to conclude, therefore, that she saw the possibility of moving the production work to Citcor to be of a different kind. I believe that Mr. Gordon had in fact explained her duty to disclose to Mrs. Citron, although she denies he did so, and that she concluded that the movement of production work that she was contemplating in October fell within that duty. I also find that neither Mr. Gordon nor any other member of the company's negotiating team was aware of the November 11th movement of molds until after it had occurred. Indeed, Mr. Gordon found out for the first time from Mr. Per­quin when they met for their planned meeting on November 14th at 10.00 a.m.

41The employer has the right to contract work out under the collective agreement. In this case, the plan was to move the service work to a company owned by Mrs. Citron, not to contract it out to another manufacturer of auto parts. Indeed, that manner of dealing with Plaza Fiberglas's problems, with the shortfall in production and with the customers' rising dissatisfaction, was one of the alternatives rejected because of the knowledge that once the work went to another supplier, it would be hard to bring it back to Plaza Fiberglas. Other alternatives were tried but did not remedy the problem: these included additional shifts, training additional employees and operating over the Christmas holidays. The employer (as a result of Mrs. Citron's actions) moved the service work to a location owned by her which happened to be unorganized.

42I conclude that when the employer decided to move work from Plaza Fiberglas to then Citron Automotive and now Citcor, it did not initially contemplate the transfer of all the work, but only of service work, and that production of parts specifically designated as service parts consti­tuted about one per cent of the work performed at Plaza Fiberglas. When the union requested dur­ing negotiations whether there were plans to move any part of the operations, it was told "no" in very clear language. On the face of it, the transfer of this proportion of the work does not appear to be a transfer which would have a significant impact on the bargaining unit; this is especially so when the movement of service work would leave a clear space for the making of production hoods. In fact, for the most part, Plaza Fiberglas was able to supply adequate numbers of production hoods, but at the expense of service hood production. In that context, the company referred to the service work intended to be transferred to Citcor as "excess" work and thus not work done by the bargaining unit.

43The process of making service and production hoods is the same except that production hoods are baked twice and service hoods only once with the result that service hoods take about half an hour less time to make. The two types of hoods are sent to different locations and service hoods are made with older molds. Once the equipment necessary to make service hoods is in place, however, hoods intended for new vehicles, rather than for repair, can easily be made. All that is necessary is to move the molds, a task which we can conclude from the evidence can be accomplished in fairly short order. Plaza Fiberglas has shipped service hoods for production pur­poses when requested by the customer. It is really the customers' needs which determine the use to which hoods are put and their needs change according to the demands of their customers. It is also evident that while Citcor is not capable of the same level of production as Plaza Fiberglas is,it is capable of a greater level than is required to satisfy the service demands alone as they existed at the operative time.

44I am satisfied that at least by October 21st, if not before, the employer (through Mrs. Citron) contemplated transferring work which it should have foreseen could have "a real likeli­hood of significantly impacting on the bargaining unit" and as such should have been revealed to the union. Mrs. Citron testified that she had asked Mr. Gout on October 21st to start hiring people and had told him "we needed to work at a faster pace" at Citcor. A week or ten days before November 14th, she tried to assure her customers that she could supply about 30 per cent of their requirements. Whatever the intention when Mr. Gout started to prepare Citcor, by mid or late October, the employer anticipated that Citcor would be doing more than the so-called "excess" service work.

45The development of the Citcor plant, intentionally or otherwise, made the November move far easier and conceivably, even possible. It permitted Citcor to go into immediate produc­tion of both Navistar and Volvo GM work, although not to the satisfaction of Navistar, at least. It is hard to imagine a more dramatic example of a move which has had and which clearly would have a significant impact on the bargaining unit or more adverse impact on the majority of employees than the November move to Citcor. All the work was transferred to Citcor and some 45% of it was never returned to Plaza Fiberglas.

