Prosper Brizzard et al. v. Wilf McIntyre et al., 1990 CanLII 5713

Ontario Labour Relations Board

[1990] OLRB Rep. October 1052

1213-89-U; 1224-89-U; 1225-89-U; 2034-89-U Prosper Brizzard, Richard Brizzard, Robert Casson, Richard Koski, David Jaggard, Manfred Krause, Robert Krause, David Ross, Aulius Tiitto, Darrell Westover, Raynard Jacobson, Bruce Nordstrom and Larry Jaggard, Complainants v. Wilf McIntyre, Fred Miron, Roland Frayne, Niels Husman, Larry Duhaime and International Woodworkers of America - Canada Local 2693, Respondents; Gravel and Lake Services Limited, Complainant v. Roland Frayne, Neils Husman and Larry Duhaime, Respondents; Gravel and Lake Services Limited, Complainant v. International Woodworkers of America - Canada Local 2693, Respondent; Gravel and Lake Services Limited, Complainant v. International Woodworkers of America - Canada Local 2693, Fred Miron and Wilf McIntyre, Respondents

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members R. M. Sloan and D. A. Patterson.

APPEARANCES: Fred Bickford and Paul LeCuyer for Gravel and Lake Services Limited; W. Dubinsky, Fred Miron and Wilf McIntyre for the respondents; Paul Gordon for the complainants in Board File No. 1213-89-U (participating as interveners in the other matters).

DECISION OF THE BOARD; October 29, 1990

1The history of this proceeding can be reconstructed from the Board decisions which have previously been issued in the course of the hearings held to date. However, we find it useful to review some of it here as well.

2On the face of it, these matters are being heard together. On agreement of the parties, however, the Board has first heard the complaint in Board File No. 2034-89-U. Accordingly, it is probably more accurate to say that they are being heard consecutively.

3Board File No. 2034-89-U bears a filing date of November 15, 1989. It relates to a "last offer", or "final offer" (as it is often called) vote held on November 8, 1989 under section 40 of the Labour Relations Act, which vote was requested by the complainant Gravel and Lake Services Limited ("Gravel and Lake"). In it, Gravel and Lake asserts, in essence, that those of its employees in the bargaining unit represented by the respondent trade union voted to accept its last offer and that by failing to sign a collective agreement reflecting that final offer and instead continuing with a strike which had begun on or about April 24, 1989, the respondent trade union and the individual respondents have engaged in unlawful strike activity contrary to the Labour Relations Act.

4Because it was filed as an unlawful strike application, the Board scheduled the matter to be heard on November 27, 1989 which is significantly more quickly than another kind of unfair labour practice complaint would normally have been scheduled. As reflected in the Board's decision dated November 28, 1989 with respect thereto, none of the complaints were resolved or otherwise disposed of on November 27, 1989. Nor was this panel seized with any of the matters as a result of anything which happened on that day. Because of the nature of the complaints and the limited availability of this panel, the parties were offered the option of proceeding before a differently constituted panel on three days during each of the weeks of December 4, 1989 and January 1, 1990. They declined that option and chose instead to continue before this panel on December 5, 1989 and on February 2, March 2, 8,16, 28, and 29, 1990 which they had been advised (before electing to proceed before this panel) were the first available hearing dates for this panel. The number of hearing dates scheduled was on the basis of the parties' estimates of how long it would take to conclude the hearing in Board File No. 2034-89-U.

5At the hearing on December 5, 1989, it quickly became apparent that the seven scheduled hearing days would not be nearly enough. Consequently, in order to facilitate an expeditious hearing, and in consultation with the parties, the Board authorized a Labour Relations Officer to inquire into and report to the Board with respect to the description of the bargaining unit and the list of employees in it for purposes of this proceeding. Even that, however, was not enough to enable the hearing to be completed within the time originally allotted. Eventually, and after some sharp exchanges between the parties which we do not find it appropriate to detail here, additional hearings were scheduled for May 28 and 29, 1990 and the Board concluded hearing the evidence and representations of the parties. Subsequently, by decision dated July 9, 1990, the Board issued its decision with respect to Board File No. 2034-89-U, with written reasons to follow, as follows:

1. The history of these proceedings has been set out in prior decisions of the Board and does not bear repeating here. Having regard to the evidence before the Board and the representations of the parties with respect to Board File No. 2034-89-U, the Board finds:

(a) that the complainant employer does not operate a business or undertaking which is within federal jurisdiction and that the Board does therefore have

jurisdiction in this proceeding;

(b) that the affected bargaining unit, within the meaning of section 40 of the Labour Relations Act and for purposes of the complaint in Board File No. 2034-89-U, is all employees of the complainant who are engaged in woods and marine operations on the limits and on the work sites of the complainant. The Board finds that this includes all employees of the complainant in both its marine and woods operations, and all employees of contractors engaged by the complainant to perform work in its woods and marine operations, save and except the employees of contractors who are engaged to perform occasional special services not commonly performed by employees of the complainant and employees of contractors engaged for the purpose of erecting structures for whom another trade union has bargaining rights;

(c) that of the persons who cast ballots in the vote conducted under section 40 of the Labour Relations Act on November 8, 1989, Robert Casson, Larry Duhaime, Roland Frayne, Raynard Jacobson, Robert Krause, Bruce Nordstrom, Aulius Tiitto, and Dorothy Westover were employees in the bargaining unit who were entitled to do so;

(d) that on the basis of the ballots cast by eligible voters, the proposed collective agreement in the offer of the complainant employer which was the subject of the vote conducted under section 40 of the Labour Relations Act on November 8, 1989 has been accepted by the majority of the employees in the affected bargaining unit;

(e) that the actions of the respondents, including their refusal to execute a collective agreement reflecting the proposed collective agreement in the offer of the complainant which was accepted by the bargaining unit employees as aforesaid does not, in all the circumstances, constitute an unlawful strike;

(f) that, in failing to enter into a collective agreement with the complainant by refusing to execute a collective agreement reflecting the offer of the complainant which was accepted by the bargaining unit employees as aforesaid, the respondent trade union has failed to bargain in good faith and make every reasonable effort to enter into a collective agreement, contrary to section 15 of the Labour Relations Act.

2. Accordingly:

(a) the Board declares that the respondent International Woodworkers of America - Canada, Local 2693 has failed to bargain in good faith and make every reasonable effort to enter into a collective agreement with the complainant;

(b) the Board directs the respondent International Woodworkers of America -Canada, Local 2693 to submit to the results of the vote held under section 40 of the Labour Relations Act on November 8, 1989 as aforesaid;

(c) the Board directs the respondent International Woodworkers of America -Canada, Local 2693 to forthwith execute a collective agreement which reflects the offer of the complainant which was accepted by the bargaining unit employees in the aforesaid vote.

3. The Board's written reasons for the above will follow.

4. The Registrar is directed to schedule all of the complaints herein for hearing. The purpose of the hearing in Board File No. 2034-89-U is to hear the evidence and representations of the parties on the issue of damages. The purpose of the hearing in the other three matters is to hear the representations of the parties with respect to how they should proceed.

6Having regard to the circumstances of this case, and particularly the issues involved, the Board found it appropriate, in the exercise of its discretion, to direct the respondents to proceed first. Having proceeded first, the respondents also had the usual right of reply.

7The hearings before the Board occupied 11 days. In addition to the viva voce evidence of the three witnesses who testified before the Board, the parties placed hundreds of pages of documentary evidence before the Board. Pursuant to the Board's authorization, a Labour Relations Officer convened hearings at which the parties had the opportunity to call, examine and cross-examine the witnesses, under oath, with respect to the matters in issue before the Board. The evidence adduced before the Officer was transcribed in his report to the Board, copies of which were provided to the parties. The Officer's examinations took 9 days and yielded 532 pages of transcript and numerous exhibits. There was some confusion in pages 228 to 318 of the transcript of the Officer's Report. This part of the report was redone and subsequently there were no objections to the accuracy of the Officer's Report as amended. As it turned out, much of the evidence which it took so long to put before the Board had little more than, at best, marginal relevance to the issues in Board File No. 2034-89-U. Consequently it was of little assistance to us and it would be a pointless and unnecessary exercise to engage in an exhaustive review of the evidence.

