Energy and Chemical Workers Union, Local 593 v. Union Carbide Canada Limited, 1992 CanLII 6318

[1992] OLRB Rep. May 645

1491-91-U; 1492-91-U Energy and Chemical Workers Union, Local 593, Applicant v. Union Carbide Canada Limited, Respondent; Energy and Chemical Workers Union, Local 593, Complainant v. Union Carbide Canada Limited, Respondent v. Group of Employees, Interested Party

BEFORE: M. G. Mitchnick, Chair, and Board Members G. O. Shamanski and H. Peacock.

APPEARANCES: Daniel Ublansky, Carol Fraser, John Macdonald and Rick Bauer for the applicant/complainant; F. G. Hamilton, Q. C. and Rod Sanders for the respondent; James K. Bonus and Barry (Douglas) Burnell for the interested party.

DECISION OF THE CHAIR, M. G. NIITCHNICK, AND BOARD MEMBER H. PEACOCK; May 29, 1992

1. This matter involves an application for a declaration of unlawful lock-out under section 95 of the Labour Relations Act (formerly section 93), together with a section 91 (formerly section 89) complaint alleging a contravention of sections 15, 50, 51, 65, 67, 71 and 74 (formerly sections 15, 49, 50, 64, 66, 70 and 72) of the Act. The Union that is the applicant/complainant was and is bargaining agent for employees at a plant belonging to the respondent employer in Oakville, and the essence of the complaint is that the respondent threatened to move part of its operation at that facility, being the Packaged Gas plant, to a new location not covered by the collective agreement if the Union and members of the bargaining unit did not agree to changes to their current agreement. The Union did not agree to those changes, and that operation did ultimately move. The Union also claims that the respondent's failure to disclose the state of its thinking with respect to such a move during the round of negotiations that immediately preceded the announcement of the move consti­tuted a failure to bargain in good faith.

2. Because of the view the Board ultimately takes of this matter, the material facts may be set out in a relatively distilled way. In fact, pivotal to the position the parties took in their face-to-face "negotiations" surrounding the move, as well as to their positions before the Board, is the issue of whether the parties' existing collective agreement continued to cover the severed part of the business even after its relocation, given that that relocation was to a site within the same town as the existing plant. The Scope or "Recognition" clause of that existing collective agreement pro­vides:

2:01 The Company recognizes the Union as the sole and exclusive bargaining agency for employees in a bargaining unit to which this Agreement applies, composed of all employees at its plant in Oakville, save and except foremen, persons above the rank of foremen, technicians and those above the rank in the Specialty Gases Department, students employed during the school vacation period, (from April 15th to and includ­ing the Friday following the Labour Day Holiday) office and sales staff.

The term "employee" as used herein means all employees represented by the Union as above defined.

With some minor irrelevant changes over the years, that description of the bargaining unit mirrors a certificate granted to the Union by the Board in 1970. The description is not in the terms most commonly used by this Board, from a geographic point of view, and the decision of the Board accompanying the certificate indicates that it was adopted by the Board having regard to the agree­ment of the parties. Also raised by the Union on this point of the agreement's coverage is Article 3 of the collective agreement, which provides:

3:01 The Union understands and agrees to recognize that the function of managing and operating the Plant shall rest solely with the Company including but not limited to the hiring and directing of the work force, the determination of the number of employees required to fill the various job classifications, the right to promote, demote, transfer, discipline, suspend and discharge employees for just cause; the determination of the qualifications of an employee to perform work; the location of the Plant or Plants; the type and quantity of products; the methods, processes and means of manufacturing; the making, publication and enforcement of rules for the promotion of safety, effi­ciency and discipline and for the protection of the employees and the Company's plant, equipment, products and operations.

The exercise of these functions shall be consistent with the terms and provisions of this Agreement and wherever they are inconsistent, an employee will have the right to file a grievance.

3. It is common ground between the parties that the respondent had one location only within the limits of Oakville at the time of the certification, and that was at 2393 Speers Road. The Speers Road property itself is made up of a number of separate buildings, all being encompassed within a perimeter fence, and with access controlled through a gatehouse. The facility is operated by the Industrial Gases Division of Union Carbide, originally known as the Linde Division, and since January of 1992 separately incorporated as Linde Canada Inc.. The site includes an Air Sepa­ration or "production" plant, which manufactures the base products of oxygen, nitrogen and argon, a "Packaged Gas" plant or facility for the filling of high-pressure cylinders using those gases, a "Specialty Gas" Lab, which produces special mixes of the gases, and a Transport and Dis­tribution Centre which houses the drivers and the Dryox servicemen (who install and service stor­age tanks at the customer sites). Another aspect of the Industrial Gases Division involves hydrogen gas, but that has never been associated with the Speers Road production facility. Rather, the com­pany until 1982 had always purchased its hydrogen product directly from facilities operated by its competitors in Oakville and Hamilton. In 1982, however, the company opened a Hydrogen plant of its own, at 3361 Rebecca Street in the Town of Oakville, drawing on and purifying the hydrogen stream emanating as a by-product from the nearby Petrocanada refinery. There originally were two salaried operators involved for the staffing of that new plant, and that later became four. While located some distance apart, there has always been regular contact between Speers Road personnel and the Rebecca Street plant, with the former performing occasional service work there, and the Speers Road trucking fleet being used to pick up and deliver trailers for the Rebecca Street site. There have on occasion in fact been grievances arising out of some of that interface, and there is no doubt that the Union and employees generally were aware of the existence of the Rebecca Street plant. Until the events about to be described, however, there was never any suggestion by the Union that this new Hydrogen plant was within the contemplated scope of the existing collec­tive agreement.

4. That collective agreement had an expiry date of February 28th, 1991, and on February 20th the parties met to open the negotiations for its renewal. The parties had, in the immediately preceding round, agreed on a new article in the collective agreement, dealing with "Plant Clo­sure", which provided:

20:01 In the event of a total plant closure:

1. The Company shall notify the Union at least three (3) months prior to the cessation of operations.

2. Following such notifications, the Union shall have the opportunity to dis­cuss and explore with the Company any possible means of averting the clo­sure.

3. If attempts to avert the closure are not successful, Union and Company representatives shall meet to discuss the manner in which the closure is car­ried out, with consideration to such things as re-location, re-training, meth­ods of payment, job-market assistance and retirement options.

4. In the event of termination caused by the permanent shutdown of the Oak­ville facility, affected employees with less than five (5) years of company credit service, will be paid according to the Lay-off allowance provisions of the Contract.

