[1990] OLRB Rep. April 453

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. Rozenbeng 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, Mary Eberts and Mark Hemingway for the respondents.

DECISION OF THE BOARD; April 11, 1990

1The name of Mark Hemingway is added to the list of appearances on behalf of the respondents in these matters (see decisions dated February 23, 1990, as amended to add appearances by decision dated March 9, 1990).

2The decisions in the above three cases were released February 23, 1990. Shortly afterwards, in a letter dated March 6, 1990, counsel for the respondents requested a re-attendance before the panel with respect to certain issues. Subsequently, counsel for the complainant filed submissions on the issues in dispute (letter dated March 9, 1990) and counsel for the respondents filed a reply to those submissions (letter dated March 28, 1990). We are satisfied that at this time it is appropriate to deal with these issues on the basis of the written submissions of counsel.

3After the conclusion of the original hearing, but prior to the release of the decisions, counsel for the respondents sent to the Board certain correspondence and documents, asking that the panel consider them in reaching its decisions. In her decision on the three matters before her, concurred in by the other members of the panel, the chair of the panel explained that she did not take the correspondence into account in reaching her decision, indicating that "[m]y 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". (See decisions dated February 23, 1990.) She further commented that "[a] party is, of course, free to seek to raise what it considers relevant matters following the release of a decision". As is normal practice, the decision of February 23rd ended with the following paragraph: "The Board remains seized to deal with any matters arising out of the implementation of remedies or calculation of damages".

4Two of the three issues raised by counsel in her letter of March 6th relate to the subject of the correspondence sent to the Board between the end of the hearing and release of the decisions by the Board. The complainant herein had brought proceedings against the respondents under the Employment Standards Act relating to certain of the events which had also been before the Board. Counsel points out that the material "has a clear bearing on one of the matters left to be worked out, namely the determination of the amount of the damages for individual employees. . ." From her letter of March 28th, it appears that counsel's more specific concern is that "the appropriate relationship between its order or damages on a continuing basis and the Employment Standards order -- which presupposes a severance of the employment relationship -- is critical to any resolution of this matter". The second, related, issue raised in the March 6th letter "is the calculation of compensation for monetary loss" since "[i]t would assist in this process to have clarification of the Board's views on the interrelation, if any, between its proceedings and the Employment Standards Act proceedings and order".

5Counsel for the complainant advised that the complainant was calculating the damages it thought it was entitled to be paid and that in doing so, "it will take into account Employment Standards considerations", and then meet with the respondents to explain its calculations. Counsel took the position that the request of counsel for the respondents was premature.

6In directing the payment of compensation, the chair of the panel, the other members concurring, related the payment to the "monetary losses arising reasonably out of the employer's, Citcor's and Mrs. Citron's violations of the Act" and further directed that "in determining the amounts payable, the parties are to apply the principle of mitigation of damages". The relationship between the Employment Standards award and the Board's award falls within those general principles which always have to be addressed by parties in determining compensation.

7We agree that the request to decide the impact of the Employment Standards award is premature. The Board generally separates the issues of liability and quantum and did so in these cases. It found that the respondents had committed certain violations and directed certain remedies, but left to the parties to work out in the first instance the implementation of the remedies, particularly compensation. Once a party is found to be liable, quite often it is not necessary for the Board to deal with quantum because the parties are able to settle the matter between themselves. That is consistent with the general view that where the parties are able to settle matters to their own satisfaction, it is preferable that they do so. There has been no opportunity here for the parties to do so. The parties have not met to discuss the question of compensation; there is no evidence that there is any disagreement about the effect or role of the Employment Standards award among the parties. It is not entirely outside the realm of possibility that they are able to reach agreement on these matters. On the other hand, if they do not agree after making a serious attempt to determine compensation, there may be other aspects of the issue to be dealt with in addition to or instead of the relationship between the Employment Standards award and the Board's award of compensation. It would then be appropriate for the parties invoke the assistance of the Board.

8The third issue raised by counsel for the respondents relates to the wording of the Notice to Employees which the respondents have been directed to post. Counsel points out that a certain portion of the Notice is not worded in the same way as is the remedy to which it refers. Counsel for the complainant submits that the Notice accurately reflects the decision and should not be amended. The Notice, of course, is part of the remedy, it does not confer any remedies. Any dispute arising about the scope of a remedy because there may be a difference in wording between the decision and the Notice should be short-lived and resolved in favour of the wording in the decision. Preferably, there should not be a difference which could give rise to a dispute. We agree that the relevant portion of the Notice is less precise than the actual remedy granted and we amend it accordingly. Therefore, that portion of the Notice to Employees, attached as an Appendix to the decisions dated February 23rd, which reads as follows:

We will compensate the United Steelworkers of America ("the union" for its monetary losses resulting from our violations of the Act.

is amended to read as follows:

Plaza will compensate the United Steelworkers of America ("the union") for its reasonable negotiating costs arising out of its violation of the Act.

9The directions of the decisions of February 23rd relating to the signing and posting of the Notice to Employees apply to the Notice as amended above.

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, Es AND 75 OF THE LABOUR RELATIONS ACT AND CITCOR MANUFACTURING LTD. ( CITCDR) AND SABINA CITRON VIOLATED SECTION 54 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 REFUSE TO DO AND 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 LOCK-OUT.

PLAZA HILL COMPENSATE THE UNITED STEELWORKERS OF AMERICA

('THE UNION') FOR ITS REASONABLE NEGOTIATING COSTS ARISING OUT OF ITS VIOLATION 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 GO ADVISED UNTIL A COLLECTIVE AGREEMENT IS SIGNED.

PLAZA FIBERGLAS MANUFACTURING LTD. AND PLAZA ELECTROPLATING 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.