8There were numerous objections and rulings by the Officer in the course of his inquiry. None of these were pursued before the Board, either pursuant to Board Practice Note #4 or otherwise. We do, however, wish to note one matter which arose before the Labour Relations Officer and of which there was mention before the Board. In the course of the Officer's inquiry, Gravel and Lake caused Bruce Nordstrom, a complainant in Board File No. 1213-89-U to be called to testify. Counsel for Mr. Nordstrom objected to Mr. Dubinsky continuing to represent any of the respondents on the basis of what he alleged constituted a conflict of interest for Mr. Dubinsky. The Officer noted the objection and proceeded with his inquiry. Subsequently, counsel for Mr. Nordstrom advised the Board that he first became aware of the circumstances which led him to make the objection, just before he made it. He indicated that the basis for his objection was that subsequent to some related civil litigation being commenced, but before the proceedings before the Board herein had been commenced, the respondent trade union had "retained" Mr. Dubinsky (who is not now, and was not at any material time, a lawyer) to assist Mr. Nordstrom with some unemployment insurance matters arising out of his "employment" with Gravel and Lake. Counsel asserted that in the course thereof Mr. Dubinsky became privy to information concerning Mr. Nordstrom which is pertinent to these proceedings and which thereby created a conflict of interest for Mr. Dubinsky, and made it inappropriate for him to continue as the representative of a party adverse in interest to Nordstrom. It was not clear to us how the Board could, other than as authorized by section 23 of the Statutory Powers Procedure Act, which no one asserted applied in the circumstances, exclude a person appearing before it as either agent or advisor. Even if the Board could, what would prevent Mr. Dubinsky from the passing the information in question on to someone else for use in these proceedings? It did not appear to us that there was any solicitor-client privilege to preclude him from doing so. Nor was it obvious that there was any fiduciary duty which would operate to preclude him from doing so in these circumstances. Counsel for Nordstrom was unable to assist us in that regard and further advised the Board that, other than asking the Board to note the objection, he was not going to press the matter. In the circumstances, the Board concluded that the objection was not in fact being pursued, and it would therefore not make any ruling or take any action with respect to the objection, and would admit the evidence adduced before the Officer in that respect.

9The Board was also required to make numerous rulings in the course of the proceedings before it. Again, we do not find it either necessary or appropriate to set all of these out. We do, however, wish to note some of the more significant ones. In the course of the second day of hearing, the respondents' challenged, for the first time, the Board's jurisdiction to deal with any voter eligibility questions arising out of the section 40 vote taken on November 8, 1989. For reasons given in its decision dated March 5, 1990 (reported at [1990] OLRB Rep. March 262), the Board dismissed the respondents' objection in that respect.

10In cross-examination of Paul LeCuyer, principal of the complainant, on March 16, 1990, the respondent sought to elicit evidence of what it asserted was improper conduct with respect to the section 40 vote. Upon objection by the complainant, the Board ruled that it would not allow that line of questioning and that it would not admit such evidence.

11The respondents asserted that they had first learned of the basis for their assertions in the course of the Officer's inquiry. The respondents relied on the Board's decisions in McGregor Hosiery Mills, [1976] OLRB Rep. Oct. 583 and Western Fair Association, [1978] OLRB Rep. Jan. 97, and on a passage of page 36 of the textbook Ontario Labour Relations Board Law and Practice (Jeffrey Sack, Q.C. and C. Michael Mitchell, 1985, Butterworths, Toronto) in support of their submission that they were, in the circumstances, entitled to cross-examine LeCuyer with respect to what they alleged had been improper conduct. McGregor Hosiery, supra, and Western Fair, supra, seem to stand for the proposition that a party which has not provided particulars of what asserts is improper conduct can nevertheless raise an issue, for the first time, in cross-examination. We respectfully decline to follow those decisions.

12In our view, McGregor Hosiery, supra, and Western Fair, supra, are inconsistent with section 72 of the Board's Rules of Procedure and section 8 of the Statutory Powers Procedure Act which require that a party which intends to assert improper conduct provide particulars of its allegations in a timely manner. They are also inconsistent with more recent Board jurisprudence (see, for example, Trigiani Contracting Ltd., [1979] OLRB Rep. Feb. 141 and Pebra Peterborough Inc., [1987] OLRB Rep. March 421), and with the Board's movement toward requiring greater disclosure in both pleadings and the production of documents in the interests of fairness and more expeditious proceedings. What particulars are required will, of course, depend on the circumstances, including the nature of the proceeding, but, in our view, a party which intends to make an allegation of improper conduct is generally obliged to provide particulars thereof whether it intends to pursue the issue through its own witnesses or in cross-examination of witnesses called by another party (or parties).

13The circumstances of this case demonstrate the merits of the Trigiani Contracting, supra, and Pebra Peterborough, supra, approach and the problems with McGregor Hosiery, supra, and Western Fair, supra. In this case, there had been no allegation of any improper conduct with respect to the taking of the vote herein prior to March 16, 1990. The respondents were aware of the allegations which they sought to cross-examine LeCuyer about no later than January 26, 1990 (which was the last day of the hearings conducted by the Officer, and at which time they had not yet closed their case before the Board.) They failed to offer any explanation for failing to make and particularize their allegations prior to March 16, 1990. We were satisfied that the respondents had failed to raise these new allegations in any timely or proper way, and that it would have been unfair and prejudicial to Gravel and Lake, and perhaps to the interveners to permit the respondents to proceed with them. In the result, the line of questioning which the respondents sought to pursue was not relevant to any matter properly placed in issue before the Board and we therefor ruled as aforesaid.

14The Board also ruled that it would not allow the respondents to ask Wilf McIntyre, one of the individual respondents in Board File No. 2034-89-U and a witness they called in reply, questions with respect to exhibits 25, 26 and 27 which had not arisen out of Gravel and Lake's evidence (the interveners called no evidence before the Board). Not only did such questions amount to the respondents attempting to split their case and were therefore not proper reply in any event, but matters to which the questions related should have been, as a matter of fairness, put to Gravel and Lake's witness (LeCuyer) in cross-examination (see Brown and Dunn, (1893) 1893 CanLII 65 (FOREP), 6 R. 67 (House of Lords); Peters vs. Perras, (1909) 1909 CanLII 178 (SCC), 42 S.C.R. 244 Supreme Court of Canada; United Cigar Stores Ltd. and Buller, (1931) 1931 CanLII 436 (ON SCAD), 66 O.L.R. 593, Court of Appeal; Machado vs. Berlet, (1986) 1986 CanLII 2600 (ON HCJ), 57 O.R. (2d) 207; 15 C.P.C. (2d) 207 (High Court of Ontario).

15The respondents asserted that Gravel and Lake operates its business within Federal jurisdiction and that the Board is therefore without jurisdiction to entertain the complaints herein. Under the Constitution Acts, 1867 to 1981, matters relating to employment law, including labour relations, are prima facie within Provincial jurisdiction. Labour relations matters come within Federal jurisdiction only if it is demonstrated that they are an integral part of a Federal work, business or undertaking, or of a "local work of undertaking" excluded from Provincial jurisdiction by section 92(10) of The British North America Act, 1867 (see, for example, Toronto Electric Commission vs. Schneider [1925] D.L.R. 5 (J.C.P.C.); Northern Electric Company Limited, 63 CLLC 26 15484; General Enterprises Ltd., [1977] 1 CLRB Rep. 432; Montcalm Construction Inc., (1978) 1978 CanLII 18 (SCC), 93 D.L.R. (3d) 641; 79 CLLC 26 14190; [1979] 1 S.C.R. Supreme Court of Canada; Northern Telecom Ltd. vs. Communications Workers of Canada et al., (1979) 1979 CanLII 3 (SCC), 98 D.L.R. (3d) 1 Supreme Court of Canada, Windsor Airline Limousine Services Limited, [19801 OLRB Rep. Feb. 272 (application for judicial review dismissed (1981) 1980 CanLII 1897 (ON HCJ), 30 O.R. (2d) 732 (Ont. Div. Ct.); Leave to Appeal denied September 15, 1980 (Court of Appeal)), W. Rourke Ltd., [1983] OLRB Rep. Oct. 1711). Both the Courts and labour relations tribunals (including this Board) have applied a functional test in determining whether or not the labour relations in issue in a particular case are within Federal jurisdiction; that is, the question to be answered is: does the work in which the employees in question are engaged form an integral part of, or is it necessarily incidental to, a Federal work, undertaking, or business, as a going concern?