46Was that move merely the realization of a strike contingency plan which the employer was entitled to put in place? An employer may attempt to continue its production in the case of a strike by hiring temporary replacement workers or by having management employees do the work. The employer's argument in this case is that it moved the work in order to continue production during the anticipated strike. As a bargaining ploy, Mr. Perquin gave the company the impression that the members were prepared to strike, but never actually said they would strike. The compa­ny's negotiating team reached its own conclusions that in the circumstances of this bargaining, with so many significant issues still outstanding as the strike/lock-out deadline approached, a strike would almost certainly occur. Mr. Gordon said that under the circumstances, he expected a strike. Mr. Perquin had stressed how important various issues were and how dissatisfied the employees were. In the event, the union did not strike and the members voted to continue bargaining. Mrs. Citron told us she was concerned that once a strike began, the customers would want their molds taken out of Plaza Fiberglas. She considered whether she could operate at Plaza Fiberglas during the strike, and had discussions with a security firm about doing so. She decided against that approach because she did not relish crossing a picket line or the difficulties in getting equipment in or out of the plant. Stockpiling was not a viable option in this context given the nature of the indus­try. Mr. Gordon reminded Mrs. Citron that the molds were the property of the customers and that she had a responsibility to take care of them, but testified that Mrs. Citron did not tell him that was why she had moved them.

47I am satisfied that the employer and Mrs. Citron were in part motivated by a desire to continue production in the event the anticipated strike was realized. I also consider that none of the work was moved back until after Navistar demanded its work be returned to Plaza Fiberglas, even though Mr. Perquin told Mr. Gordon on November 14th that the union would not strike. (That does not mean, of course, that the union would not change its mind.) Volvo G.M.'s work has never been returned; as of the last day of hearing it was still being done at Citcor. Indeed, Mr. Gordon told the union late in November that the company intended to operate both Plaza Fiber­glas and Citcor. In my view, the intention to produce a significant portion of the work at Citcor was sufficiently formed in October to require disclosure. While the timing of the November move suggests it was intended to forestall the impact of a strike, the conduct of the employer prior to the move and after it supports the view that the move was made at least in part to avoid any further dealings with the union.

48Having regard to all the circumstances, I conclude that the move to Citcor on the November 11th weekend was contemplated as a move of the kind which requires disclosure under the principles articulated by the Board in the Westinghouse case, supra. Similarly, the impact of the planned movement of work over the summer and early fall was by mid to late October forseeably such that it would or could have a significant impact on the bargaining unit and it, too, should have been disclosed. By that time, in fact, it was no longer possible to treat the two plans as discrete. The service work plan merged with the plan to move all the work to Citcor. To the extent that the plans could be seen as discrete, however, failure to disclose either plan was thus another example of the employer's bargaining in bad faith.

D. Direct Bargaining with Employees

49The evidence is clear and Mrs. Citron admits that certain persons were hired at Plaza Fiberglas at starting rates above those in the collective agreement. For example, two forklift driv­ers, S. Nash and K. Itwaru, were paid $10.00 instead of $7.80 and a gelcoat sprayer. S. Garwood, was paid $10.00 rather than $8.32. A mold maker, Banwait Singh, was paid $15.60 or $16.00, with no corresponding rate in the collective agreement. They were hired or paid at rates above those provided in the collective agreement on the ground that the company needed those particular skills quickly and could not acquire them at the rates in the agreement. The company's classification pro­posal placed these employees in their own (new) classifications in order to permit the continued payment of the higher rates (with increases). Mrs. Citron claimed that she instructed management personnel to speak with the union about paying these rates, but apparently that was never done. Mr. Gordon, however, testified that she did not know she could not unilaterally pay above the col­lective agreement rates; even after she was informed she could not, the employees continued to receive higher rates.

50It is also clear that members of management approached certain employees in the bar­gaining unit and offered them employment at Citcor after the lock-out had commenced. Counsel for the respondents argues that because only about five persons in total were involved, if selective hiring at Citcor is a violation, it is a de minimis violation and that furthermore, in hiring these per­sons, the employer and Mrs. Citron were motivated by a "kind" animus because they felt an obli­gation to long-term employees. The evidence does not support the inference that only long-term employees were hired at Citcor, but in any case, such a motive does not displace the fact that such selective hiring during the lock-out is another example of the employer's bypassing the union and bargaining directly with bargaining unit employees.

51As the Board pointed out in Inglis Limited, [1977] OLRB Rep. Mar. 128, at paragraph 25, "[i]mplicit in the prohibition imposed by Section [64] of the Act in respect of direct bargaining between the company and the individual employee[s] is the requirement that the items bargained lie within the union's exclusive right of representation. It has never been suggested that Section [64] prohibits the company from offering employment outside the scope of the union recognition clause . . .". Thus in that case, the company did not violate the Act by not disclosing its plans to relocate, nor in dealing directly with the employees when it offered them jobs at the new location, because the relocation did not fall within the guidelines set out in the Board's jurisprudence as establishing a violation of the Act. In this case, however, the offer to the employees occurred dur­ing a lock-out which I find below to be unlawful.