Affected employees with 5 or more years of company service credits will receive one week's pay for each year of service to a maximum of twenty-six (26) weeks. There shall be no duplicating of pyramiding of severance/lay-off payments required by the Contract or Employment Stan­dards legislation.

5. In the event of the death of an employee during the formal notice period -all severance pay shall be paid to the estate of the employee.

In the 1991 renewal negotiations, the Union tabled a proposal to enhance those protections, essen­tially by extending it to include "partial" plant closures, by extending the notification period to the Union, by changing "discuss" in paragraph 3 to "negotiate", and by augmenting the severance-pay pay provisions. The Unit chairperson, Gord Harvey, had in fact been apprised of a rumour from one of the drivers that the company was going to move the drivers and servicemen to Mississauga, and Mr. Harvey advised the member at the time that he would raise that matter specifically with the company in bargaining. Mr. Harvey did so, at the outset of his opening remarks, asking about that particular rumour, and then going on more broadly to ask if the company had any plans to move any other part of the plant, or the whole plant itself. According to Mr. Harvey, Rod Sand­ers, National Human Resources Manager for Linde and spokesperson for the company at the bar­gaining table, responded that "there were always studies underway", and that if any decisions were made, the Union would be advised. There is some dispute in the parties' evidence as to whether anything was said beyond that, Mr. Harvey testifying that Mr. Sanders added words to the effect that given the economic circumstances of the company, there was not likely to be anything come of it. The company's witnesses deny that any such thing was added. Mr. Harvey also testified that the matter came up again a number of times subsequently, with the same statements again being made by Mr. Sanders. The company's evidence is that the subject never was raised again. For the pur­pose of our decision in this matter, we are prepared to act on the basis of the company's evidence. The Union's proposal for changes to the Plant Closure clause remained on the table, in any event, almost to tIle very end of negotiations, disappearing only in the final stages of a deal being reached at the conciliation meeting which concluded the negotiations on March 20th.

5. Mr. Sanders himself, according to the company's evidence, heard nothing more about any plans for a move until the middle of May, when he was advised by Linde's General Operations Manager in Canada, Alec Johnston, that a Lease Proposal had been submitted to Union Carbide's Head Office in Danbury, Connecticut for the purpose of moving the "Packaged Gas" operation to a new facility, most likely at a site in Oakville. A meeting took place involving both Mr. Johnston and Mr. Sanders, together with other management personnel and outside legal counsel, to explore the human-resource and labour relations ramifications of the planned move. One of the focal points of the discussion was the question whether, given the likelihood of the move being to a loca­tion within Oakville itself, the scope clause of the Union's existing collective agreement applied. Mr. Sanders testified that that was the position they expected the Union would take, but that on the strength of the history with the Rebecca St. plant, the company at the end of the meeting was satisfied with the position that the collective agreement applied only to Speers Road. It was also decided at the meeting, however, that the company would offer to "voluntarily recognize" the Union at the new location, wherever it might be, so long as the Union was prepared to enter into a separate collective agreement for that new location, which would contain the changes the company felt it needed to fit within the concept of the new technology being introduced, and the operational direction, involving closer identification with the individual businesses, that the company sought to move in. After reviewing the existing collective agreement in detail, Mr. Sanders and his staff put together a list of the changes that would be needed, including the collapsing of the existing non-maintenance classifications into one, multi-skilled position called a Cylinder Processor, at a rate that on the whole compared favourably with what the current classifications were currently paying, and for which all of the employees would be given the necessary training. The other major change, consistent with the company's philosophy and its insistence on a separate collective agreement, would be with respect to seniority bumping rights; during the initial transition period employees would have the right to exercise their seniority at either location, but once that was done the seniority lists under each of the two collective agreements would be strictly separate and non-appli­cable to the other location.

6. It was decided that June 14th would be the day that the company would make the announcement to the employees at the plant, and Mr. Sanders arranged to meet the day prior with the Union's staff representative, Carol Fraser, to apprise her of the details in advance. Mr. Sanders at that meeting with Ms. Fraser began by outlining the difficult financial circumstances under which the company was operating. Mr. Sanders testified that he advised Ms. Fraser that the Cana­dian Head Office in Toronto had been given a directive by Danbury to achieve a 20 per cent return on investment, rather than the 7 or 8 per cent that had been achieved in recent years. Mr. Sanders noted to Ms. Fraser as well that the company had just finished divesting itself of its Packaged Gas business in the United States, breaking it up and selling it off to employee-owned local companies. He then advised her that the Packaged Gas operation at Oakville would not be closed down, but rather that it was going to be relocated to a new site, probably still in Oakville. Mr. Sanders went on to say that the company was prepared to extend the Union's certification to the new location, as long as the parties were able to come up with an acceptable agreement. Mr. Sanders testified that Ms. Fraser expressed her relief that she was not being faced with yet another plant closure, and indicated that she was not surprised at the development, given Mr. Sanders' reference to studies during the negotiations. The meeting then simply ended with the discussion of a timetable for meeting with the Union committee. The next day the company held its meetings with the employee groups as planned, and Mr. Johnston read out the following prepared text:

I called this meeting today to announce that effective with September 30th, the Company will be relocating its Packaged Gas Operations to a new location, in all probability within Oakville. At this facility, the Company will be operating an initial two-shift operation using new computer­ized cylinder filling technology and equipment, along with more efficient methods of cylinder handling. The product line to be covered here will include mixes and pure gases. The Specialty Gas Lab, Transportation and Customer Service and Production operations will remain at Speers Road.

As a result of anticipated productivity gains with the new technology and work process we are investigating expanding into other product lines.

With this new technology and approach, there will be a reduction of personnel - it is anticipated that the new facility will be manned by 18 - 20 hourly staff on an initial two-shift basis. This means that at various stages through the transition layoffs will occur. Layoffs will be done according to the collective agreement.

Since this approach will radically affect the way we do business for some people in Specialty Gas and the Packaged Gas Operations, the Company will be sitting down with your Union as soon as possible to discuss the changes. The intent being, is to let everyone affected have as good an idea as possible as to how and when this will impact on them.

We recognize the serious implication this will have on some of you at this facility. We can assure you that our decision to implement change was not taken lightly. However, it will mean a major improvement in our overall competitive position and that will be a benefit to those employees remaining.