16In that respect, the fact that there is some form of Federal regulation of the employer in question or of its activities may be relevant but will not be determinative. The same is true for activities which the employer is empowered to, but does not, engage in. Rather, it is the activities or work in which the employer and its employees actually engage which will be determinative of a jurisdictional issue (see, for example, Bachmeier Diamond and Percussion Drillings Co. Ltd. vs. Beaver Lodge District Mine, Mill and Smelter Workers, Local Union 913, (1962) 1962 CanLII 309 (SK CA), 35 D.L.R. 241 (Saskatchewan Court of Appeal); Mid Valley Construction Ltd., 74 CLLC ¶16,100, affirmed 74 CLLC ¶14,243, 1974 CanLII 262 (AB SCTD), [1974] 6 WWR 575 (Alberta Supreme Court); Letter Carriers Union of Canada vs. Canadian Union of Postal Workers et al, 1973 CanLII 183 (SCC), [1975] 1 S.C.R. 178, Supreme Court of Canada; Montcalm Construction Inc., supra; Northern Telecom Ltd. vs. Communications Workers of Canada et al, supra; Re Henuset Rentals Ltd. and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 488, 78 CLLC ¶16,137 (Saskatchewan Labour Relations Board), affirmed 1979 CanLII 2170 (SK QB), 96 D.L.R. (3d) 651, 79 CLLC ¶14,194, [1979] 2 WWR 727 (Saskatchewan Queen's Bench), affirmed 1980 CanLII 2289 (SK CA), 119 D.L.R. (3d) 639, [1981] 1 WWR 748 (Saskatchewan Court of Appeal); Manitou Mechanical Limited, [1978] OLRB Rep. July 657; Brotherhood of Railway, Airline and Steamship Clerks, Freighthandlers, Express and Station Employees vs. Canadian Pacific Limited and Marathon Realty Company Limited, [1978] 1 CLRB Rep. 493; Timemack Launch Service Ltd. vs. Canadian Brotherhood of Railway, Transport and General Workers, Local 400, 81 CLLC ¶16,072; Wakeham and Son Ltd., [1981] OLRB Rep. July 1036; Re Burnshire Mobile Maintenance Ltd. and Canada Labour Relations Board, (1985) 1985 CanLII 5507 (FCA), 22 D.L.R. (4th) 748 (Federal Court of Appeal); National Protective Guard Service Company Limited, [1987] OLRB Rep. Feb. 245; Blue Water Bridge Duty Free Shop Inc., [1988] OLRB Rep. Feb. 109; Vibration Assessment Limited, [1989] OLRB Rep. Feb. 223).

17The respondent trade union in this proceeding is the successor to the party which applied for and was certified by this Board in June, 1955 as the bargaining agent for all employees of Oscar Styffe Limited at Port Arthur, save and except foreman, persons above the rank of foreman, office and sales staff, and persons regularly employed for not more than 24 hours per week. It is clear, and it was common ground at the hearing, that Gravel and Lake is the successor employer to Oscar Styffe Limited. More contemporaneously, the respondent trade union applied for conciliation, under the Ontario Labour Relations Act, with respect to the bargaining between it and Gravel and Lake which immediately preceded this litigation. Other than a passing reference to pages 66 and 67 of the text Ontario Labour Relations Board Law and Practice, supra, the respondents offered no authority for the proposition that the labour relations of Gravel and Lake should properly be within Federal jurisdiction. Indeed, they offered the Board so little assistance with respect to this issue in either evidence or argument, that it is difficult to believe that they were really serious about it. In any event, the Board has no cogent evidence before it with respect to activities in which the complainant has been engaged which would support a conclusion that its labour relations are within Federal jurisdiction. Certainly, there is nothing even remotely approaching the extent of the evidence before the Board in Wakeham and Sons Ltd., supra, (a case which dealt with employees of an employer which operated tugs in and out of the port of Hamilton) or in Vibration Assessment Limited, supra. There is really nothing before the Board to rebut the presumption that the labour relations of the complainant are within Provincial jurisdiction.

18The Board therefore determined that the complainant does not operate a business or undertaking within Federal jurisdiction and that the Board therefore has jurisdiction in this proceeding.

19It was the respondents' position that, for purposes of these proceedings, the bargaining unit included only those employees engaged in Gravel and Lake's marine or tugboat operations (the terms will be used interchangeably herein). Because they did not suggest that any persons engaged in the complainant's woods operations are in any other bargaining unit, they must have been asserting that the respondent trade union holds no bargaining rights with respect to the complainant's woods employees.

20The most recent collective agreement in effect between the complainant and the respondent trade union expired on August 31, 1987. Articles 3.01 and 10.10 of that agreement provided that:

Article III - Recognition - Jurisdiction

3.01 (a) The Company recognizes the Union as the sole collective bargaining agent for all of its employees who are engaged in woods and marine operations on the limits, and on the work sites of the Company. For purposes of this article, Company employees shall be all those employed in the job classifications set out in the wage schedule attached to and form a part of this Agreement, including those who are employed on job classifications which may be established and become part of the attached wage schedule during the term of this Agreement.

3.01 (b) The employees of contractors engaged in the woods and marine operations on the limits and/or on the work sites of the Companies shall be considered employees within the terms of this Agreement, save and except the employees of contractors and/or the contractor who are engaged to perform occasional special services not commonly performed by employees covered by the terms of this Agreement, employees of contractors where such contractors are engaged for the purpose of erecting structures and where such a contractor is bound by an Agreement with a Union or Unions affiliated with a central labour body covering such work.

3.01 (c) The Company and the Union agree that an operator who enters in a third party agreement with the Company and the -Ministry of Natural Resources, and produces forest products for the Company or any of the negotiating companies, shall have an agreement with the Union covering such operations.

Article X - Working Conditions

10.10 The Company agrees that should it at any time during the life of this Agreement, adopt or reinstate any classification not mentioned in this Agreement, which falls under the jurisdiction of the Union the rate for all such will be as per Union Agreement with Abitibi-Price Inc. (Lakehead Division).

[emphasis added]

21It is a well established rule of interpretation that where the words of a collective agreement are unambiguous, they must be given their ordinary meaning without recourse to extrinsic evidence. In our view, there is no patent ambiguity in the words of this collective agreement. On its face, this collective agreement covers employees engaged in the complainant's woods operations. The reference to employees engaged in woods operations, third party agreements involving the Ministry of Natural Resources, the production of forest products, the respondent trade union's collective agreement with Abitibi-Price (which is, both patently and on the evidence, a woods agreement) all clearly indicate that. That, however, is not the end of the inquiry. It is permissible to refer to extrinsic evidence to discover whether there is any latent ambiguity and, if there is, to use extrinsic evidence as an aid to interpretation (Leitch Gold Mines Limited et al v. Texas Gulf Sulfur Inc. et al, 1968 CanLII 405 (ON HCJ), [1969] 1 O.R. 469 (High Ct.); Noranda Metal Industries Ltd., Ferguson Division and International Brotherhood of Electrical Workers, Local 2345 et al, (1984) O.R. (2d) 529 (Court of Appeal); Re International Union, United Automobile, Aerospace, and Agricultural Implement Workers, Local 1967 and McDonnell Douglas Canada Ltd., (1984) 1984 CanLII 2055 (ON HCJ), 47 O.R. (2d) 78 (Ont. Div. Ct.); The B rant County Board of Education, [1984] OLRB Rep. Oct. 1349.)

22The evidence before the Board revealed no such latent ambiguity.