52The duty to bargain exclusively with the union continues after the lock-out. Direct bar­gaining with the employees in the bargaining unit is one further element in the employer's bargain­ing in bad faith under section 15 of the Act. Such direct bargaining is indicative of the employer's refusal to satisfy its obligation to recognize the Steelworkers as the exclusive bargaining agent of the employees. Bargaining outside the contours of the appropriate bargaining relationship militates against the parties being able to achieve a collective agreement in an atmosphere marked by good faith as required by the Act. While I do not conclude that the treatment of union members or sup­porters was different from the treatment of non-members or those opposed to the union (despite the apparent failure to hire two union supporters who applied for jobs at Citcor), the effect of the direct bargaining is to give the employees the impression that they cannot depend on the union and that the employer does not believe it needs to negotiate with the union to achieve its aims. As such, it also contravenes section 64 of the Act.

53In addition to that direct contact with employees by the employer, Mrs. Citron dealt directly with the employees when she was ordered to provide employees' addresses to the union by the Minister of Labour when he directed a final offer vote. It is not in dispute that Mrs. Citron decided that she would ask the employees whether they wanted their addresses revealed and would provide an address to the union only if the employee consented. Accordingly, she arranged for all the employees to be brought into her office on March 17, 1989, where each was required to fill in a form indicating whether he consented to the release of his address to the union.

54Counsel for Mrs. Citron argues that the demand for addresses by the union was a pro­vocative act intended to put Mrs. Citron at a disadvantage or, to use counsel's words, "to get [Mrs. Citron's] goat" because the union knew how Mrs. Citron felt about releasing addresses. As her counsel pointed out, Mrs. Citron had been found in contempt by the Divisional Court for failing to give documents in the form in which she had been ordered by the Board to provide them to the union during the course of the section 93 proceedings before me sitting alone: she had refused to reveal the addresses appearing on those documents without the individuals' consent. (See the Board's decision stating a case to the Divisional Court at [1989] OLRB Rep. May 479 and the Divi­sional Court's decision at [1989] OLRB Rep. May 528, leave to appeal dismissed at [1989] OLRB Reports June 707 (C.A.).) Regardless of her personal sensitivity on this issue, Mrs. Citron's con­duct in this regard is another example of her failure to accept the union as the exclusive bargaining agent of the employees and therefore contravenes section 64 of the Act.

55The union argued that the calling of employees to Mrs. Citron's office and requiring them to fill in the form contravenes section 70 of the Act. In Keith MacLeod Sutherland, [1983] OLRB Rep. July 1219, the Board stated, at paragraph 12, that "for intimidation or coercion to be established, there must be a threat or other intimidating or coercive action coupled with an express or implied demand that a person (for example) refrain from exercising a right under the Act or from performing an obligation under the Act". The standard for determining whether conduct by an employer has intimidated employees is not whether employees were actually intimidated, but whether a reasonable employee would feel intimidated or threatened in the circumstances; that is, it is an objective standard. Being called into the employer's office and asked whether one is willing to reveal information to the union not only undermines the relationship between employees and the union, but might well raise concerns for an employee who might reasonably wonder whether such a question is intended to discern where the employee's loyalty lies. Nevertheless, I am satis­fied that Mrs. Citron was not demanding expressly or implicitly that the employees refrain from exercising a right under the Act or from performing an obligation under the Act and thus do not find a contravention under section 70, although, as indicated, such conduct does contravene sec­tion 64 of the Act.

56I emphasize that my determination of this issue is based on the direct communication with the employees, not on the employer's failure to comply with the Minister's direction. As counsel for the employer and Mrs. Citron pointed out, the remedy from that perspective lies in the Minister's refusal to hold the vote requested by the employer, until the addresses are provided. The Board has no jurisdiction over a failure to comply with the Minister's direction made in con­nection with a request or a vote under section 40 of the Act. It does have jurisdiction to entertain allegations about conduct of the sort complained about here which happens to arise in the context of the section 40 request and it is that jurisdiction I have exercised in dealing with this aspect of the complaint.