7. From there the company and Union moved swiftly into a series of meetings set up to attempt to arrive at terms and conditions of employment that would apply at the new location. The company went through the list of changes that it had prepared, but made it clear that fundamental to its position was recognition of the fact that the two locations would henceforward be covered by separate collective agreements. From the outset, however, it was apparent that the employee com­mittee, led by Mr. Harvey, were simply not buying that. Rather, Mr. Harvey made reference immediately to the existing agreement's Recognition clause, and kept pressing Mr. Sanders for a satisfactory explanation why all of the changes the company felt it needed from an operational point of view could not be accomplished within the parameters of the existing collective agree­ment. Mr. Sanders repeatedly tried to impress upon the committee that if it was decided not to relocate within Oakville and no new collective agreement was reached with the Union, there might be no jobs for any of the existing employees at the new facility. Eventually, however, all that was agreed was that the company would reduce its entire position for a new agreement to writing, and the committee would take it back to the employees for a vote. The company had that position pre­pared by July 4th, forwarding it to Ms. Fraser along with a note from Mr. Sanders which read:

Dear Carol:

After three (3) meetings, I am attaching the Company's position which is available for accep­tance until July 11, 1991, after which time it will be withdrawn.

Yours truly,

R. K. Sanders

The company position itself began by stating:

Providing the Union accepts the following terms and conditions, the Company is prepared to invest in new technology and equipment at a new Packaged Gas facility located in Oakville and voluntarily recognize the Union in a separate Collective Agreement covering only the new Facil­ity and commencing October 1, 1991.

This new Collective Agreement would have a February 28, 1993 expiry date with a 5.5% increase on March 1, 1992. Subsequent agreements to be re-negotiated separately and voted on separately from the Speers Road Agreement.

That term and 1992 increase were in accordance with the collective agreement that had already been negotiated. The document then summarized the various changes that the company was seek­ing in the new agreement. Under "Lay-offs" the company noted, inter alia:

Employees displaced from their classification under the application of the Speers Road Agree­ment will be offered on a seniority basis the position of Cylinder Processor at the new Oakville facility providing the new Collective Agreement for this facility is accepted.

After going through the remaining conditions offered, the document then concluded:

If the Union does not accept the conditions for voluntary recognition, preferential hiring, seniority recognition and the other improvements offered above at a new facility to be estab­lished in Oakville, the Company's offer is withdrawn and the Company will not be prepared to sign a Collective Agreement voluntarily recognizing the Union. Further the Company will locate its new facility at any place of its choosing without a Collective Agreement voluntarily recogniz­ing the Union. We urge the Union to accept the Company's offer which provides opportunities and advantages not otherwise available.

8. The Union committee then took this document back to the membership as promised. However, the committee continued to be upset by the company's whole posture in the matter, hav­ing fully perceived the message set out by Mr. Sanders in his earlier remarks about "no jobs", and as reinforced by the closing paragraph of the company's written position. Indeed, one of the employees called by the Intervener employees (being persons employed at the new facility who oppose the Union's application/complaint here) indicated that that last paragraph left no doubt for anyone that the company was "playing hardball". Another of the employees called by the inter­vener simply indicated that all of the junior employees went to the meeting prepared to vote against the company's offer of recognition to the Union no matter what it contained, since that was clearly the only way any of them would have any chance to be the ones retained in employment at the new facility. In any event, the vote by the employees was "unanimous" to reject the proposal made by the company, and instead to pursue unfair-labour-practice proceedings before the Labour Board, as recommended by Mr. Harvey. There was a considerable amount of time spent in the evi­dence over just what was said at that meeting, and what was voted on, and in particular on the fact that the Union took the vote by a show of hands. On the last point, the best that the Interveners can say about the evidence is that one of their witnesses suggested that the vote against the pro­posal might have been "something less than 100 per cent" if the Union had opted instead for a secret-ballot vote. In the final analysis it should be recognized, however, that all of that is irrele­vant for the purpose of the issues before us, and the Union is not a respondent.

9. The Union communicated the result of the meeting to the company through Ms. Fraser, and there were no more negotiations on the matter. Notwithstanding the words of warning that had been issued, the company proceeded with its plans to move to a new site within Oakville, in fact only a few blocks away from the Speers Road plant, at 781 Westgate Road. That was announced by the company in September, although Mr. Harvey through his own investigations had discovered the new site a couple of weeks earlier. With a minor exception, the Westgate facil­ity was staffed entirely with personnel that had been with the company at Speers Road, although not on the basis of applying the terms of the Union's collective agreement - and not with any role being played in the matter by the Union.

10. With respect to the unfair-labour-practice allegations before the Board, and in particu­lar the "lock-out" charge, it is obvious that the present case does not involve the typical kind of "anti-union animus" that one sees talked about in some of this and other Boards' previous juris­prudence. This is a sophisticated employer used to dealing with Unions, and whatever operational considerations led it to favour a relocation site in close proximity to its original plant within the Town of Oakville, there obviously were more "risk-free" options available to it, at least from the point of view of the potential application of the collective agreement's scope clause. In fact, its position was that it was prepared to acknowledge the Union's bargaining rights in any event - pro­vided it could get the accommodations on the terms and conditions of its existing collective agreement that it wanted. That too, of course, can constitute a "lock-out" or other forms of unfair labour practices, albeit in a much more difficult and subtle form. The Board finds, however, that it need not deal with that aspect of the complaint, since the only remedy the Union seeks to achieve through all but its section 15 allegation is the imposition at the new facility of the existing collective agreement. And if it turns out as a matter of law that the Union was correct from the beginning, that what the company was offering it "voluntary recognition" for was something that it already had under the collective agreement, that is an end to the matter.

11. When the Union was advising the company of the vote of the members against its pro­posal, Ms. Fraser and Mr. Harvey, who were both relatively new to the Oakville plant, learned for the first time of the existence of the Rebecca St. Hydrogen plant. They immediately grieved the non-application of the Union's collective agreement to that plant, and the matter proceeded to an arbitration decision of Mr. 0. V. Gray which was issued on November 13, 1991. Mr. Gray has some familiarity with this Board's practices, and recognized that the scope clause in the instant cer­tificate and collective agreement was not in either of the two forms that the Board traditionally sees; that is, it did not simply state "in Oakville", without the words "at its plant", in accordance with this Board's normal preferred practice; but nor did it simply use the municipal street address, the way some collective agreements have not infrequently been seen to do in the more distant past. Thus Mr. Gray wrote, at page 18 of his award:

I agree with counsel for the employer that the addition of the words "at its plant" to the verbal formula ordinarily used by the OLRB must be given some significance. By the same token, though, some significance must also be given to the fact that a municipal address was not used to describe the limitation.