23We have already referred (in paragraph 17, above) to a certificate granted by this Board to the Lumber and Sawmill Workers Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America with respect to all employees of Oscar Styffe Limited at Port Arthur, save and except foreman, persons above the rank of foreman, office and sales staff, and persons regularly employed for not more than 24 hours per week. It was common ground that Gravel and Lake is a successor employer to Oscar Styffe Limited, that the respondent IWA - Canada, Local 2693, is a successor trade union to the Lumber and Sawmill Workers Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America, and that at the time the said certificate was issued, the complainant did have a marine operation and some sort of woods operation. There was no suggestion (and there is no evidence) that employees of the complainant engaged in its woods operations were not covered by the certificate. There is some evidence which suggests that the complainant's woods operations were largely curtailed in the 1960's. In any event, there is no evidence that it was carrying on any woods operations at the time of the sale of the complainant to Paul LeCuyer, its present principal.

24The mere fact that an employer suspends or terminates all or part of its operations does not terminate the bargaining rights held by any trade union with respect to any employees engaged therein (and surely no trade union would suggest that it would). Were the bargaining rights held by the respondent trade union with respect to employees engaged in Gravel and Lake's wood operations terminated in any other way? There is no cogent evidence that they were. In that respect, we found the testimony of Fred Miron, president of the respondent trade union and an individual respondent herein, to the effect that they were, to be disingenuous, to say the least. Indeed, we found that Miron was not a credible witness. He was obviously unable to avoid the influence of self-interest. In cross-examination he was often evasive and unresponsive to the questions asked of him. For example, he claimed to be unable to identify documents, including a copy of the respondent trade union's own bylaws, which he should have had no difficulty identifying. Finally, his testimony was inconsistent with both relevant unchallenged documentary evidence and with what was probable in the circumstances. In the result, we give no weight to his testimony where it is not corroborated by other, reliable evidence.

25There is no evidence which suggests that the respondent trade union's bargaining rights for woods employees of what is now Gravel and Lake were terminated or abandoned prior to 1985. The evidence reveals that LeCuyer purchased what is now Gravel and Lake in 1985. Prior to purchasing it, LeCuyer, through his solicitor, advised the respondent trade union, and specifically Miron, that he was interested in making the purchase and that if he did so he intended to reactivate Gravel and Lake's woods operation. He indicated he was aware of the then collective agreement between Gravel and Lake and the respondent trade union and requested that the union confirm this to Abitibi-Price Inc. so that Gravel and Lake could obtain a third party agreement to cut on Abitibi-Price timber limits. LeCuyer also indicated that he would like to separate Gravel and Lake's woods and marine operations into separate, independent, departments. In subsequent correspondence, LeCuyer, again through his solicitor, suggested separate bargaining units for the woods and marine operations.

26In his response, by letter dated June 12, 1985, Miron did not deny that the respondent trade union held bargaining rights with respect to employees of Gravel and Lake engaged in its woods operations. On the contrary, his response suggests that it was the respondent trade union's view that the collective agreement should be "reworded" (something which LeCuyer's solicitor had suggested, in general terms, in his initial correspondence) to address concerns which the trade union had, including, as LeCuyer's solicitor had already suggested, "two separate departments, one for the Tugboat Operators, and one for the Woodlands Operation". That, and the general tenor of Miron's letter, suggests that the respondent trade union believed it had, and intended to enforce, bargaining rights for employees in the complainant's woods operations. Certainly, Miron raised no issue in that respect. We observe also that Miron copied his letter to an F. Adderly of Abitibi-Price. That seems to have been in response to the requests of LeCuyer's solicitor, and also seems to have been accepted by Abitibi-Price, as confirmation of a woods agreement between Gravel and Lake and the respondent trade union because Gravel and Lake was subsequently able to obtain a third party agreement to cut on Abitibi-Price limits.

27There is no cogent evidence to suggest that the respondent trade union ever took issue with that with either Gravel and Lake or Abitibi-Price (we note that the then (and also the current) collective agreement between the respondent trade union and Abitibi-Price contains a provision identical to Article 3.01 set out in paragraph 20 above requiring anyone entering into a third party agreement to produce forest products for Abitibi-Price or any other negotiating company to have a collective agreement with the respondent trade union).

28LeCuyer did in fact purchase what is now Gravel and Lake and did reactivate the woods operation. There is no evidence that there were any amendments to the collective agreement or of any further discussions in that respect. The evidence does suggest, however, that the collective agreement was applied by the parties to the complainant's woods operation. It appears that the complainant did not always comply with the strict terms of the collective agreement and that the respondent trade union did not seek to strictly enforce it. However, we find that what did happen was of greater significance than what did not.

29In or about May, 1987, the- respondent trade union delivered a "seniority" grievance on behalf of Brian Luoma. Although the evidence on the point is sketchy, it suggests that Luoma was primarily employed in the complainant's woods operation. It appears that the grievance was based on the seniority he accumulated in both the marine and woods operation being carried on by Gravel and Lake at the time.

30Even more revealing is a grievance filed by the respondent trade union on or about August 10, 1987 with respect to Gerry Blomquist which was the subject of an arbitration award dated October 30, 1987. There, the respondent trade union grieved that Blomquist should have been allowed to "bump" a less senior employee rather than be laid off. The arbitrator found that Gravel and Lake was engaged in operations other than marine operations and that the collective agreement covered these other activities. Blomquist was found by the arbitrator to have been an employee of the complainant primarily engaged in other than its marine operations; namely, in hauling wood. On the face of the arbitrator's award, it was the union's position before him that the bargaining unit included Gravel and Lake employees engaged in its woods operations and that woods employees were entitled to resort to seniority accumulated in the woods operation for the purpose of exercising bumping rights with respect to positions in the complainant's marine operations. The arbitrator agreed with the trade union and allowed the grievance.

31The arbitration award in the Blomquist grievance, and the exhibits thereto are also revealing for other reasons. In the proceeding before the Board, the respondent trade union, and particularly Miron, denied that it had received any of the seniority lists which Gravel and Lake asserted had been sent to the trade union in accordance with the collective agreement. That position is not consistent with the documentary evidence. In the Blomquist grievance, the arbitrator found that "the union provided uncontradicted evidence that the grievor possessed more seniority than the individual who was operating the tugboat...". Although the arbitrator does not specify what that evidence was, among the exhibits in the arbitration proceeding are two summaries of dues deductions/remittances and two seniority lists. There is nothing to indicate who filed the seniority lists. However, it is obvious that the respondent trade union had at least those two by the time of the grievance arbitration in 1987. Further, both have the date they were received stamped on them. Very few of the documents entered into evidence before the Board in this proceeding were both received by the trade union in the course of its dealings with Gravel and Lake and filed by the respondent trade union. However, two of them, exhibits 3 and 6, were. Both have on them the same kind of date stamp as appears on the seniority lists filed before the arbitrator in the Blomquist arbitration. On the other hand, the date stamp used by Gravel and Lake at the time, as it appears on other documents before the Board, was quite different. Consequently, we conclude that the respondent trade union received the seniority lists filed in the Blomquist grievance arbitration proceeding in the ordinary course of business. Further, although Miron claimed to be unable to identify the numerous dues deductions/remittances documents which LeCuyer testified had been sent to the respondent trade union, the trade union's own correspondence with Gravel and Lake with respect to dues remittances confirms that these, which include the two which were made exhibits in the Blomquist arbitration proceeding, were received by the respondent trade union in the ordinary course of business. Having regard to all of the evidence, we are also satisfied that LeCuyer did send the various Gravel and Lake seniority lists to the respondent trade union as he testified he did and that the trade union did receive them.

32We note that there was a suggestion that the monies received by the respondent trade union in that respect were some sort of "working dues" rather than monies payable as union dues under the collective agreement. However, although the trade union's own correspondence sometimes refers to the monies it received from Gravel and Lake in that respect as "working dues", it was generally simply referred to as "union dues remittance". Further, we are unable to understand how the trade union could be entitled to any such dues, which it kept and acknowledged receipt of, except pursuant to the terms of a collective agreement. We are unaware of any other basis upon which it could require Gravel and Lake, or any other employer, to deduct what would amount to a working permit or license fee from its employees.

33We do wish to note that Gravel and Lake's seniority lists and dues remittance documentation is not accurate in its detail (and we will have more to say about this below). However, in our view, it does accurately portray the general extent and nature of the company's operations.