E. The Back-to-Work Protocol

57The union alleges that the back-to-work protocol established by the company when it returned Navistar's work to Plaza Fiberglas contravenes section 15 of the Act. The company began to call back employees on the basis of need and departmental seniority. For example, laminators were called back first because their task is the first step in the production of hoods. Only employ­ees who had been laminators at the time the lock-out commenced were recalled, based on depart­mental seniority. The union wanted any employee who could do the job to be called back, on the basis of the union's interpretation of the collective agreement. Both parties' positions were there­fore consistent with their interpretation of the seniority clause in the collective agreement. As already indicated, the interpretation of the collective agreement is more properly the task of an arbitrator than of the Board.

58There was also an allegation that even on the employer's interpretation of the seniority provision, some employees with greater seniority were not recalled before those with less. Both Mr. Khoja and Mr. Dipchan, who were involved in the recall, said they did not recall at least some people who were at Citcor; Mr. Dipchan testified that that was on the instruction of Mrs. Citron. I am satisfied that to the extent some employees were not recalled when they should have been, they were subsequently recalled and more junior employees were laid off. The parties dealt with this matter as a result of the union's complaint to the employer. I am not satisfied that any such failure to recall according to seniority constituted a contravention of the Act.

F. The Lock-out

59Section 75 of the Act prohibits an employer from calling an unlawful lock-out. The rem­edies available are governed by subsection 89(4). Section 93 of the Act empowers the Board to make a declaration that an employer has called an illegal lock-out and to direct the employer to take or refrain from taking specific action in relation to the lock-out. Under the scheme of the Act, an attempt to enhance labour peace is made by restricting the periods during which unions may legally strike and employers may legally lock-out employees. Such provisions are consistent with the notion that employers and unions are to settle their disputes either through arbitration or recourse to the Board. In this case, the union alleges a violation of section 75 of the Act within the context of its first section 89 complaint and has also brought an application under section 93 of the Act.

60The Labour Relations Act defines a lock-out as follows:

1(1) In this Act,

(k) "lock-out" includes the closing of a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of his employees, with a view to compel or induce his employees, or to aid another employer to compel or induce his employees, to refrain from exercising any rights or privileges under this Act or to agree to provisions or changes in provisions respecting terms or conditions of employ­ment or the rights, privileges or duties of the employer, an employers' organization, the trade union, or the employees;

61As indicated, there is no dispute that the conduct complained of is a lock-out within the meaning of clause 1(1)(k) of the Act. Nor is it disputed that the lock-out is timely. A timely lock­out serving as a economic weapon to convince the union to agree to the company's proposals is not illegal. But

if a lock-out is imposed by an employer 'with a view to compel or induce his employees to refrain from exercising any rights . . . under this Act', it is illegal even if it is otherwise timely. . The Board stated in Westroc Industries Limited, [1981] OLRB Rep. March 381 at 392:

“…….a lock-out aimed at dissuading employees from exercising rights under the Act is never lawful and the concept of timeliness simply has no application to such activity." [emphasis added]

That aim need not be the sole, principal, or predominant one of the lock-out. It is sufficient to establish that a lock-out is unlawful, regardless of timeliness, if unlawful intent forms even a part of the motivation for the lock-out" (Aristokraft Vinyl Inc., supra, at para. 28 [emphasis added in that case]).

62Having regard to the employer's conduct during bargaining, I am satisfied that the employer was motivated at least in part by the desire to undermine the union when locking out the employees. Mrs. Citron attempted to operate her business from Citcor rather than from Plaza Fiberglas; it was her intention to remove from the effect of the collective agreement the larger por­tion of the business covered by the agreement. She continued to try to make Citcor work until she was forced by pressure from Navistar to return its work to Plaza Fiberglas. By the time the hearing had been completed, a year after the lock-out had commenced, the work for Volvo GM remains at Citcor, outside the geographic scope of the bargaining unit. The compelling or inducing which is characteristic of a lock-out was not in respect of whether the company would continue to operate at the Plaza Fiberglas (or Chesswood) location, but rather whether (at least some of) the employ­ees would agree to work at Citcor or the Citron Court location without union representation. To the extent that the decision to move appears to be irrevocable in that Mrs. Citron returned work only under pressure and has never returned some work, I note that "[a] permanent lock-out of bar­gaining unit employees would be very difficult to characterize as employer conduct aimed at achieving a collective agreement": Westroc Industries, supra, at paragraph 19.