The "employees" referred to in a certificate or recognition clause are not just those employed at the time of certification. The employees in a bargaining unit at any particular time are all those, whenever hired, whose employment brings them within the grammatical scope of the bargaining unit description at that time. The OLRB has treated municipal limitations similarly. When a unit is defined in terms of all employees in a municipality, employees in the unit at any particu­lar time are determined by reference to the municipal boundaries at that time, not to what the boundaries were at the time of certification: Kohen Box Co. (Windsor) Limited, [1966] OLRB Rep. May 117. Against the background of these tendencies to and preferences for dynamic rather than static bargaining unit definitions and interpretations, the words "at its plant" might very well not have the same effect as a limitation framed in terms of the municipal address of the plant which existed at the time of certification. Even if those words are treated as limiting by reference to what existed at the time of certification, the reference may be to function rather than location, as in the two departmental unit cases cited by the employer. On either of those views, "plant" might be treated as shorthand for "plant or plants." The use of the latter phrase in Article 3:01 lends some support to that sort of interpretation.

Mr. Gray looked to the past practice concerning that Rebecca Street plant, however, for the guid­ance it provided him in deciding what was within the contemplation of the parties when they agreed to the words "at its plant in Oakville", and concluded that that particular plant was not encompassed within the collective agreement's scope clause. The company was arguing, of course, as it does here, that the words "at its plant" meant that the only plant in Oakville that could be found to fall within the contemplation of the scope clause was the one located specifically at 2393 Speers Road. In other words, the company seeks to have the collective agreement's scope clause read to the same effect as if the street address for the original plant had been included. Thus Mr. Gray at the conclusion of his award observed:

……This does not take me quite as far as the employer would have me go, however. The union's acquiescence in exclusion of the Rebecca Street employees from the scope of its collective bar­gaining relationship with the employer is only evidence of an understanding with respect to those employees. It is not unequivocal evidence of an understanding that the recognition clause cannot cover employees at any location other than the Speers Road location. The parties' past practice resolves the ambiguity in the language of the recognition clause so far as is necessary for a decision about this grievance. It does not resolve it in other respects. The remaining ambiguity will have to be resolved in other proceedings, as the need arises, if the parties are not able to agree in the meantime on more precise language.

12. By those comments Mr. Gray appears to us to have been fairly anticipating a case like the present. That there are substantial differences in the two situations is apparent - indeed, it is clearly reflected in the testimony of the company witnesses themselves. Mr. Johnston, for exam­ple,in outlining the various operations of the Division, himself drew a distinction between facilities like those of the air separation and packaged-gas filling plants at Speers Road, and Hydrogen plants. More to the point, Mr. Sanders in cross-examination was asked to explain why the com­pany was prepared to offer "voluntary recognition" to the Union for the new facility at Westgate, when it had never thought to do so for Rebecca Street. Mr. Sanders' answer is contained in the fol­lowing exchange:

Mr. U: With respect to your voluntary recognition offer, do you see any differences?

Mr. S: Yes. The difference was the hydrogen per se. We went into it for the first time. It was the first time that we had gone into cleaning up someone else's hydrogen stream. Pre­viously we had bought it from our competitors.

Mr. U: And sold it to others?

Mr. S: Yes.

Mr. U: And that's why it's different?

Mr. S: Yes.

Mr. U: What's that got to do with Union recognition?

Mr. S: The Packaged Gases Operation that we were moving out - the work being done is the same; it's the same product lines being done in a different way.

Mr. U: So there is a difference between the 1982 situation and the 1991 situation in your mind.

Mr. S: Yes.

Or as Mr. Johnston put it, "in the case of the Hydrogen plant there were no job losses because the work was not done at the Speers Road plant". While Mr. Johnston at that point was doing his best to explain the distinction in purely equitable terms, we find that distinction articulated by both him and Mr. Sanders to be most material on the legal question as well. That is, we find that the phrase "at its plant in Oakville" makes the most sense when read to describe the "function", in the words of Mr. Gray, of the plant that was located at the time at 2393 Speers Road, rather than the street address itself. To test that proposition, it seems to us, one could ask the question whether the par­ties would have contemplated that, following the granting of the Board's certificate on this agreed-upon description, the Union's bargaining rights would have ceased to have application in the event the company chose simply to move its plant to a new municipal address across the street. And the same conclusion appears to us to arise where the move, as here, was of only one of the segments of the Oakville plant's business, and where it was a few blocks away, rather than across the street. One has no way of knowing how much "bluff" there may have been in the position adopted by the company in offering "voluntary" recognition for this new site, in the hope of achieving the kind of concessions the company felt were critical to making the new operation a success. Certainly the company had not a great deal to lose, given the lack of greater specificity in the scope clause and the history of the Hydrogen plant, to take the position it did, and see whether there was enough uncertainty on the Union's part to allow the company to achieve its collective-bargaining goals. In the end, however, we find that the Union's assessment of the situation was correct, and that the company was seeking to bargain with them on the basis of offering to the Union what was already theirs.

13. We accordingly find and declare that the Union's existing collective agreement with the company covering "all employees at its plant in Oakville" encompasses as well as the Speers Road facility the new location for the Packaged Gases plant opened by the company on Westgate Road. It follows from that that the staffing and subsequent operation of that new plant was governed by and should have been carried out in accordance with that collective agreement, and the parties are directed to meet forthwith and attempt to work out an agreement as to how the current situation is to be rectified. As noted at the outset, the Board has made this determination as to the coverage of the collective agreement's scope clause, rather than defer to arbitration as suggested by the respon­dent, as a necessary first step in addressing the various charges and issues that were potentially included in the case brought before us. However, should any dispute continue to exist between the parties with respect to what ought to have been done to properly apply the collective agreement, or what remedies ought to flow as a result of that failure, that is a matter which at this stage can and should be determined for the parties through private arbitration under the collective agree­ment itself, rather than through this public tribunal. The Board accordingly directs the parties to waive the time limits for resurrecting the initial grievances dealing with this matter, and to use them as a vehicle, under the applicable procedures of the collective agreement, to address the question of remedies flowing out of the Board's finding here that the collective agreement applied to the new plant opened by the respondent at 781 Westgate Road in Oakville.

14. Again as noted, the finding above on the Scope clause takes care of the bulk of the unfair labour practice charges that have been placed before us here, each with a view to having the Board arrive at and direct the same result that the Board has just arrived at through its interpreta­tion of the collective agreement. The only exception is with respect to the allegation of a breach during the negotiations of the duty to bargain in good faith, and for which the Union reserved the right to address the Board on remedy, depending on the actual findings of the Board in that regard, and also the findings made by the Board on the other aspects of the case. The Board recog­nizes that there may not in fact be a great deal which the Union will be concerned about seeking, in light of the situation as it stands and the order of the Board on the main aspect of the complaint, but in light of the Union's position it remains necessary for the Board to set out the pertinent facts and its findings in connection with the bargaining complaint.

