Labourers International Union of North America, Ontario Provincial District Council v. Stephens and Rankin Inc., 1992 CanLII 6311

[1992] OLRB Rep. September 1049

3731-91-R; 3755-91-U Labourers International Union of North America, Ontario Provincial District Council, Applicant v. Stephens and Rankin Inc., Respondent v. Christian Labour Association of Canada, Intervener; Labourers International Union of North America, Ontario Provincial District Council, Complainant v. Stephens and Rankin Inc. and Christian Labour Association of Canada, Respondents

BEFORE: S. Liang, Vice-Chair, and Board Members W. A. Correll and R. R. Montague.

APPEARANCES: S. B. D. Wahl, L. Curto, and P. Settimi for the applicant; W. I. McNaughton and Ian Mckie for Stephens and Rankin Inc.; Elizabeth Forster, Hank Beekhuis, Bert Wierenga, Fern Bastien and Marc Noel for Christian Labour Association of Canada.

DECISION OF S. Liang, VICE-CHAIR, AND BOARD MEMBER W. A. CORRELL; September 3, 1992

1. These matters are an application for certification in which a pre-hearing vote was held on March 19, 1992, and a complaint of unfair labour practice. The ballot box remains sealed, due to a number of outstanding issues, not the least of which is the position taken by the respondent and the intervener that this application is untimely.

2. A brief history of the matter is in order. On February 21, 1992, the applicant (also referred to in this decision as "the Labourers") made application for certification with respect to a unit of employees covered by a collective agreement between the respondent (also "the company" or "Stephens and Rankin") and the Christian Labour Association of Canada ("CLAC"). At the time this application was made, the parties were already involved in a previous application for certification filed by the Labourers on March 5, 1991. That previous application also included the holding of a pre-hearing representation vote, on April 9, 1991. As of February 21, 1992, the ballot box in this vote remained sealed. As will be elaborated upon later in this decision, the application of March 5 ("the first application") was ultimately dismissed by the Board on June 11, 1992.

3. There was no dispute as to the timeliness of the first application. The company and CLAC were parties to a collective agreement effective from May 1, 1988 to April 30, 1991. On August 16, 1991, the company and CLAC signed a renewal collective agreement effective from May 1, 1991 until April 30, 1994. In the present application, the Labourers take the position that this collective agreement constitutes a violation of section 81(2) of the Labour Relations Act and is null and void. The Labourers also rely on sections 65, 67, 71, 81 and 91 of the Act. The unfair labour practice complaint was filed a few days later and raises essentially the same issue, relying as well on section 49 of the Act.

4. When these matters came on for hearing, the Board ruled, after hearing submissions from the parties, that it would deal with the issue of the timeliness of the application before proceeding with the rest of the issues, and in particular, would hear the challenge raised by the Labourers as to the validity of the collective agreement signed in August of 1991, in order to determine whether this agreement ought to bar the present application. There is no dispute that if the agreement is a valid agreement, this application would be untimely since it is not made during the periods specified in section 5 of the Act. Clearly, if the agreement is found to be valid, this will dispose of the application for certification. This appears to this panel to be a compelling reason to determine this issue at the outset.

5. The unfair labour practice complaint filed by the Labourers and a letter from counsel of March 18, 1992, set out the material facts on which the Labourers rely in their request for a declaration that the most recent collective agreement between the company and CLAC is void. The portions of the complaint on which they rely with respect to this issue are:

(a) The Respondents, Rankin and CLAC, were bounded by a collective agreement dated June 10, 1988 and expressed to be effective from May 1, 1988 until April 30, 1991. In February, 1991 the Complainant commenced its organizing campaign with respect to the employees of the Respondent Stephens and Rankin Inc. ("Rankin").

(b) On March 5, 1991 the Complainant filed an Application for Certification with respect to the employees of Stephens and Rankin Inc. captioned as O.L.R.B. File No. 3174-90-R. This Application for Certification was acknowledged by the Ontario Labour Relations Board by letter dated March 11, 1991 to the Complainant which acknowledged service of the Form 7 Notices to Employees being sent to the Respondent Rankin for posting. Attached is a copy of the Application for Certification dated March 5, 1991.

(c) Rankin circulated a letter dated March 4,1991 subsequent to March 11, 1991 to all employees in the bargaining unit expressing its preference and support for CLAC over the Complainant. Attached is a copy of the circular dated March 4, 1991.