34The number of employees of Gravel and Lake for which it made union dues- remittances increased from a low of 5 in December 1985 to a high of 33 in August 1986. Between September 1986 and April 1989 when the strike began, Gravel and Lake remitted monthly union dues with respect to an average of some 18 employees. In none of those 32 months did it remit for fewer than 9 individuals and for only 7 of them did it remit for fewer than 15. In addition to the other seniority lists which we are satisfied the respondent trade union received between 1986 and 1988, each remittance was accompanied by a list of the persons with respect to whom the remittance was being made. Having regard to the nature of Gravel and Lake's marine operation and the presence of a union steward on the tugs, we find it inconceivable that the respondent trade union could reasonably have believed that all of these individuals were employed in Gravel and Lake's marine operations. The two grievances referred to above, and particularly the Blomquist grievance, confirm that it did not believe that, and further that it was well aware that Gravel and Lake had a woods operation.

35Finally, the respondent, having given the complainant notice, by letter dated June 15, 1987, that it wished to bargain a new collective agreement, applied for conciliation. In its application, dated January 20, 1989, it identified the nature of the complainant's business as "industrial operations" and the nature of the bargaining unit as "all employees engaged on the work sites of the company". This too suggests that the respondent was aware that the complainant had other than marine operations and that it did not (then) take the position that employees in other than the marine operation were not included in the bargaining unit it represented.

36The respondent trade union's own actions belie its assertion that the bargaining unit in this case is limited to employees of Gravel and Lake engaged in its marine or tugboat operation. There is simply no cogent evidence which suggests that there is any latent ambiguity in the words of the most recently expired collective agreement. On the contrary, the evidence confirms that the respondent trade union's bargaining rights for Gravel and Lake's woods employees have never been abandoned or otherwise terminated, and that the words of the collective agreement, as set out in paragraph 20 above, accurately describe the bargaining unit as consisting of employees in both the marine and woods operations carried on by the complainant, which employees include Gravel and Lake's own direct employees and employees of contractors engaged by Gravel and Lake in those operations. Accordingly, the Board found (in paragraph 1(b) of its July 9, 1990 decision - see paragraphs, above) that the affected bargaining unit, within the meaning of section 40 of the Labour Relations Act and for purposes of the complaint in Board File No. 2034-89-U, is all employees of the complainant who are engaged in woods and marine operations on the limits and on the work sites of the complainant, including all employees of the complainant in both its marine and woods operations, and all employees of contractors engaged by the complainant to perform work in its woods and marine operations, save and except the employees of contractors who are engaged to perform occasional special services not commonly performed by employees of the complainant and employees of contractors engaged for the purpose of erecting structures for whom another trade union has bargaining rights.

37Having determined the description of the "affected bargaining unit" within the meaning of section 40, the Board then considered which individuals were employees in it for purposes of the vote which was held on November 8,1989. A total of 94 ballots were cast and counted. Of these, 77 were cast by persons collectively referred to throughout the proceedings as the "Abitibi employees". As this appellation suggests, it was common ground that these 77 persons were, at all material times, employees of Abitibi-Price Inc.. The respondents maintained their position that these persons were directly affected and that they were therefore entitled to vote in the vote held on November 8, 1989 until final argument. The respondents never did make any argument to that effect. Indeed, they specifically indicated (in final argument) they were not pursuing the point. In any event, there is not a scintilla of evidence before the Board which suggest that there is any employment connection between the 77 Abitibi employees and Gravel and Lake. It is absolutely clear that they were not "employees in the affected bargaining unit" within the meaning of section 40 of the Act.

38Of the remaining 17 persons who cast ballots, the right to vote of only 2, Larry Duhaime and Roland Frayne, was originally unchallenged. Through the course of the proceeding,

it was eventually agreed that Robert Casson was also entitled to vote, and that Rejean LaFreniere,

Manuel Alves, David Jaggard, Prosper Brizzard, and Richard Brizzard were not entitled to vote.

This left in dispute the right to vote of 10 persons who had cast ballots. Of these 9 (that is, all but Don McLean) were challenged by the respondents. Gravel and Lake challenged McLean's right to vote.

39In their argument, the respondents submitted that to be entitled to vote, the persons in dispute had to demonstrate a connection with the workplace and had to be "employees" rather than independent contractors. They urged the Board to apply the principles enunciated in Atway Transport Inc., [1989] OLRB Rep. June 540 and Algonquin Tavern, [1981] OLRB Rep. Aug. 1057 with respect to the latter question. The respondents submitted that some of the documentary evidence put before the Board by Gravel and Lake had been contrived and that, taken as a whole, Gravel and Lake's documentary evidence was generally unreliable. The respondents also made much of the fact that Gravel and Lake had caused the names of quite a few more persons to be placed on the voters' list than it eventually argued were entitled to vote and of evidence that Gravel and Lake had failed to apply the terms of the collective agreement to the persons in dispute which it now alleged were entitled to vote.

40The Board has not previously considered how voter eligibility in section 40 votes should be determined. Section 40 itself stipulates that a vote conducted under it will be of employees in the affected bargaining unit. The rule usually applied by the Board to determine voter eligibility is that all persons employed in the voting constituency (in this case, in the bargaining unit) on the date to vote is ordered (or on the terminal date, in the case of a pre-hearing representation vote), are eligible to vote. If no strike or lock-out is ongoing at the time that a section 40 vote is requested, directed and conducted, it seems likely that that rule would be equally useful in resolving any voter eligibility questions which might arise. However, we are not satisfied that the rule is equally applicable where, as in this case, there is an ongoing strike or lock-out. In a strike or lock-out situation there may be no employees at work when such a vote is requested, directed or conducted and there may therefor be no employees at work in the bargaining unit. Or, because an employer is entitled to try to carry on its business during a strike or lock-out (and because strikes sometimes receive less than complete support from employees), issues may arise as to whether persons who work during a strike or lock-out are entitled to work, particularly if they are "replacement workers" in the sense that they were not employed prior to the strike or lock-out. Although voter eligibility was not an issue there, the Board touched on this potential problem in Canada Cement Lafarge Ltd., [1980] OLRB Rep. Nov. 1583 ("Canada Cement I") at paragraph 9:

9. A similar but much more difficult situation may arise where the outcome of the vote has been clearly influenced by the segregated ballots cast by a large number of strike replacement employees. If the vast majority of the employees in the bargaining unit who are employed at the commencement of the strike have, however, voted to reject the last offer and to continue their strike, it would be counter-intuitive, in an industrial relations sense, to conclude that the trade union is automatically bound by the wishes of employees it does not really represent. Indeed, the employer's offer in such circumstances might even contain terms which are very damaging to the trade union as an entity, i.e. See Wilson Automotive (Belleville) Ltd., [1980] OLRB Rep. July 1136 where an employer's offer contained a demand that the trade union compensate it for losses sustained during a strike. Whether the trade union is obligated to submit to the balloting in these kinds of situations may well depend on the duration of the strike at the time of the vote and other important industrial relations facts. Quite different approaches may also be needed where the employer and trade union have agreed at the outset of negotiations to multi-plant negotiations or other format conditions of bargaining. All of the above, therefore, are useful examples by which to illustrate that a collective agreement need not automatically follow an affirmative vote in a bargaining unit to accept an offer and that section 140] must be applied in light of accepted principles of collective bargaining. As will be elaborated below, the section is intended to end industrial conflict and cannot be used as a vehicle to achieve some destructive aim wholly inconsistent with the overriding purposes of the statute.

41The potentially thorny issue of replacement workers did not arise in this case. Having regard to the evidence before the Board, and the manner in which the parties approached the issue of voter eligibility, we determined that it was appropriate to limit the eligibility to vote to persons who were employees in the bargaining unit at the time the strike began. In our view, it was appropriate that such persons should have the right to vote, whether or not they continued to actually work for Gravel and Lake after the strike began, unless it was established that they had severed their connection with the workplace prior to the date on which the vote was conducted.