15. In assessing that complaint, it is necessary to look at the situation as it in fact existed, as disclosed by the evidence that came out before the Board in the course of this lengthy proceeding, and not as the Union, or its representative Carol Fraser, knew it at the time the company decided to disclose it, on June 13th. The critical evidence in all of that is that of Mr. Johnston, particularly in light of the company's evidence as to how little the company's negotiator at the table, Mr. Sand­ers, actually knew, and when.

16. Mr. Johnston has been with the company for 18 years, and at the time of these events was General Operations Manager for Linde, Canada'-wide. He at all times reported to an appoin­tee out of Danbury, but, owing to the wide-scale shuffling of senior personnel and corporate parts which Mr. Johnston outlined in great detail for this period, there were times between the summer of 1990 and 1991 when Mr. Johnston was the most senior person in the Division who was actually headquartered in Toronto. Mr. Johnston spoke also of the financial pressures affecting the com­pany on a general scale, leading, in fact, to the sale of the company's long-held Head Office Building in downtown Toronto, and a substantial down-sizing of the staff there. Oakville was the largest of the company's Packaged Gas facilities in Canada, and the Canadian operation had been per­forming moderately well in recent years. However, the Packaged Gas business generally had been coming under intense pressure from low-cost producers, to which Canada was being increasingly exposed through the effect of the Free Trade agreement. Mr. Johnston testified that in September of 1990 the company had broken up its Packaged Gas business in the United States and sold it off to employees locally. World-wide, however, Packaged Gases were still the major component in the company's Industrial Gas business, and outside of North America, quite profitable. Mr. Johnston in fact raised the subject of divestment with his Danbury superiors at the time of the U.S. action, and was told that no similar plans existed for Canada. Mr. Johnston was told, however, that the parent company would henceforward be looking for a return on capital of 13%, or 20% on operat­ing profit, in order to match what some of its competitors were achieving.

17. Through the course of 1990 Mr. Johnston had been monitoring the testing of new, com­puter-based handling and filling equipment at two of the company's Quebec plants, Varennes and Bourgeoys Street in Montreal, and the results were extremely positive. By the end of 1990 Mr. Johnston therefore made what he describes as a "personal" decision that these new methods should be introduced at the Oakville plant, to improve its productivity, as well. To that end he con­vened a meeting for December 3rd and 4th at Head Office of a number of management individuals in the company, including a number from Oakville. Mr. Johnston explained to the group what the experience with the new technology had been in Quebec, and indicated that he would give them time over the next two days to come up with specific recommendations as to how it could be imple­mented in Oakville, looking in particular at the the lay-out of the Speers Road plant. That was about as far as the matter proceeded at that point. Later in December, however, Mr. Johnston had a conversation with Leo Duval, one of the senior technical people working on the project that Mr. Johnston had assigned, and Mr. Duval outlined for Mr. Johnston a number of physical problems involved in trying to make the new technology fit the Speers Road lay-out. In particular, Mr. Duval noted that it would be virtually impossible to carry out new construction at the site without at least temporarily relocating the garage facility to another location of the company in the proxi­mate area. Mr. Johnston responded that, in light of the problems raised, Mr. Duval should as well have a search begun to locate alternative sites, within the general confines of the Oakville, Milton, Hamilton area. That was done immediately, and by January 30th the company had compiled a list­ing of 11 available and potentially acceptable properties. These were all scored according to 17 dif­ferent attributes, and whatever system was used, 781 Westgate, the eventual "winner", was ranked first by a considerable margin at 122, with the next 4 closest properties being ranked at 97, 96, 96, and 96 respectively.

18. There had to this point been no one from Human Resources spoken to about these ongoing activities because, Mr. Johnston testified, the project had not yet reached that stage. Mr. Johnston indicated that he had not yet made a decision which of the options to recommend to Dan­bury, and that in fact, with the tumult and lack of consistent direction in the company, he had no idea whether there was any inclination to spend any further money on the operation at all. With negotiations for that plant coming up on February 20th, however, Mr. Sanders, as an experienced negotiator, followed his usual practice and went to see the individual in charge, Mr. Johnston, to ask if there were any plans in the offing that might affect the negotiations with the Union. Mr. Johnston's reply was that "everything was being studied", that there were many options under con­sideration, and that if any decisions were made, Mr. Sanders would be advised. Mr. Sanders testi­fied that that was typical of the Oakville situation, and that he had learned long ago that there was no sense fanning the rumour flames with discussion of things that might or might not come to pass. Similar evidence in fact came from one of the senior employees called by the Interveners, stating that there were always different things being looked at for Oakville, with, in some cases, even lay-outs being drawn up and discussed with the employees, but that these had rarely come to anything. Mr. Johnston's own explanation in cross-examination for not sharing with Mr. Sanders the state of his thinking and the actions arising out of the December meeting was that Mr. Sanders "didn't need to know". Asked whether Mr. Sanders did not need to be fully apprised of the facts so that he would be in a position to fashion an honest response if a question were asked at the bargaining table, Mr. Johnston replied that "Mr. Sanders would have been apprised of any factual informa­tion necessary - when decisions had been made that had been brought up in the course of the nego­tiations". Mr. Johnston added that he also did not think it appropriate to single out for mention the new technology project for the Packaged Gas operation, because that was only one of many options being considered for Oakville as a whole, and many of the others were much less farther along. When pressed Mr. Johnston conceded that none of those other "options" had any bearing on what was going to happen with the Packaged Gas initiative, but stated that it was the sheer number of the other options that made it inappropriate to comment specifically on the Packaged Gas initiative. When Mr. Sanders did come to attend the opening bargaining meeting on February 20th, therefore, the answer he gave was, according to his testimony, essentially the answer that Mr. Johnston had given him, that there were "always" studies ongoing for the Oakville plant, that there were many options being studied, and that when and if decisions were made, the company would let the Union know. Mr. Sanders testified that he did not go back to Mr. Johnston to check the matter any further after the Union had raised the specific rumour of the personnel in the garage facility being moved because Mr. Johnston had already told him that he would get back to him when and if any decisions were made, and he had no reason not to accept that.