63In my view, the nature of the lock-out indicates that it was less for the purpose of imposing economic pressure than for the purpose of undermining the union's representation rights, and thus constitutes and reflects a fundamental unwillingness of the employer, resulting from Mrs. Citron's own reluctance, to recognize the union as the exclusive bargaining agent of the employees. On this point, I observe that Mrs. Citron appeared to be operating in the belief that the union did not enjoy the support of the majority of employees. Although she denied saying it, I accept Mr. Khoja's testimony that during discussions with Madan Sen Pydiah, the President of the local, on the morning of March 17th, before eliciting the employees' agreement to release their addresses, Mrs. Citron commented that she knew half the employees did not want the union. Such a remark is consistent with her animosity from the beginning to a unionized workplace and her reluctance to accept the union as the employees' exclusive bargaining agent. I am persuaded that one purpose of the move was to take away the union's representational rights and to force it to reorganize the employees at the new location.

64Section 72 of the Act deals with the timeliness of lock-outs and it seems clear that prohi­bitions against an employer's locking-out an employee or threatening to do so must be seen in that context. Thus lock-outs which fall outside the temporal limits set by section 72 are illegal. In respect of lock-outs which are timely but nevertheless illegal in the sense referred to in Westroc Industries, supra, and Aristokraft Vinyl, supra, however, section 72 has no applicability. Neither the definition of "lock-out" in clause 1(1)(k) of the Act nor the prohibition under section 75 of the Act makes reference to timeliness either directly or by reference to section 72. While the conduct which grounds an unlawful lock-out may constitute a contravention of another section of the Act (in this case, section 64), it also constitutes a contravention of section 75 which is a substantive sec­tion invoked procedurally in this context by section 89 of the Act.

65Accordingly, I find that the employer has engaged in an unlawful lock-out under section

75 of the Act.

66A finding under section 89 that section 75 of the Act (which was specifically pleaded in this case) has been violated makes an assessment under section 93 redundant. Section 93 is an extraordinary section which permits a trade union to have an allegation of an illegal lock-out heard by a vice-chair sitting alone and therefore, in the normal course, it is scheduled more quickly than is a section 89 complaint. Both it and the parallel section 92 relating to illegal strikes are intended to expedite applications brought thereunder. If section 93 is to be effective, it must be reserved for matters requiring urgency. In this casey despite the Boards' efforts to expedite the matter, it became clear that the section 93 application was not being or could not be dealt with urgently. Tak­ing into account the parties' merged treatment of the first section 89 complaint and the section 93 application, the fact that the remedy sought under section 93 can be granted under section 89, I therefore, in my discretion under section 93, dismiss the application under section 93 of the Act.

67I hereby declare that the employer, Plaza Fiberglas and Plaza Electro-Plating, has con­travened sections 15, 64, and 75 of the Labour Relations Act and that Citcor and Sabina Citron have contravened section 64 of the Labour Relations Act.

IV. Remedies

68I turn now to the issue of remedies. Counsel for the employer argued that no order should be made against Plaza Electro-Plating should we find that the respondents or any of them has violated the Act. As already explained, Plaza Electro-Plating has been found to be a common employer with Plaza Fiberglas for the purposes of the Act. The following declarations and orders therefore apply to Plaza Electro-Plating as part of the entity constituting the employer in this case.

69Counsel for Mrs. Citron argued that no remedies should be granted against Mrs. Citron personally because it would be embarrassing to her and would mean that the company would not attend renewed negotiations with the "sunniest of dispositions". Mrs. Citron is clearly the only sig­nificant decision-maker for the corporate respondents; I am satisfied that all the actions taken by the corporate respondents were at her direction or with her approval. The wording of sections 15 and 75 make it clear that they apply only to an employer (the latter with respect to calling an unlawful lock-out, at least), in contrast with section 64 which refers to a "person acting on behalf of an employer". Mrs. Citron is not an "employer" and neither section 15 nor section 75 apply to her in her individual capacity. Section 64 does apply to her, however, and to that extent, therefore, she is legally capable of and has been found to be in contravention of the Act by directing the move­ment of work and by bypassing the union and dealing directly with employees in contravention of section 64. (For similar reasons, in relation to the employees represented by the union, Citcor's actions in bargaining with the employees constitute a violation of section 64.)