42In applying this test, we found that Gravel and Lake's viva voce evidence did little to assist us in determining if the persons in dispute were entitled to vote. LeCuyer's testimony in that respect was, we found, generally rather vague or symptomatic of an inability to avoid the influence of self-interest. Similarly, whatever value Gravel and Lake's documents may have to it in the operation of its business, we concluded that those such documents which were placed into evidence before the Board were not a reliable indicator of who was or was not an employee in the bargaining unit for purposes of this proceeding. We are not prepared to find that the documents were contrived or fabricated as suggested by the respondents. However, LeCuyer's own testimony, and the testimony of the individuals whose employee status is in dispute, reveals that they are inaccurate or incomplete in a sufficient number of instances to cause us to doubt their reliability. For example, Gravel and Lake's documents are sadly lacking in information with respect to the employees of contractors engaged by it in its woods operation (which employees were, we have found, employees in the bargaining unit for purposes of this proceeding). Gravel and Lake did not always keep track of when individuals were "hired" or "left", the payroll documents fail to accurately reflect either the hours that the persons to whom they relate actually work, the manner in which they were paid and, in some cases, the days they worked. The documents do not reveal all of the persons who were employees (for example, the persons engaged by Darrell Westover in the fall of 1989), LeCuyer admitted to inaccuracies in the dues remittances with respect to Nordstrom, Jacobson and Dorothy Westover, and in the seniority lists both in terms of who is shown to be on them and the number of days of seniority. These examples are not exhaustive but do serve to illustrate why we found the documents to be unreliable as evidence of which persons were employees in the bargaining unit for the purposes of this proceeding.

43We did not understand why it should be significant that Gravel and Lake did not argue that as many persons were entitled to vote as it originally had placed on the voters' list. The respondents' argument in that respect ignores that what was important in this case was the eligibility to vote of those persons who actually cast ballots. It was on that basis that the matter was litigated. The question of which persons who did not cast ballots were eligible to do so was not relevant to any issue before the Board in this proceeding and the respondents' position in that respect was very much a red herring.

44With respect to the respondents' assertion that the manner in which Gravel and Lake applied the collective agreement indicates which persons were and were not employees, we find it sufficient to reiterate our view that what did happen in that respect is more significant than what did not.

45The evidence before the Board reveals that Don McLean has not worked since June 17, 1988 when he was injured in the course of his employment with Gravel and Lake. He is receiving a permanent disability pension from the Workers' Compensation Board. There was no indication that he will ever return to work for Gravel and Lake. On the contrary, the evidence indicates that there is no expectation that he will ever return to work for Gravel and Lake and that he has been looking for other employment which offers work which he can perform notwithstanding his disability. Accordingly, we were satisfied that McLean had no real connection with the workplace either at the time the strike began or on the day the vote was conducted and was therefor not an employee in the bargaining unit for purposes of the vote held under section 40 herein.

46For the other 9 individuals, the real question was whether they were "employees" or independent contractors. Section 1(1)(i) of the Act defines "employee" as including dependent contractors. Pursuant to section 1(1)(h), the term "dependent contractor":

(h) 'dependent contractor" means a person, whether or not employed under a contract of employment, and whether or not furnishing his own tools, vehicles, equipment, machinery, material, or any other thing, who performs work or services for another person for compensation or reward on such terms and conditions that he is in a position of economic dependence upon, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor;

In Airline Limousine, [1988] OLRB Rep. March 225, the Board reviewed the development and application of that term. As that decision illustrates, it can be quite difficult to distinguish between "dependent" and "independent" contractors. More recently the Board reviewed its approach to making that distinction in Atway Transport Inc., supra.

47Manfred Krause began an association with Gravel and Lake during the summer of 1986. With the exception of a few months in the fall of 1988 when he was employed by Gravel and Lake as a deck hand on one of its tugs, he was engaged exclusively in Gravel and Lakes woods operation. Manfred Krause had typical employment deductions made from what he earned as a result of being engaged in Gravel and Lake's woods operation. This, and some scarifying work he did using a Gravel and Lake machine suggests that he was an employee. He did deduct the expenses associated with running his skidder in Gravel and Lake's woods operation for income tax purposes but without more evidence on the point, we cannot say whether these are more like employment or business expenses. Consequently, that is a neutral factor. On the other hand, although Manfred Krause did not work, or even seek work, elsewhere, he was free to do so while engaged by Gravel and Lake. Also, although he is directed to the work which needs to be done, it is up to him whether or not he does it and, once he chooses to, when and how he does it is within his discretion to determine. Finally, although he received bi-weekly advances, he was paid on a piece work basis at a rate he negotiated with Gravel and Lake and which included some consideration for the use of his skidder. In that respect, Manfred Krause also testified that he could have "rented" a Gravel and Lake skidder if he'd wished. We found Manfred Krause's case to be close to the line but, on balance, we were satisfied that Manfred Krause more closely resembles an independent contractor than an employee.

48Darrell Westover has been engaged in Gravel and Lake's woods operation since 1985 or 1986. In April, 1989, he was engaged operating his own skidder. He had purchased that machine in 1988. Prior to that he had operated a Gravel and Lake skidder and had worked as a deck hand on a Gravel and Lake tug on an occasional basis. What was significant for purposes of this proceeding, however, was what he did in 1989. Gravel and Lake was Darrell Westover's sole source of income in 1989. However, he was paid on a piece work basis at a rate which included payment by Gravel and Lake for the use of his skidder. He was responsible for and paid for all the maintenance and upkeep of his machine. None of the usual employment deductions were made from the payments he received from Gravel and Lake. He has his own employer's Workers' Compensation Board number for employer remittance purposes. In 1989, he did some road work relating to Gravel and Lake's operations. He neither received nor expected any payment for this. According to his testimony, he did it for Gravel and Lake and for himself, which we take to be an indication that he was attempting to enhance his "chance of profit" or reduce his "risk of loss". Finally, he hired and directly paid another individual (Gord Wilson) without any consultation with or input from Gravel and Lake to assist him in work he was performing for Gravel and Lake. On the evidence before the Board, we were satisfied that Darrell Westover was an independent contractor rather than an employee.

49Larry Jaggard has had an association with Gravel and Lake for a number of years. Although he sometimes was paid at an hourly rate from which the usual employment deductions were made, he was usually paid on a piece work basis by Gravel and Lake without having the usual employment deductions made. Larry Jaggard has contracted his services to companies other than Gravel and Lake and hired Raynard Jacobson to work for him in the past. He has carried on business under the name "Larry Jaggard Trucking" and, since October 1989, under the firm name and style of "Tamaradeb Timber Inc.". We were satisfied that Larry Jaggard was more like an independent contractor than an employee.

50Robert Krause was hired by Gravel and Lake on December 3, 1988. He was paid an hourly wage and had the usual employment deductions made from his wages. He owns a skidder. When he uses it while working for Gravel and Lake he is paid a fee, by separate cheque, for it. At other times he operates Gravel and Lake machines. He is directed when as well as where to work by Gravel and Lake. From time to time, he has worked on Gravel and Lake's tugs. Like his father Manfred, we found Robert Krause to be close to the line. On balance, however, we were satisfied that the nexus between him and Gravel and Lake was more like an employment relationship than not. Accordingly, we found Robert Krause to be an employee and further that he was an employee in the bargaining unit for purposes of the section 40 vote herein.

51At the time he testified before the Labour Relations Officer, Aulius Tiitto was self-employed and was working in partnership with his brother on a district cutting license which has nothing to do with Gravel and Lake. From January 1989 until the strike began, however, he worked for Gravel and Lake. He was paid at an hourly rate and was told what to do, and when and where to do it by Gravel and Lake. He used Gravel and Lake equipment both on the job and to get to and from the job site. The usual employment deductions were made from his wages. In our view, Aulius Tiitto was quite clearly an employee of Gravel and Lake. Although he is currently self-employed, his partnership with his brother existed while he was an employee of Gravel and Lake. He testified that he has not decided to not return to Gravel and Lake at the conclusion of the strike and there was no suggestion in the evidence that the employment relationship between him and Gravel and Lake has been severed such that it would be inappropriate to find him eligible to vote. In the result, we were satisfied that Aulius Tiitto was an employee in the bargaining unit for purposes of the section 40 vote herein.