19. As for the move of the Packaged Gas facility itself, Mr. Johnston in cross-examination indicated that the focus did not come off the expansion of Speers Road rather than moving the Packaged Gases to a new location until some time in early May, when the company got some response back on the availability and cost of leased facilities. Until that point in May, Mr. John­ston insisted, the company was still considering the expansion of Speers Road as an option - not­withstanding the lack of evidence of any working documents or drawings beyond the preliminary lay-out drawing done by Mr. Duval's group in December. In direct examination Mr. Johnston did acknowledge that he had seen the report on Westgate Road from the outside realtors when it came in in mid-April. That report appears to be simply confirmatory of an earlier report of March 13th, and indicates in greater detail the reasons for considering 781 Westgate Road as the frontrunner. Perhaps more informative for our purposes, however, is the Property Budget Request prepared internally by the company and bearing date April 10, 1991, which outlined the thinking of mem­bers of the management team with respect to the project in considerable detail. Beginning with the "Purpose" the document notes:

Purpose

The purpose of the lease proposal is to provide a new packaged gas cylinder filling plant which will incorporate new filling and handling technologies.

Consistent with Linde's strategy of being a low cost producer in the industrial cylinder gases business, over the last year the Packaged Gases operations group have been reviewing the latest advancements in cylinder filling technology and theory.

An extensive test is being carried out at the Montreal Bourgeoys St. facility to model the chosen blend of technology and handling theory. Based on the results to date, significant savings are available resulting from both technological advancements as well as increasing management effectiveness.

The key advancements hinge around two points:

1. The standardizing of the filling procedure through automating the filling process of both pure gases and mixtures.

2. The control and coordination of the cylinder handling methods/approach through the use of fork-lifts and 16 cylinder carrying buckets.

Consistent with this strategy, the analysis of the productivity of the various plants were reviewed against productivity measures.

The plant with the lowest relative productivity was the Oakville location (Linde's largest cylin­der filling location). The primary reasons for this are layout, culture and product mix.

The results of implementing this technology are expected to be in an increase of 30% as com­pared to the current plant efficiency (pertaining to the Packaged Gases side only). In real terms, this represents a total decrease in fifteen positions out of a total of thirty-five hourly and four clerical.

The implementation of this strategy will require a significantly different plant and equipment layout.

The document then sets out the "Alternatives considered", beginning with the expansion of Speers Road:

Alternatives Considered

1. Remain at present location.

This option was considered extensively and basically there were three drawbacks:

i) The current land available at the plant is on top of an old lime pond. As well, the City of Oakville has a beautification plan on Speers Road, which will affect us in how and where Linde can build. Both factors cause the construction costs of building the proposed facility to exceed 3 million dollars.

ii) Secondly, the new technology and approach will require signifi­cantly different work rules than those currently under contract at the 2393 Speers Rd. site. The operations group does not believe that the productivity gains will be available by remaining on the same site.

iii) Thirdly, there will be a major disruption of the current opera­tions during construction due to the location of the most desir­able building site.

The alternative is not recommended.

The other two alternatives are then set out, being to build a new facility off-site, or to lease an existing one. On the basis of up-front costs and the company's cash position, the document recom­mends the latter. And as for available properties, the document notes:

The proposed facility on Westgate Road is the only property available at the present time that consists of 4.1 acres of land. This facility is ideal and its location is considered to be a safe dis­tance from major highways and residential areas.

It is recommended that we proceed with this alternative.

The document then concludes with:

Financial Considerations

The key financial return on the property is the increase in plant productivity and the resultant labour savings. These labour savings are expected to be in the order of $550,000 per year. A complete economic analysis showing the changes in income streams, including capital invest­ments covered in a separate PBR are included in Appendix B.

The pertinent costs involved an outlay of some $950,000 for the purchase and installation of the new equipment (which would have to be borne no matter which of the options were selected), and for the Westgate lease option just over $3 million dollars in a 10-year gross lease commitment. The latter was less than the cost of new construction at either the existing or a new location, and of course is amortized over a ten-year period (including the cost of the leasehold improvements). At this point in time the approval that Mr. Johnston required before proceeding to make an Offer to Lease to the owners of 781 Westgate was that of the International Vice-President in Danbury, John Dobbins, and on May 7th the Property Budget Request was faxed to him, along with a couple of other costing pages. As that was being done, Mr. Johnston telephoned Mr. Dobbins directly, and outlined for him in more detail the thinking behind the request. Mr. Johnston called Mr. Dob­bins the next day to ask if he had any more questions after having seen the PBR, and Mr. Dobbins advised that he had already approved it. Mr. Dobbins then went on to ask about Mr. Johnston's plans for communicating the decision to the employees without delay.

20. From there took place the meeting in the middle of May with Mr. Sanders and legal counsel discussed above, and a timetable for meeting with the Union and employees was worked out. In the meantime, work proceeded on negotiating and finalizing lease arrangements with the landlord of 781 Westgate. The Offer to Lease was submitted to the landlord immediately following the approval given by Mr. Dobbins, and was accepted, subject to suitable language for the terms and conditions of the lease being worked out. The original deadline agreed to for doing that was May 31st, but as negotiations bogged down over certain items, it was extended a couple of times, before the company insisted that the negotiations be brought to a close not later than June 30th. In fact, the terms of the lease did finally get resolved on June 14th, with the lease document itself agreed to be signed on June 30th.

21. It will be recalled that it was on June 14th that the company first sat down with the vari­ous groups of employees to make its announcement about the move. At that point, it will also be recalled, the company advised the Union and the employee groups that the new location for the Packaged Gas operation would "in all probability" be in Oakville. Mr. Johnston testified that a week or so prior to that date he contacted his real estate people and inquired as to the status of the lease negotiations. He said that he was advised that they were still ongoing, and that he never did check back again closer to the announcement and meeting date. He testified that at lunch prior to those meetings with the employees on the 14th his managers raised the question of the status of the lease negotiations, and that he advised them that there was still no resolution. He then attended the employee meetings, and left on four weeks' vacation that night. He did, however, remain in touch with Mr. Sanders on the progress of the negotiations with the Union over the new collective agreement, and had read to him the Proposal document that was to be issued to the Union on July 4th to take back to the membership. Notwithstanding the fact that, as it turns out, the lease negoti­ations had been successfully concluded and the lease in fact signed, the last paragraph of that docu­ment, once again, read:

If the Union does not accept the conditions for voluntary recognition, preferential hiring, seniority recognition and the other improvements offered above at a new facility to be estab­lished in Oakville, the Company's offer is withdrawn and the Company will not be prepared to sign a Collective Agreement voluntarily recognizing the Union. Further the Company will locate its new facility at any place of its choosing without a Collective Agreement voluntarily recognizing the Union. We urge the Union to accept the Company's offer which provides opportunities and advantages not otherwise available.