70I therefore order that the employer, Plaza Fiberglas and Plaza Electro-Plating, cease and desist from breaching sections 15, 64, and 75 of the Act and that Citcor and Sabina Citron cease and desist from breaching section 64 of the Act.

71I direct that the employer, Plaza Fiberglas and Plaza Electro-Plating, convene a series of meetings between itself and the Steelworkers and bargain in good faith and make every reason­able effort to make a collective agreement with the union.

72The union requested that we direct the employer to table a proposal containing the rates and conditions prevailing at Citcor and a back-to-work protocol in accordance with the terms and conditions of the expired collective agreement. Apart from the appropriateness of the Board's directing directly or indirectly under section 15 of the Act that a collective agreement be comprised of certain terms and conditions, my findings with respect to allegations of surface bargaining and the allegations about the back-to-work protocol would make such a direction even more inappro­priate in this case and I decline to grant that remedy.

73I further direct that the employer, Plaza Fiberglas and Plaza Electro-Plating, Citcor and Mrs. Citron compensate all employees in the bargaining unit as of November 14, 1988, for all mon­etary losses arising reasonably out of the employer's, Citcor's and Mrs. Citron's violations of the Act, including interest payable in accordance with the principles set out in Hallowell House Limited, [1980] OLRB Rep. Jan. 35 (see Practice Note No. 13 of the Board's Practice Notes). As that case directs, in determining the amounts payable, the parties are to apply the principle of miti­gation of damages.

74I direct that the employer, Plaza Fiberglas and Plaza Electro-Plating, pay the union's reasonable negotiating costs arising out of the employer's violation of section 15 of the Act, but I decline to order the payment of the union's legal costs, seeing no reason to depart from the Board's usual practice in this respect.

75The union also requested that we extend the union's certification to Citcor, following the Board in Humpty Dumpty Foods Limited, [1977] OLRB Rep. July 401, at paragraph 20. That course is not appropriate in the circumstances of this case. In Humpty Dumpty Foods Limited, supra, there was a threatened lock-out; in this case there was an actual lock-out which I find con­travened section 75 of the Act. It is equally accurate to say here as it was in that case that "[t]he effect of the . . . lock-out in the instant case has been to induce or compel those in the employ of the employer at the time the threat was made to agree to work without benefit of the terms and conditions contained in the collective agreement negotiated with the company in addition to restricting the exercise of their right to collective representation under the Act". In that case, how­ever, the same employer was involved in both the old and new locations. While the extensive involvement of Mrs. Citron in both Plaza Fiberglas and Plaza Electro-Plating, on the one hand, and Citcor, on the other, leads to the temptation to consider the two entities as related, and as per­sonified in Mrs. Citron, the legal reality is that Citcor is a separate legal entity and a separate employer. Citcor has never been found under subsection 1(4) of the Act to be "one employer for the purposes of [the] Act" with Plaza Fiberglas and Plaza Electro-Plating.

76I am satisfied that the only way to put the union in the same position it would have been had the employer (under sections 15 and 64) and Mrs. Citron (under section 64) not breached the Act, is to return the work to Plaza Fiberglas. Accordingly, I direct the employer and Mrs. Citron to return all the work moved to Citcor from Plaza Fiberglas back to Plaza Fiberglas, thereby bring­ing the employees performing the work under the scope of the collective agreement, and further direct that there be no further movement of work without disclosure by the employer to the union during bargaining for a renewal of the collective agreement, nor any further movement of work otherwise in contravention of the Act by the employer and/or by Mrs. Citron.

77The union requests the addresses of employees at Plaza Fiberglas who were in the bar­gaining unit as of November 14, 1988 and of the employees at Citcor as of the date hereof for a period of one year or until the right of the union to addresses is included in the collective agree­ment. The union requested the addresses and telephone numbers of the employees in its July pro­posals. The provision of addresses was shown as agreed to in the company's November 29th pro­posals, although Mrs. Citron expressed dismay at seeing it so noted. Counsel for the union relied on Co-Fo Concrete Forming Construction Ltd., [1987] OLRB Rep. Oct. 1213 for the proposition that the union requires the addresses in order to represent employees properly. At paragraph 29 of that decision, the Board states that the principles articulated in the cases which determine that a trade union is entitled to the names and hourly rates of employees in the bargaining unit for which it is negotiating apply equally to the provision of addresses and telephone numbers as well. Such information is necessary to the union's "obligation to fairly represent all employees in the bargain­ing unit, both in collective bargaining and in the administration of any collective agreement". Fur­thermore~

[un making informed decisions and effectively performing its statutory responsibilities, informa­tion from the employees it represents can be as important to the trade union as the information the employer supplies. A trade union may need to communicate with some or all of the employ­ees in the bargaining unit, including non-members of the union, in order to properly represent their interests: to get their input, to verify information supplied by the employer or to give notice of a strike or ratification vote . • for example. Information about how bargaining unit employees can be contacted is, thus, information to which the union is prima facie entitled.