52On the evidence before the Board, Raynard Jacobson, Bruce Nordstrom and Dorothy Westover were clearly employees of David Jaggard, who carries on business under the firm name and style of "Towanda Timber Limited", in March and April, 1989, until the strike began. They were paid on either a piece work or hourly basis (depending on what they were doing) had the usual employment deductions taken from their wages, and used Towanda Timber Limited's equipment. In addition, Towanda Timber made remittances under the Workers' Compensation Act with respect to them. They were all employed by Towanda Timber with respect to work being performed for Gravel and Lake. In our view, what occurred since the strike began on April 24, 1989 was insufficient to affect their status as employees in the bargaining unit for purposes of the section 40 vote. We were satisfied that Raynard Jacobson, Bruce Nordstrom, and Dorothy Westover were all employees of a contractor of Gravel and Lake and were, as such, employees in the bargaining unit herein (see paragraphs 5 and 36, above). Consequently, they were all entitled to vote.

53Having determined the bargaining unit and the eligibility to vote of those persons who cast ballots, the Board then turned to determine the effect, if any, of the section 40 vote.

54A total of 94 ballots were cast (see paragraphs 37 and 38, above). Of these, 77 were cast by Abitibi employees who were not eligible to do so. Of the 17 other ballots, 2 were cast by Duhaime and Frayne against accepting Gravel and Lake's last offer, whose eligibility to vote was never in dispute. Of the remaining 15 ballots, all cast by persons whose eligibility to vote was in dispute, 14 were cast in favour of accepting the last offer. Since none of these latter 15 ballots were segregated, it was not possible to precisely determine the result of the vote. However, it was possible to determine that a maximum of three ballots (including those cast by Duhaime and Frayne) had been marked for rejection of Gravel and Lake's final offer, leaving a minimum of five ballots marked in favour of accepting it. Accordingly, the employees in the affected bargaining unit had voted to accept Gravel and Lake's last offer.

55What is the effect of this result? As we observed in our March 5,1990 decision herein (reported [1990] OLRB Rep. March 262), section 40 does not prescribe the consequences of a vote under it. More specifically, it does not prescribe the result of a vote under section 40 in which the majority of the ballots cast are marked in favour of accepting "the offer of the employer last received by the trade union...". In determining what result should flow from a last offer vote, it is important to remember that section 40 provides for an exception to the rule that an employer cannot bargain directly with employees in a bargaining unit but must bargain only with a trade union which is their exclusive bargaining agent. As the Board concluded in Canada Cement I and Canada Cement Lafarge Limited, [1981] OLRB Rep. Dec. 1722 ("Canada Cement Ir'), section 40 provides an extraordinary process which has been injected into the normal collective bargaining process. Because the legislation does not stipulate the consequences of a vote conducted under it, it is consistent with what we perceive to be the legislative intent (namely; to reduce the potential for industrial conflict by introducing a safety valve for the tension which often accompanies traditional collective bargaining - see Wilson Automotive (Belleville) Ltd., [1980] OLRB Rep. Sept. 1337 and Canada Cement I at paragraphs 8-14) to consider sections 15 and 89 to be the appropriate vehicles for the enforcement of section 40. Accordingly, and for the reasons canvassed in Canada Cement I and II, the effect of a section 40 vote will depend on the circumstances, which circumstances it is appropriate to examine in the context of the obligation, of both employer and trade union, to bargain in good faith and to make every reasonable effort to make a collective agreement.

56The complaint in Board File No. 2034-89-U was styled by Gravel and Lake as an application for a declaration that the strike activity being engaged in by the respondents was unlawful. The essence of the pleading by Gravel and Lake is that the employees in the bargaining unit affected by Gravel and Lake's final offer had voted to accept it, and that by refusing to sign a collective agreement reflecting that final offer and continuing with the strike activity they had begun on or about April 24, 1989, the respondents were engaged in an unlawful strike activity contrary to the Labour Relations Act. In order to arrive at the conclusion pleaded by Gravel and Lake, however, it would, having regard to the Board's analysis of section 40 in Canada Cement I and II (with which we agree and of which the parties were or ought to have been aware), first be necessary to find that the respondents, and specifically the respondent trade union, had breached their obligation, under section 15 of the Act, to bargain in good faith, by refusing to execute a collective agreement reflecting the "last offer" voted on. But for the coming into effect of a collective agreement, the strike activity being engaged in by the respondents could not be unlawful. Further, we were satisfied that the matter was litigated by all parties as though it had been specifically pleaded as a "failure to bargain in good faith" complaint. At paragraphs 27 and 28 of Canada Cement II, the Board completed the analysis of section 40 it had begun in Canada Cement I as follows:

27. . . section 40 provides no explicit guidance as to how the unequivocal results of such balloting are to be enforced. This latter silence was the focus of the Board's earlier decision wherein it declined to hold that a section 40 vote had no binding effect or that the statute contained no enforcement mechanism. In order to make sense of and give practical effect to the new provision, the Board decided sections 15 and 89 were convenient vehicles for the enforcement of section 40 and consistent with legislative intent. This decision was recently upheld by the Supreme Court of Ontario in a unanimous decision [reported at 82 CLLC 26 14,152, (Ont. Div. Ct.)]. This initial decision having been made, would it be equally sensible and practical to assess damages against a party who has, in good faith and on reasonable grounds, unsuccessfully contested the results of a section 40 vote on one of the foreseeable bases set out in the Board's earlier decision? We think not. When considering the silence of section 40 on the question of enforcement~ we thought it inconceivable that the Legislature wished the intervention of balloting without intending that a vote in favour of accepting the employer's last offer be binding. We think it equally inconceivable that the Legislature would have intended substantial compensatory awards to be issued in response to disputes over the usual kind of issues that can arise from balloting procedures. For example, the final results of balloting could hang on the Board's disposition of an employer's objection to the entitlement of certain persons to vote. In the context of strikes, allegations that employees working elsewhere during the strike have severed their employment are not unusual. See Brooker Trade Bindery Ltd., [1973] OLRB Rep. Dec. 612. If the employer was successful before the Board and the Board therefore concluded that the trade union was obligated to submit to the results of the vote, would the added remedy of substantial compensation capture the Legislature's intention in enacting section 40? To ask the question is to answer it in our view. The purpose of section 40 is to end a collective bargaining impasse where this is in accord with the wishes of the majority of the bargaining unit. Where a party in good faith and on reasonable grounds challenges the result of a vote as an accurate representation of the majority's wishes, we do not see how the purpose of section 40 would be served by causing compensation to run before those challenges have been dealt with and the majority's wishes authoritatively identified. Indeed, awarding compensation in the face of proper objections would more likely inflame relations between the parties and create unwarranted and distracting employee anxiety over last offer balloting. Employees should know that such balloting will be carried out fairly and correctly before any issue of compensatory relief for noncompliance arises and this employee state of mind is also in the interest of employers who elect to make use of the section.

28. We point out that the two sections, sections 15 and 40, are functionally inter-related and the precise effect of section 40 may have to await the Board's intervention where challenges arise out of the balloting. This is to be contrasted with the typical section 15 situation where the respondent trade union or employer must only contend with its obligations under section 15 and harmonize its bargaining objectives and tactics with the requirements of that sole provision. The position of a trade union objecting in good faith and reasonably to the validity of a section 40 vote is more closely like that of an employer who contests the validity of a representation vote conducted under section 7 of the statute. Fortunately, in representation matters there is no immediate obligation to recognize the trade union following the vote. Instead, the Board first entertains the employer's objections and then, if dismissed, a certificate issues which then triggers the bargaining duty. However, we see no reason why a similar approach cannot be fashioned in respect of good faith and reasonable objections to section 40 votes by exercising our discretion under section 89 not to award compensation until after the Board's decision dealing with the objections. We also see no reason why the Board could not expedite such hearings in order to facilitate industrial peace and minimize any potential economic loss. Last offer vote balloting may raise very significant challenges to voting entitlement; the conduct of the parties; or pertain to the very degree of voter support necessary to trigger a binding result. In discussing these possible complexities, the Board stated in its earlier decision "that section 14 (now section 15) must be applied in light of accepted principles of collective bargaining". We know of no other section of the Act that is so closely intertwined with section 15 while at the same time potentially requiring the Board's intervention to dispose of very proper objections that may arise out of the actual administration of the section. Clearly, the situation in this case is distinguishable from those found in Grey-Owen Sound Health Unit, De Vilbis and Fotomat, and relied on by CCL, supra. We also point out that the employees were engaged in a lawful strike with all the "emotional baggage" that conflict of this kind entails. It seems to this Board unrealistic to require a trade union, having raised a proper objection to the vote's result, to end an otherwise lawful strike for the period of time required to process the objection before the Board. It is our view that the Legislature intended this intervention into collective bargaining to be accomplished with as little disruption as possible and this is the spirit of the Board's approach herein. It is, therefore, the Board's view that while a refusal to accept the results of a section 40 vote immediately triggers the bargaining duty, refusals made in good faith and on reasonable grounds will not be met by the automatic imposition of monetary orders under section 89 running from the date of the vote if and when the underlying objections are dismissed. Following the dismissal and the Board's decision, the full remedial force of section 89 will respond to continued refusals. We wish to stress that objections must have a reasonable basis to them to activate the Board's discretion. Only by so requiring can we balance the competing interests of employers and trade unions in these matters.