(emphasis added)

Mr. Johnston testified that he was unaware when he approved that language that the lease for Westgate had actually reached the point that it did, and that because he was away on vacation with his family, he did not make any attempt to contact the real estate department to find out other­wise. He added that at that point in time it was "only the negotiations with the Union" that were on his mind.

22. That latter statement seems to be closer to the truth than Mr. Johnston may have intended. It clearly would have been no more difficult for Mr. Johnston to be in touch with the real estate department than with Mr. Sanders, or to have Mr. Sanders himself do that, had Mr. John­ston considered it beneficial to do so. But obviously, the company was in a better position vis-a-vis placing pressure on the employees to be able to imply in its proposal document that it had not yet committed itself to a location, and Mr. Johnston showed little interest in anyone, including him­self, being disabused of that fact. The dealings with the Union at this point in time are not, of course, directly relevant on the "bargaining" issue, having taken place well after the renewal col­lective agreement between the parties had been consummated. Nonetheless, this portion of the evidence is informative, as indicative of a company approach of keeping the management side effectively "in the dark" when it suited its purposes in dealing with the Union, and as a result, affording greater latitude in making statements to the Union that might otherwise have been more difficult to make. This, on balance, we find to have been the case during the critical time period of the February and March negotiations as well.

23. As the Board has frequently noted, the critical aspect about collective bargaining in a jurisdiction similar to our own is that, barring specific statutory exceptions, the Union's right to seek to engage in bilateral decision-making is confined to the "open period" between collective agreements, and before a deal has been struck which takes the parties into the time-frame of a new collective agreement. As the Board commented, for example, in the Westinghouse Canada case, [1980] OLRB Rep. April 577, at paragraph 39:

39. Collective bargaining during the prescribed "open period" is the preferred vehicle for estab­lishing terms and conditions of employment in this jurisdiction. With the exception of union rec­ognition and inter-union jurisdictional disputes the scope of matters which may be bargained to impasse in this jurisdiction, as contrasted to bargaining under the National Labour Relations Act, is virtually unlimited as is seen from the statutory definition of collective agreement. A col­lective agreement is defined in the Act as an agreement in writing containing provisions respect­ing terms and conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the employees and under section 14 of the Act the parties are required to bargain in good faith and make every reasonable effort to make a collec­tive agreement. Once an agreement is reached, however, the parties are bound to it for its stipu­lated term and are prohibited from engaging in economic sanctions during its term regardless of changing economic conditions or management initiatives. The restrictions placed upon a trade union in this regard are to be contrasted with the freedom allowed under section 152 of the Canada Labour Code, c. L-1 which permits a trade union to bargain to impasse about the effects of technological change occurring during the term of a collective agreement.

Thus, reasoned the Board:

…..can there be any doubt that an employer is under a section 14 obligation to reveal to the union on his own initiative those decisions already made which may have a major impact on the bargaining unit. Without this information a trade union is effectively put in the dark. The union cannot realistically assess its priorities or formulate a meaningful bargaining response to matters of fundamental importance to the employees it represents. Failure to inform in these circum­stances may properly be characterized as an attempt to secure the agreement of the trade union for a fixed term on the basis of a misrepresentation in respect of matters which could fundamen­tally alter the content of the bargain.

In using the term "decisions", however, the Board at the same time was mindful of the obvious extent to which such a "bright-line" test could invite manipulation by the employer. The timing of such decisions, therefore, or the employer's announcement of same, continue to be a matter of concern to the Board when following in close proximity to the consummation of what the employer professes to be a good-faith collective bargaining agreement with the Union. And that is why the Board in Westinghouse made it clear that in appearing to adopt actual "decisions" made by the corporation as the test for unsolicited disclosure, it had in mind when saying that what it described as de facto" decisions as well (see paragraph 41). As the Board put it in Consolidated Bathurst Packaging Limited, [1983] OLRB Rep. Sept. 1411, at paragraph 50:

…..plans and decisions to close a plant can effectively extinguish a bargaining unit and the rele­vance of the usual terms of a collective agreement. In this context, where a decision to close is announced "on the heels" of the signing of a collective agreement, the timing of such a signifi­cant event may raise a rebuttable presumption that the decision-making was sufficiently ripe during bargaining to have required disclosure or that it was intentionally delayed until the com­pletion of bargaining. It can be persuasively argued that the more fundamental the decision on the workplace, the less likely this Board should be willing to accept fine distinctions in timing between "proposals" and "decisions" at face value and particularly when strong confirmatory evidence that the decision-making was not manipulated is lacking. This approach is sensitive to the positive incentive not to disclose now built into our system, and the potential for manipula­tion.

24. All of the Board's comments cited above deal with the issue of "voluntary" or "unsoli­cited" disclosure. The Board has been quite deliberate, however, in distinguishing the situation where the company has to decide whether it is appropriate to raise something on its own, from that where the Union has shown sufficient interest in the topic to specifically make the inquiry at the bargaining table. In the latter case the Board in Westinghouse, also at page 39, wrote:

Having regard to the importance of the exercise, the requirement for full and open discussion, the scope of matters open to bargaining and the statutory framework which binds the parties to the terms of their agreement for its full term, can there be any doubt that the section 14 duty requires an employer to respond honestly when asked in bargaining if he is contemplating initia­tives of the type which have a real likelihood of significantly impacting on the bargaining unit.

Indeed, in the very course of concluding that the line should be drawn at "decisions" (however loosely defined) in the situation where there has been no inquiry put forward on the part of the Union, the Board went on as follows to comment upon the kind of "balancing" that it found neces­sary in arriving at that conclusion:

40. The more difficult question is whether there is an obligation on an employer to reveal on his own initiative plans which are not finalized at the time of bargaining but which, if implemented during the term of the collective agreement, would have a significant impact on the economic lives of bargaining unit employees. On one side the Board must be concerned with potential dis­tortion of the bargaining process by the imposition of an obligation which requires the employer to advise the union on his own initiative of plans which may never become decisions. On the other side, however, the Board must be sensitive to the purpose of the collective bargaining pro­cess and to the role of the trade union as exclusive bargaining representative of the employees who might be affected if these plans resulted in decisions being made by the company.