(d) By letter dated March 7, 1991, the Complainant protested and put a stop to the expression of a preference by Rankin of CLAC over the Complainant. Attached is a copy of the March 7, 1991 letter.

(e) The Complainant filed 54 membership documents in support of its Application for Certification.

(f) The Respondent Rankin filed schedules with its Reply indicating 74 employees on Schedule "A", 18 employees on Schedule "C" and 6 employees on Schedule "D".

(g) At the Labour Relations Officer pre-hearing vote meeting held on March 22, 1991, the Complainant insisted that all persons enjoying seniority and recall rights under the incumbent CLAC collective agreement be considered eligible voters. At first, Rankin supported this position granting eligible voter status to all employees at work and/or enjoying seniority recall status. CLAC denied voter eligibility to its members on layoff who enjoyed seniority recall rights. Attached is a copy of the Pre-Hearing Vote Meeting Report.

(h) The vote could not be taken until April 9, 1991. By that time. Rankin had reduced the number of employees present at work from 74 to approximately 35. The Respondent Rankin was involved in a large project in connection with the Welland Canal. That project was completed at the end of March. Rankin conducted a massive layoff of employees reducing the number of employees present at work from approximately 74 to approximately 35 prior to voting day April 9, 1991. Further, the Respondent Rankin did not commence construction on other jobs in an effort to avoid retaining employees who had been working on the Welland Canal project.

(i) At the pre-hearing representation vote held on April 9, 1991. 90 employees cast ballots including employees on layoff. Attached is a copy of the Returning Officer's Report.

(j) By letter dated April 25, 1991, the Respondent Rankin found it expedient to alter its position to support CLAC and insist on voter eligibility restricted to only employees who were present at work on the terminal date and Voting Day. Attached is a copy of the April 25, 1991 letter.

(k) By decision dated June 10, 1991, the Board determined that voter eligibility would be established for,

“All employees of the Respondent who are working in the bargaining unit on March 20, 1991 and April 9, 1991..."

(l) By letter dated August 7, 199t the Complainant requested that the Board reconsider its decision on voter eligibility. Attached is a copy of the alleged renewal agreement.

(m) On unknown dates, the Respondents Rankin and CLAC have pursued negotiations to vary terms and conditions of employment culminating in the signing of a renewal agreement expressed to be effective from May 1, 1991 until April 30, 1994 and dated August 16, 1991.

(n) At no time were all employees who enjoyed subsisting seniority rights under the prior CLAC collective agreement contacted to participate in meetings to solicit bargaining proposals.

(o) At no time was the Complainant consulted with respect to these negotiations nor was its consent given to the negotiations or alterations in terms and conditions, rights and privileges of employment under the previous CLAC collective agreement which are now found in the renewal agreement dated August 16, 1991.

(p) In granting wage rate increases, the Respondent Rankin has contributed financial and other support to CLAC by altering the operative terms and conditions, rates and privileges inclusive of wage rates. The Respondent Rankin thereby has interfered with the selection of the Complainant as the representative of the employees of Rankin and resulted in coercion, intimidation, threats, promises and undue influence favouring CLAC rather than the Complainant.

(q) The Respondents Rankin and CLAC while the Complainant continues to be entitled to represent the employees in the bargaining unit by virtue of its initial Application for Certification and Section 81 of the Act, have improperly and unlawfully bargained and/or entered into an alleged collective agreement together binding upon the employees in the bargaining unit.

6. In addition, the letter of March 18 states:

(a) On February 21, 1992 the Complainant filed its second Application for Certification captioned as O.L.R.B. File No. 3731-91-R in connection with the employees of the Respondent Rankin.

(b) The Terminal Date set for the second Application for Certification captioned as O.L.R.B. File No. 3731-91-R was set for March 3, 1992. Relative to the Application Date, the List of Employees in the bargaining unit filed by the Respondent Rankin consisted of 86 employees, 15 of which were challenged by the Applicant/Complainant Union.

(c) Relative to the Terminal Date, a Voters List was established consisting of 77 total names, of which 14 were challenged by the Applicant/Complainant Union and three additions were challenged by the Respondent Rankin and CLAC.

(d) By decision dated March 13, 1992, the Board directed the taking of a pre-hearing representation vote with respect to the Second Application for Certification on Thursday, March 19, 1992.