[emphasis added]

57As the Board said in Canada Cement II, the purpose of section 40 is to provide an opportunity to end the collective bargaining impasse where the offer last made by the employer to the trade union is acceptable to the majority of employees in the bargaining unit. It is open to either party to challenge, on reasonable grounds, the results of such a vote. And, having made such a challenge, it would be unrealistic to expect an employer or trade union to end an otherwise lawful lock-out or strike, as the case may be.

58If we discount the respondents' frivolous suggestion that the 77 Abitibi employees were entitled to vote, the apparent result of the vote was 14 in favour of and 3 against accepting Gravel and Lake's final offer. The respondent challenged the right to vote of 14 of those employees. It eventually withdrew one of those challenges, and was successful in 8 others (5 challenges having been agreed to by the other parties, and 3 having been sustained by the Board). On its face, this may tend to suggest that the respondents had reasonable grounds for their challenges, and therefor reasonable grounds for refusing to accept the apparent results of the vote. However, closer scrutiny yields a different result.

59The respondents' primary position throughout the proceeding was that the respondent trade union did not represent in bargaining those employees of Gravel and Lake engaged in Gravel and Lake's woods operation. Only in the alternative, did they argue that anyone engaged in Gravel and Lake's woods operation was not an employee in affected bargaining unit in any event. We are satisfied, on the basis of the evidence before the Board, that the respondent trade union would not have signed a collective agreement reflecting the offer voted on even if there had been no dispute regarding the employee status of the persons who cast ballots. Ostensibly, this refusal would have been based, as in fact it was, on an assertion that it represented only employees in Gravel and Lake's marine operation, both of which employees had voted against accepting Gravel and Lake's final offer. On the evidence before the Board, there is no objective merit whatsoever in that assertion. That, together with a frivolous assertion that the 77 Abitibi employees were entitled to vote (which assertion was not withdrawn until very late in the day), and the evidence before the Board with respect to the approach taken by the respondent trade union to collective bargaining with Gravel and Lake, suggests that it had no intention of entering into any collective agreement with the complainant, whatever the outcome of the vote~ unless it obtained a volume restriction in its separate collective agreement to cover the woods employees.

60In Canada Cement I, the Board stated that:

23. It is also important to stress that the employer has an ongoing duty under section [15] regardless of section [40]. The decision to place a last offer before bargaining unit employees under section [40] arises because trade union representatives have refused to do so. Their refusal to do so will have likely been based, in part, on the circumstances then existing and the employer's rationale in making the offer. Where the rationale of the employer has undergone a fundamental change because of significant and related changes in circumstances since the offer was made to the trade union, an employer may be obligated under section [15] to place such new information and reasoning before the trade union prior either to requesting or, at least, prior to participating in a last offer vote under section [40]. Section [40] should be limited to those situations where the trade union has refused to place a last offer before the membership after having been acquainted with all of the significant reasons for its acceptance known by the employer. Where important changes in these reasons have occurred, the trade union may be willing to review its position making a section [40] vote unnecessary. Candor in this respect will also minimize suspicion over the bona fides of the employer where these significant new reasons are laid before the employees should the union continue in its refusal to submit the offer to the employees for their consideration.

The respondents argued that, in this case, Gravel and Lake had failed to properly present and discuss the offer with respect to which it requested the section 40 vote herein to the respondent trade union.

61Certainly, the parties were under an ongoing obligation under section 15 to bargain in good faith and make every reasonable effort to make a collective agreement. But given the extraordinary nature of section 40 we do not view that obligation as extending so far as to require an employer requesting such a vote to discuss any new information or reasoning it might have with the trade union prior to requesting or participating in a vote under section 40 in every case. What an employer is required to do in that respect will depend on the circumstances. In this case, we are satisfied that it would have been completely pointless for Gravel and Lake to have attempted any such discussion. The respondent trade union had made it abundantly clear that it would not bargain further unless Gravel and Lake acceded to its demand that there be a separate collective agreement for Gravel and Lake's woods employees which contained a restriction on the volume of wood which Gravel and Lake could cut. All indications are that it was not prepared to negotiate the matter further. Nor was there anything new to discuss.

62Further, the evidence also reveals that, by letter dated October 3, 1989, Gravel and Lake did send the "last offer" which was voted on to the respondent trade union, to the attention of the respondent Miron. In the same letter, Gravel and Lake warned that if the offer was not accepted, it would apply for a section 40 vote which it subsequently did. At no time after it received that letter from Gravel and Lake, did the respondent trade union seek to engage in any discussion with respect to the offer contained in it.

63We are therefor satisfied, that there is no merit to the respondents' submission that Gravel and Lake failed to comply with any formal requirements of section 40.

64In the result, we were satisfied that the respondents and specifically the respondent trade union had no intention of entering into a collective agreement with Gravel and Lake which did not meet its demands with respect to the company's woods operation regardless of the outcome of a vote conducted under section 40. We were also satisfied that the respondent trade union had failed to offer any reasonable excuse for its failure to execute a collective agreement reflecting the last offer which was the subject of the section 40 vote herein. Finally, we were satisfied that, in the circumstances, this refusal constituted a breach of section 15 of the Labour Relations Act by the respondent trade union. Because the section 15 obligation to bargaining in good faith is an obligation of the parties; that is, the employer and the trade union, the individual respondents could not be in breach of it.

65Having found a breach of section 15 as aforesaid, the Board considered it appropriate to direct the respondent trade union to submit to the results of the section 40 vote and to execute a collective agreement reflecting the offer of Gravel and Lake which was the subject of that vote. We note that the respondents did not suggest that there was any doubt with respect to the terms and conditions of such a collective agreement. Consequently, all that was left was the respondent trade union refusing to formally execute it (see Canada Cement I and II; and see also Treco Machine and Tool Limited, [1982] OLRB Rep. Dec. 1954; Fotomat Canada Limited, [1981] OLRB Rep. Feb. 145; Wilson Automotive (Belleville), supra).

66Did the respondent trade union's breach of section 15 and the individual respondents' role therein make the strike activity they were involved in unlawful? We did not think so. The Labour Relations Act recognizes the limited right to strike. There is no right to strike during the term of a collective agreement or before the conciliation process is exhausted (section 72). It is possible that a breach of the Labour Relations Act will make an otherwise lawful strike (or lockout) unlawful. Whether and when a breach of the Act will produce such a result will depend on the circumstances of the situation taken as a whole. It is conceivable that there are circumstances in which a breach of section 15 of the Act could effect such a result. However, it certainly will not necessarily do so, and, in our view, the Board should not be quick to conclude that it has.

67In our view, the respondent trade union's breach of section 15 did not warrant a finding that it, or any of the other respondents had engaged in unlawful strike activity. The purpose of the unlawful strike/lock-out remedies in the Act is not to punish. It is to steer parties which have strayed back to an appropriate labour relations course and to put an end to any unlawful conduct in that respect. It will therefor not generally be appropriate to use the unlawful strike/lock-out remedies in the Act when there are other more appropriate and equally effective labour relations remedies available. Having regard to the circumstances of this case including the existence of a very real issue with respect to which voters were employees in the bargaining unit (however incidental that was to the respondent trade union's real position), we did not find it appropriate, in the exercise of our discretion under section 92 of the Act, to grant any unlawful strike declaration or direction.

68For these reasons, the Board made the findings and declarations and issued the directions set out in its July 9, 1990 decision herein.