41. The competitive nature of our economy and the ongoing requirement of competent manage­ment to be responsive to the forces at play in the marketplace result in ongoing management consideration of a spectrum of initiatives which may impact on the bargaining unit. More often than not, however, these considerations do not manifest themselves in hard decisions. For one reason or another, plans are often discarded in the conceptual stage or are later abandoned because of changing environmental factors. The company's initiation of an open-ended discus­sion of such imprecise matters at the bargaining table could have serious industrial relations con­sequences. The employer would be required to decide in every bargaining situation at what point in his planning process he must make an announcement to the trade union in order to comply with section 14. Because the announcement would be employer initiated and because plans are often not transformed into decisions, the possibility of the union viewing the employ­er's announcement as a threat (with attendant litigation) would be created. If not seen as a threat the possibility of employee overreaction to a company initiated announcement would exist. A company initiated announcement, as distinct from a company response to a union inquiry may carry with it an unjustified perception of certainty. The collective bargaining pro­cess thrusts the parties into a delicate and often difficult interface. Given the requirement upon the company to respond honestly at the bargaining table to union inquiries with respect to com­pany plans which may have a significant impact on the bargaining unit, the effect of requiring the employer to initiate discussion on matters which are not yet decided within his organization would be of marginal benefit to the trade union and could serve to distort the bargaining process and create the potential for additional litigation between the parties. The section 14 duty, there­fore, does not require an employer to reveal on is own initiative plans which have not become at least de facto decisions.

(emphasis added)

It has always been the view of the Board, as Mr. Ublansky put it in other words, that the specific asking of the question by the Union "sharpens" the obligation to disclose (see, once again, Consolidated Bathurst, supra, at paragraph 43). And as a necessary addendum to that, the Board has also noted that it is part and parcel of the duty to bargain in good faith for the employer to ensure that it is sending "informed" representatives to the table as its negotiators. As the Consolidated Bathurst case itself stated, at paragraph 53:

Further, it is no answer that the company's negotiators knew nothing about the impending closing. The company has a statutory responsibility to send informed representatives to the bar­gaining table.

More recently, see for example Plaza Fiberglas Manufacturing Limited, [1990] OLRB Rep. Feb. 192 at paragraphs 27 and 28.

25. The Board has a number of problems with the posture adopted by Mr. Johnston in the present case. In the first place, while the ultimate parameters of the company's action were yet to be determined, there was a decision made in December, by Mr. Johnston at least, to implement technological change within the Oakville Packaged Gas operation. Those changes were fundamen­tal and sweeping, and it is apparent from the subsequent documentation that the productivity "sav­ings" being aimed for were expected to come from a substantial reduction in the size of the labour force. Mr. Johnston argued in cross-examination that that was not the lesson that could be drawn from the Varennes experience, for example, but all that his evidence demonstrates is that the reduction in staffing that would have been produced there was offset by the introduction of new products to the facility. There was no suggestion of any similar kind of offset on staffing levels ever being contemplated as part of the plan for Oakville (as the company's own internal documents make clear). Mr. Johnston's main argument for not disclosing, however, is the total uncertainty of whether anything that he might ultimately recommend to Danbury would be accepted as consistent with the direction in which Danbury was prepared to move with respect to that particular business. But the absence of a manager from Danbury on a permanent basis in Toronto did not prevent Mr. Johnston's superior from commuting, as Mr. Johnston testified, to Toronto from time to time; nor, obviously, would it prevent Mr. Johnston from maintaining contact with Danbury by way of trips of his own, or by telephone. Mr. Johnston impressed the Board as an extremely competent and efficient manager, and it is simply not credible that he would have proceeded to devote as much of his time, as well as that of a host of management individuals below him, without having obtained some kind of a "read" of the direction of current Danbury management with respect to the Pack­aged Gas operation in Canada. In fact, Mr. Johnston acknowledges that he asked that very ques­tion in the fall of 1990, when the decision was made to divest the company of its Packaged Gas Division in the United States. That there was support for maintaining and enhancing the presence of that Division in the Canadian market is further demonstrated by the initiatives and investments that were carried out in that same year in Varennes and Montreal. Nor is the amount of the invest­ment being contemplated here of particularly significant proportions, when viewed in the context of a huge multi-national operation like that of Union Carbide. Indeed, all of the uncertainty and lack of focus at Danbury about which Mr. Johnston testified at such great length seems oddly out of place with what it is that actually happened when the "Lease Proposal" ultimately was submit­ted to Danbury: Mr. Dobbins approved it within 24 hours. Mr. Johnston's explanation for that is that he "must have done a really good selling job" in the telephone conversation the previous day.

26. Nor do we find compelling Mr. Johnston's assertions that the focusing of the company's action on finding a new location rather than expanding Speers Road did not take place until well after the close of Union negotiations in March. The problems with the Speers Road plant, and with carrying out construction at Speers Road, were all known and identified in December, and there is no evidence of any activity continuing in that direction at all beyond that date. But we do not have to decide the issue as to whether the company's plans to relocate the Packaged Gas operation had become sufficiently ripe during negotiations for the company to have volunteered them to the Union at the bargaining table. Because the Union did ask the question. In terms of the Board's test in that kind of situation, we are prepared to accept Mr. Sanders' evidence that he did answer hon­estly. From what had been disclosed to Mr. Sanders himself, there was absolutely nothing out of the ordinary going on with respect to the overall operation at Oakville, outside of the "usual" kind of studies that he, and others, testified were constantly being carried out, and his answer clearly conveyed that. The fact that he confirmed that studies were going on at all, and that a variety of options were being considered, was not likely to allay any concerns that the Union might have completely, and it did not. The Union maintained their position on new "Closure" language until late in the bargaining, but in the end made the decision to drop it in the face of the information that they had, and in the interest of moving the negotiations toward a final settlement. However, the information that had been imparted to them by Mr. Sanders was incomplete and, we find, mis­leading, simply because the information that had been imparted to Mr. Sanders himself was of that quality. More specifically, the plans with respect to addressing the productivity problems of the Packaged Gas operation at Oakville by way of new technology, staff reduction, and a potential move of the operation were not, at the stage of the negotiations, simply on a par with the other "studies" that were going on around the plant, or that had been carried out on an exploratory basis in the past. Mr. Sanders should have been made aware of those facts, so that he would be in a posi­tion to fashion a response to the Union which, if and when it asked about things such as "any plans to relocate", could fairly and properly reflect that.

27. It is therefore the conclusion of the Board that the company has been in breach of its duty to bargain in good faith as well in this matter, and we will afford the Union the opportunity as requested to consider its position with respect to remedy, and to address that matter further to the Board should that be necessary.

DECISION OF BOARD MEMBER G. O. SHAMANSKI; May 29, 1992

1. With all due respect to my colleagues, I do not concur with the decision of the majority of the Board. I would not have found that the current collective labour agreement between the Energy & Chemical Workers Union Local 593 and Union Carbide Canada Ltd. extended the bargaining rights of this unit beyond the Speers Road's facility, and accordingly I would have dis­missed this application.