78The only reason we were given for not directing that addresses be provided is that this is a matter to which Mrs. Citron is particularly sensitive and therefore to require her to provide the addresses would be punitive. We are of the view that if the union is entitled to information, the employer's reluctance to provide it is not a reason not to direct that it be provided. Although Co-Fo Concrete Forming, supra, was decided under section 40a of the Act and in that context the failure to provide addresses was considered to be evidence of a "failure of the respondent to make reasonable . . . efforts to conclude a collective agreement" and of a "refusal of the employer to recognize the bargaining authority of the trade union" within the meaning of section 40a, I am per­suaded that the reasoning in that case applies more generally. I note that we are not asked to determine and I am not determining whether a failure to provide addresses constitutes bargaining in bad faith within the meaning of section 15 of the Act. I am of the view that the addresses will be necessary to the union's ensuring that the employer has complied with the remedies set out herein and to the union's continued attempts to represent the employees in the bargaining unit. For that reason, I direct that the respondents provide the union with the addresses of bargaining unit employees at Plaza Fiberglas as of November 14, 1988 and to advise the union of changes of address when so advised until a collective agreement is signed.

79The union has requested that a Notice to Employees and a copy of this decision be mailed by the employer to each employee in the bargaining unit as of November 14, 1988 and to all employees hired since that date at Citcor, and that the Notice and decision be posted at Citcor and Plaza Fiberglas. I have considered whether it is necessary to mail to employees who would see the posted decision. Plaza Fiberglas had ceased operating except in a very minor way before the hear­ing concluded. Posting notices at Plaza Fiberglas at least is clearly inadequate under those circum­stances until the work is returned; even so, there are fewer employees at Citcor than were working at Plaza Fiberglas. A factor which applies to both locations is that employees have the opportunity to read the decision at their leisure and without concern for how their interest may be interpreted. Taking these factors into account, I direct that a copy of the Notice to Employees attached hereto as an Appendix and a copy of this decision be mailed by the employer to each employee in the bar­gaining unit as of November 14, 1988 and to each employee, who was not in the bargaining unit, who was hired at Citcor subsequent to that date. I further direct that the employer, Plaza Fiberglas and Plaza Electro-Plating, and Citcor post copies of the attached Notice in conspicuous places on their premises where they are likely to come to the attention of employees, and keep the notices posted for sixty consecutive working days. Reasonable steps shall be taken by the respondents to ensure that the Notices are not altered or defaced or removed. Reasonable access shall be given to a representative of the Steelworkers to permit the union to satisfy itself that the posting require­ments have been satisfied.

80The union wants the Notice signed by Mrs. Citron on behalf of the employer and Cit­cor. Counsel for Mrs. Citron argued that we should direct that it be signed by a "representative" of the company, as the Board directed in Plastics CMP Limited, [1982] OLRB Rep. May 726, because it would be "humiliating" for Mrs. Citron to sign it herself and would therefore be puni­tive. I am of the view that this is an appropriate case to name the person who is to sign on behalf of the corporate respondents. By so directing, I have no intention of humiliating Mrs. Citron, nor do I so direct because she might feel it would have that effect. Rather, I direct that Mrs. Citron sign on behalf of the corporate respondents because in the circumstances of this cases it is the only way in which the notice can be effective. The Board directs the posting (and/or mailing) of a notice of the sort attached hereto in order to inform the employees of their rights and of the remedies which have been ordered by the Board. It is intended to assure the employees that the Board is able to protect their rights. A representative of the employer is required to sign it to indicate acknowl­edgement by the employer that the employees do have those rights and that the Board has ordered those remedies. In doing so, the employer is not asked to agree with or approve any statement in the notice, but merely to show that it recognizes their reality. I have found that Mrs. Citron makes all the significant decisions for the employer and for Citcor; I am satisfied that it is only Mrs. Cit­ron's own signature which is truly "representative" of the company and which will signify to the employees that the employer and Citcor acknowledge the Board's findings and orders. I therefore direct that the Notice to Employees be signed by Sabina Citron on behalf of Plaza Fiberglas and Plaza Electro-Plating and on behalf of Citcor. I have found that she is personally liable for viola­tions of section 64 of the Act and therefore direct that she also sign the notice in her personal capacity.