7. Most of the above facts are not in dispute. The respondent and CLAC take issue with the Labourers' characterization of the facts, but to the extent that the particulars set out positions taken or actions taken, these are for the most part documented in correspondence or Labour Relations Officer reports. The respondent and CLAC take issue with paragraph (h) of the Labourers' particulars set out in paragraph 5 above, and CLAC with paragraph (n).

8. Essentially, the facts relied on by the Labourers can be characterized as either those pertaining to the respondent's actions during the first application, and those pertaining to the renewal collective agreement. It should be noted that the position on voter eligibility taken by CLAC during the first application was accepted by the Board in a decision dated June 10, 1991. The Labourers requested reconsideration of that decision, on August 7, 1991 and again in March of 1992. Also in March of 1992, the Labourers wrote to the Board requesting section 8 relief with respect to the first application. The particulars in support of this request are, for the most part, the same as the particulars set out above in paragraphs 5 and 6 of this decision. By decision dated June 11,1992, the Board ruled that it would not entertain the request for section 8 relief, having regard to the timing of the request. As well, the Board again advised the applicant that there was no basis for the Board to reconsider its earlier rulings on voter eligibility. After disposing of the remaining issues regarding the eligible voters, the Board directed that the ballots be counted. Based on the results of this count, the Board dismissed the application. In this previous decision, the Board also considered submissions by the respondent and CLAC that the Board ought to impose a bar pursuant to section 105(2) of the Act or refuse to entertain the second application. The Board declined to do so.

Submissions of the Parties

9. The relevant sections of the Act are as follows:

10. An agreement between an employer or an employers' organization and a trade union shall be deemed not to be a collective agreement for the purpose of this Act.

(a) if an employer or an employers' organization participated in the formation or administration of the trade union or if an employer or an employers' organization contributed financial or other support to the trade union:

8l.-(2) Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer or the employees until,

(a) the trade union has given notice under section 14, in which case subsection (I) applies; or

(b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union.

10. In support of the Labourers' position that the renewal agreement ought to be declared void, counsel for the Labourers' argues that section 81(2) of the Act can and should be read together with the obligation to bargain that is placed on an incumbent bargaining agent and an employer. Counsel does not dispute that as long as CLAC continues to be the bargaining agent, CLAC and the respondent have a duty to bargain in good faith and make every reasonable effort to reach a collective agreement. However, section 81(2) requires that the parties obtain the consent of the Labourers to the terms of the renewal agreement. It is argued that unless such consent is obtained, the signing of a renewal agreement during the course of a displacement application is a clear demonstration of the employer's preference for CLAC over the Labourers, and negates the appearance of neutrality vis-a-vis the application which section 81 is intended to ensure on the part of an employer. Since the renewal agreement provides for a wage increase, in the absence of concurrence by the Labourers, the weekly pay cheques received by employees are a continuing demonstration of the employer's preference for CLAC. Counsel relies on Manuel DaSilva Foods Ltd., [1984] OLRB Rep. June 834 which, it is stated, sets out an analysis which integrates the duty to bargain under section 15 and the statutory freeze in section 81 in the context of a displacement application. Counsel also relies on Signal Transformer Co., Inc. (1982-83) CCH NLRB 26,080.

11. The Labourers also allege that the action of the respondent and CLAC in entering into a renewal agreement is an expression of "other support" within the meaning of section 49 of the Act. As well, it is alleged that in the context of the unfair labour practices committed by the employer, the signing of the renewal agreement must be seen as unlawful in that it is part of an overall attempt to interfere with the employees' freedom of choice with respect to a bargaining agent.

12. Counsel for the respondent submits that the Board ought to refuse to entertain the Labourers' challenges to the validity of the agreement. In his submission, both the allegations with respect to the conduct of the respondent during March of 1991 and the allegations regarding the negotiation of a renewal agreement are untimely. The Board has already rejected them on this basis, in its decision of June 11, 1992. Further, even if the Board considers the allegations, the fact is that the respondent and CLAC acted in accordance with their statutory duties to bargain a collective agreement. Section 81(2) cannot mean that an applicant in a displacement application has the right to join the two parties to the agreement at the bargaining table.