81After the hearing in these matters was finished, the Board received correspondence from the respondent ostensibly relating to the issues before the panel. I have reached my decision herein based solely and entirely on the evidence adduced before me during the hearing. In my view, it would be a rare occasion when a party should be able to reopen proceedings during the period the case is being decided. To do otherwise would be an invitation for parties to delay the resolution of the matter. There may be occasions when the parties are agreed that the Board should deal with events or submissions made subsequent to the completion of the hearing, and the panel also agrees it would be appropriate to do so; there may also be situations in which the panel believes it advisable to reopen the matter prior to reaching and releasing a decision. Neither of those circumstances pertains here. A party is, of course, free to seek to raise what it considers rele­vant matters following the release of a decision. My refusal to consider any matters brought to the panel's attention at this stage is not to be treated as a determination on the relevance of the mat­ters or on the outcome of any dispute arising out of them. Rather, I am concerned that, the hear­ing having been completed, these proceedings may become even more protracted than they have been.

82The Board remains seized to deal with any matters arising out of the implementation of remedies or calculation of damages.

DECISION OF BOARD MEMBERS MARY ROZENBERG AND KAREN S. DAVIES; February 23, 1990

We concur with the findings, conclusions and remedies with respect to the section 89 complaints as stated in the decision of the chair of the panel.

Appendix

Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD, ISSUED AFTER A SERIES OF HEARINGS BEFORE THE BOARD. THE BOARD FOUND THAT PLAZA FIBERGLAS MANUFACTURING LTD. AND PLAZA ELECTRO-PLATING LTD. (PLAZA) VIOLATED SECTIONS 15, 64 AND 75 OF THE LABOUR RELATIONS ACT AND CITCOR MANUFACTURING LTD. (CITCOR) AND SABINA CITRON VIOLATED SECTION 64 OF THE ACT, AND HAS ORDERED US TO INFORM THE AFFECTED EMPLOYEES OF THEIR RIGHTS.

THE LABOUR RELATIONS ACT GIVES ALL EMPLOYEES THESE RIGHTS:

To ORGANIZE THEMSELVES;

To FORM, JOIN. AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF

A TRADE UNION;

To ACT TOGETHER FOR COLLECTIVE BARGAINING;

To REFUGE TO DO ANY OR ALL OF THESE THINGS.

WE ASSURE ALL OF OUR EMPLOYEES THAT:

WE WILL NOT DO ANYTHING TO INTERFERE WITH THESE RIGHTS.

WE WILL CEASE AND DESIST FROM VIOLATING THE ACT.

WE WILL FULLY COMPENSATE EMPLOYEES WHO LOST WAGES AND

BENEFITS BECAUSE OF THE ILLEGAL LOCEOUT.

WE WILL COMPENSATE THE UNITED STEELWORKERS OF MIERICA (THE UNION I FOR ITS MONETARY LOSSES RESULTING FROM OUR VIOLATIONS OF THE ACT.

PLAZA WILL CONVENE FORTHWITH BARGAINING MEETINGS BETWEEN ITSELF AND THE UNION WILL BARGAIN IN GOOD FAITH AND MAKE EVERY REASONABLE EFFORT TO MAKE A COLLECTIVE AGREEMENT WITH THE UNION.

PLAZA WILL FORTHWITH PROVIDE THE UNION WITH A LIST OF THE NAMES AND ADDRESSES OF EMPLOYEES IN THE BARGAINING UNIT AS OF NOVEMBER 14. 1988 AND WILL ADVISE THE UNION OF CHANGES OF ADDRESSES WHEN SO ADVISED UNTIL A COLLECTIVE AGREEMENT IS SIGNED.

PLAZA FIBERGLAS MANUFACTURING LTD. AND PLAZA ELECTRO—PLATING LTD.

PER_______________________________

CITCOR MANUFACTURING LTD. SABINA CITRON

PER:____________________________ PER_______________________________

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.