13. Counsel for CLAC submits that no triable issues are raised by the pleadings of the Labourers. It is agreed for the purposes of this argument that CLAC did not consult with the Labourers during the negotiation of the renewal agreement. It is also agreed that this agreement provides for wage increases. Counsel submits that the Board has already interpreted section 81(2), in Crowle Electric Limited, [1982] OLRB Rep. Oct. 1458 and has found that the negotiation of a collective agreement during the course of a displacement application does not per se violate section 81(2). If this is good law, then the corollary is that there cannot be a requirement under section 81(2) to obtain the consent of the Labourers to the terms of the agreement, because section 81(2) only applies where circumstances constituting a "change" exist. There are good labour relations reasons for adopting the analysis in Crowle Electrical Limited, and counsel urges this panel to do so.

Decision of the Board

14. We are satisfied that, even accepting the facts as pleaded by the Labourers to be true, there is no basis for the Board to declare that the collective agreement signed between the respondent and CLAC on August 16, 1991 is void. Dealing first with the Labourers' arguments pursuant to section 81 of the Act, we are satisfied that the facts do not constitute a violation of the statutory freeze. Crowle Electrical Limited, supra, concerned a very similar situation. In that case, the incumbent union, also CLAC, carried on negotiations with the employer both prior to and after the date of application by the International Brotherhood of Electrical Workers, Local Union 1687. In fact, two weeks after notice of the application was received by the employer, a memorandum of settlement was entered into providing for a substantial increase in wages and benefits. In analyzing the relationship between sections 81 [then 79] and 15 of the Act, the Board stated:

15. The statute does not provide an easy and ready answer to the question which has been raised. Section 15 of the Act places an obligation on the parties to meet within 15 days of the giving of notice and to bargain in good faith and make every reasonable effort to conclude a collective agreement. Nowhere in the statute is the employer expressly relieved of his duty under section 15 except where an application is made under section 63 [641 of the Act. Section 63(9) [64(9)] of the Act provides:

Where an application is made under this section, an employer is not required, notwithstanding that a notice has been given by a trade union or council of trade unions, to bargain with that trade union or council of trade unions concerning the employees to whom the application relates until the Board has disposed of the application and has declared which trade union or council of trade unions, if any, has the right to bargain with the employer on behalf of the employees concerned in the application

The respondent employer relies on the absence of similar statutory language relieving of the duty to bargain in the face of a displacement application. The employer maintains that in the face of his ongoing duty to bargain he had no choice but to bargain following the giving of notice by the incumbent.

34. Section 79(2) [81(2)] of the Act stipulates that where a union applies for certification, as did the applicant in this case, and the employer has received notice, as had the employer in this case, the employer, except with the consent of the trade union, shall not alter the rates of wages or any other term or condition of employment, or any right, privilege or duty of the employer or employees until the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union. The applicant argues that the prohibition against any alteration in the rates of wages or other terms or conditions of employment is clear and unequivocal, serves a very important industrial relations purpose, and must, therefore, foreclose the negotiation of a collective agreement designed to improve rates of wages and terms and conditions of employment subsequent to the receipt of notice of any application for certification.

35. If the applicant's submissions are accepted, Section 79(2) must be read as qualifying the duty to bargain under section 15 following the employer's receipt of notice of the displacement application. Otherwise an employer who refuses to bargain in the face of a displacement application might find himself faced with a complaint filed by the incumbent union alleging a failure to bargain in good faith. We note as well that under the mandatory provisions of section 16 of the Act the Minister, upon the request of either party, shall appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement where notice to bargain has been given under section 14 or section 53[541. The appointment of a conciliation officer begins a process, which, if agreement is not reached between the parties, satisfies the preconditions to a lawful strike or lockout. We will have more to say about the practical implications of suspending the duty to bargain in the face of the mandatory provisions for the appointment of a conciliation officer.

36. The Board went on to review some cases before the National Labour Relations Board in the U.S., adopting the approach taken by the N.L.R.B. in RCA Del Caribe, [1982] 110 LRRM 1369. Ultimately, the Board in Crowle Electrical Limited concluded that the "carrying on of negotiations and the implementation of the terms of the resultant collective agreement do not... in and of themselves, constitute a breach of the freeze provisions of the Act or unlawful interference in the protected activities of the applicant trade union". Taking as its starting point the duty to bargain under section 15, the Board states:

37. Section 63(9) of the Act provides an express exemption from the duty to bargain. In the face of section 63(9) of the Act and in the absence of similar language relieving the employer of the duty to bargain when confronted with a displacement application, we would be hard pressed to read such a limitation into the language of section 79(2). Although section 79(2) prohibits the alteration of rates of wages or any other term or condition of employment, it also preserves any right, privilege or duty of the employer. The duty to bargain is a duty which may rest on an employer faced with a displacement application for certification and accordingly, it can be argued that the duty to bargain, where it exists, is preserved by the freeze in these circumstances and overrides what would otherwise be a freeze on wages and terms and conditions of employment. This is an interpretation which fits with the Board's "business as usual" approach to section 79 as was enunciated in Re Spar Aerospace Products Limited [1978] OLRB Rep. Sept. 859 as follows:

"It should be emphasized that the 'business as before' approach dictates that the totality of the employment relationship be the subject of the freeze. In interpreting section 70, the Board does not place undue influence upon the term 'rates of wages' but recognizes that this term must be read in the context of the other words in that section. The words 'any other term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees' must also be given meaning and, in the Board's view, section 70 read as a whole manifests a legislative intent to maintain the prior pattern of the employment relationship in its entirety."

42. Furthermore, as we have observed, even if section 79(2) of the Act could be read as somehow suspending the duty to bargain in the face of a displacement application, the right of the incumbent union to seek and obtain the appointment of a conciliation officer continues. The appointment of a conciliation officer starts the process which, in the absence of an agreement by the parties, satisfies the preconditions necessary to a lawful strike or lockout. We cannot accept that the statute was designed to allow the parties to find themselves in a lawful strike or lockout position at a time when the duty to bargain is not in full force and effect. It is inconceivable that the legislature intended a union to find itself in a strike or lockout position at a time when it could not require the employer to bargain in good faith and make every reasonable effort to make a collective agreement. Conversely, it is inconceivable that the legislature intended to allow an employer to find himself faced with a strike for improved terms and conditions of employment at a time when a bargaining response would constitute a violation of section 79(2) of the Act.

43. It is our construction of the statute, in light of the practical labour relations considerations that we have discussed, that the duty to bargain is not in any way modified by the filing of a displacement application for certification. The freeze provisions of section 79(2), which preserve in place any "duty" of the employer, must be read as preserving the duty of the employer to bargain as he would have bargained had there been no displacement application. As the NLRB held in RCA Del Caribe, Inc. supra, the competing union must take the incumbent, as the lawfully certified bargaining agent of the employees whose bargaining rights are claimed, as he finds him.

44. The interpretation given to section 81(2) by the Board above is, in our view sensible. Certainly, it seems to make more labour relations sense than allowing a third party union to insert itself at the bargaining table by virtue of having made a certification application.

45. We view Manuel DaSilva Foods Ltd., supra, as consistent with our conclusions, and with the approach taken in Crowle Electrical Limited. In Manuel DaSilva, the Board found that there was no basis under the Act to exempt a displacement application from the freeze provision of section 81(2). Thus, it permitted an applicant union to bring a complaint as to change in working conditions by the employer. The Board did not deal with the content of that "freeze" and whether the conclusion of a renewal collective agreement by an incumbent union and the employer would violate the freeze. We do not find Signal Transformer Co., Inc., supra, helpful.

46. We now turn to the Labourers' additional position that the conclusion of the renewal agreement constitutes employer support within the meaning of section 49 of the Act, or constitutes other unlawful interference with the freedom of choice of the employees which should void it. We share the concern expressed by counsel for the respondent as to the timeliness of the allegations with respect to the employer's conduct in March of 1991. As stated above, the Board by its decision of June 11, 1992 refused to consider the Labourers' request in the first application for section 8 relief on the basis of the untimeliness of the request for relief. We have serious doubts as to the wisdom of this panel inquiring into the same particulars in the context of this second application. The facts relied on were known to the applicant at the time they occurred. At the time they occurred, the parties were involved in another proceeding to which these allegations would have been relevant, since they call into question the validity of the pre-hearing vote in the first application as a true representation of employee wishes. Yet, the allegations were made in neither proceeding until almost a year later, in February of 1992. In these circumstances, and in view of the Board's decision of June 11, 1992, we are hard pressed to find any reason why the Board should inquire into these allegations.

47. Even accepting that the applicant can rely on the allegations with respect to the employer's conduct in March of 1991, however, we see no basis for further inquiry. The issue before us is whether there is any basis for voiding the renewal agreement entered into in August of 1991. Even assuming that the employer engaged in unfair labour practices five months before the agreement was signed, that it has expressed a preference for CLAC over the Labourers, and that the facts with respect to the negotiations are true, we do not view these as demonstrating employer support within the meaning of section 49 or other unlawful conduct which would lead to a declaration that the agreement is void.

48. The power to declare an agreement void or, using the language of section 49, to find that an agreement "shall be deemed not to be a collective agreement for the purposes of this Act", is an extraordinary one to be applied in narrow circumstances. Section 49(a) speaks to situations of collusion or "sweetheart deals". Implicitly, in our view, the provision is directed as much at actions of a trade union as actions of the employer. To the extent that it prohibits collusion, one would expect that the actions complained of involve some element of participation by both the union and the employer.

49. In the case before us, the only actions by CLAC which could even conceivably form the basis of the complaint are a failure to consult with all employees with subsisting seniority rights as to the formulation of bargaining proposals, and the negotiation and conclusion of an agreement which contains wage increases. The only allegation which speaks to actions taken together by CLAC and the employer is that respecting the negotiation of a renewal agreement. We have already stated that we view these negotiations in the context of a statutory duty to bargain. In our view, these are no bases on which to conclude that there has been employer support or other interference with the freedom of choice of the employees in the unit which should void the agreement.

50. We also find it troublesome to the Labourers' case that the negotiations which are complained of took place during a period after the holding of a representation vote in the first file, and some six months prior to the Labourers' second application. There is no indication that the respondent and CLAC could contemplate that the first application would be dismissed and that the Labourers' would make a second application in February of 1992. Thus, it is difficult to envisage any concrete advantage (in terms of influencing employees in favour of CLAC for the purposes of a subsisting organizing drive) which the alleged collusion was directed to obtain, and we have not been pointed to any.

51. In arriving at our conclusions, we bear in mind some of the comments made by the Board in Crowle Electrical Limited in which it recognizes the potential for mischief which exists in a situation where an employer bargains with an incumbent union in the face of a rival union's organizing campaign. We are also not unmindful of the difficulties which an applicant union may have in establishing the facts to support an allegation of collusion even where it exists. In finding that there is no prima facie basis on these pleadings to support the violations of the Act that the Labourers allege, we do not foreclose the possibility that an employer and an incumbent union may be found to engage in unfair labour practices while purporting to rely on their statutory duty to bargain. The facts relied on in this case, in our view, do not establish that.

52. Accordingly, the complaint, insofar as it relies on section 81(2), is dismissed as disclosing no prima facie case. We find that there is also no prima facie case for the application of section 49(a) or of a violation of any other section relied on by the Labourers in its request to declare the collective agreement between the respondent and CLAC void.

53. Accordingly, the application for certification is dismissed as being untimely. The complaint of unfair labour practice may be relisted for hearing on the remaining issues at the request of any party.

DECISION OF BOARD MEMBER R. R. MONTAGUE: September 3, 1992

1. I dissent.

2. I have great difficulty as to why the employer would want to conclude a collective agreement when not knowing who was going to be the Bargaining Agent for the employees, except as a means of showing the employees the employer's preference.

3. In Crowle Electric Limited, [19821 OLRB Rep. Oct. 1458 at par:

4. In interpreting the statute as we have, we have been troubled by the potential for mischief which exists where an employer bargains with an incumbent union in the face of a rival union's organizing campaign. We reiterate our observation that many unions and employers voluntarily agree to suspend bargaining pending the outcome of a displacement application. This decision does not in any way impede the making of such voluntary agreements to suspend bargaining. More importantly however, the employer's duty to bargain is to bargain as he would have bargained in the absence of a displacement application. If the employer, either on his own, or in conjunction with the incumbent, attempts to seize upon the vehicle of collective bargaining to interfere with employee freedom of choice. he is in violation of the Act. Notwithstanding the ongoing duty to bargain it cannot be used to effect an unlawful purpose and, if it is, the remedial authority of the Board can be brought to bear. (My emphasis added.)

The only sound conclusion that I am able to reach is that this employer had a preference on whom it wanted to deal with and seized upon the vehicle of collective bargaining to interfere with employees freedom of choice.

Accordingly I would declare that the collective agreement signed between the respondent and CLAC on August 16, 1991 is void and I would allow the application for certification.