Ontario Secondary School Teachers' Federation v. The Essex County Board of Education, 1993 CanLII 7894

Ontario Secondary School Teachers' Federation v. The Essex County Board of Education

[1993] OLRB Rep. July 687

3095-92-U Ontario Secondary School Teachers' Federation, Applicant v. The Essex County Board of Education, Responding Party

BEFORE: Roman Stoykewych, Vice-Chair, and Board Members W. H. Wightman and K. Davies.

APPEARANCES: Eric del Junco, Donald A brash and William Reith for the applicant; L. P. Kava­naugh, A. M. N. Vannelli and Doug Fox for the responding party; Shelley Gagne, Christine McLeod, Chris Woodrow, Dave Bradt and Nhan Nguyen, interested parties.

DECISION OF VICE-CHAIR, ROMAN STOYKEWYCH AND BOARD MEMBER, K. DAVIES; July 19, 1993

11. This a complaint under section 91 of the Labour Relations Act. The applicant trade union alleges that the responding party employer, by virtue of certain measures it has taken in reorganizing its workforce shortly after certification had been granted, has breached sections 3, 15, 65, 67, 71 and 81 of the Labour Relations Act.

22. A hearing was held in this matter in Windsor, Ontario on April 27 and 28, 1993. The proceeding was confined to submissions with respect to a number of procedural issues raised by the responding party employer. The employer took the position at the hearing that:

A. the present application ought to be adjourned pending the resolution of the employee status issues that, it contends, underlay the dispute in this matter;

B. the application ought to be dismissed for want of particulars, or in the alternative, that further particulars ought to be ordered;

C. the application ought to be dismissed for lack of a prima facie case;

D. the applicant should shoulder the procedural onus and proceed first with its evidence should the application proceed.

33. After considering the submissions of the parties on these issues, the Board rendered oral rulings that determined the matters. As requested by the parties, and further to our decision issued on July 16, 1993, we shall now provide a description of those matters as well as our reasons for making the determinations in question.

44. The allegations of the trade union are set out in particulars that have been filed with the Board and with the employer. These may be summarized as follows. Following a representation vote, the trade union was certified by the Board on January 3, 1992 to represent those employees falling within the following bargaining unit:

all employees of the respondent in the County of Essex, save and except supervisors, persons above the rank of supervisors, director of education, supervisory officers, co-ordinator of care-taking, payroll accountant, health and safety officer, J.E.A.P. co-ordinator, executive secretary to the director of education, secretary to the secretary of business, assessment officer, manager of computer services, area supervisors, manager of administrative services, adult worker, man­ager of plant, benefits secretary, secretary to the manager of human resources, human resources secretary, persons regularly employed for not more than 24 hours per week, students employed during the school vacation periods, persons employed in a co-operative training program with a school, college or university and employees in bargaining units for which any trade union held bargaining rights as of November 5,1990.

Clarity Note: The following positions are excluded from the bargaining unit on the basis that they exercise managerial functions within the meaning of section 1(3)(b) of the Act:

i) Manager of Administrative Services

ii) Area supervisors

iii) Health and Safety Officer

iv) Co-ordinator of Caretaking

v) Assessment Officer

vi) Payroll Accountant

55. Although there was agreement during the certification proceedings as to the bargaining unit description, shortly after certification the employer initially took the position that three addi­tional positions should be excluded from the bargaining unit on the grounds that the incumbents were performing managerial functions. These positions were the "Co-ordinator of Community Relations", "Buyer", and "Purchasing Agent". The applicant denies that the duties performed by the persons in these positions are in fact managerial, and has taken the position throughout bar­gaining that they should remain included in the unit. In its pleadings the trade union details the employer's reorganization and the resultant changes of incumbency in the following terms:

At the date of certification, the position of Purchasing Agent was held by Bob Patterson. Subse­quent to certification, Mr. Patterson was promoted from Purchasing Agent to Manager of Pur­chasing and Warehousing, a position which the complainant agrees is managerial. The position of Purchasing Agent was renamed and became known as "Assistant Purchasing Agent." This position was filled by Christine McLeod, who had previously worked as a Buyer. The Buyer position vacated by Christine McLeod was filled by a new employee, Laurie Chalaepatta. The duties and responsibilities of the Buyer and the Assistant Purchasing Agent appear to be sub­stantially identical and both employees receive the same salary. There has been no change in the incumbency of the position of Co-ordinator of Community Relations since the date of certifica­tion. That position was and is filled by Chris Woodrow.

66. The applicant asserts that there have been no substantial changes in the job duties and responsibilities of these three positions since the date of certification. The applicant, in further par­ticulars filed with the Board in correspondence dated April 13, 1993, states that the above-noted Christine McLeod, now in the purportedly excluded position of Assistant Purchasing Agent, held the position of Vice-President of the bargaining unit, a fact which the applicant further asserts was obviously known to the respondent.

77. The applicant alleges that on December 15, 1992, the employer advised the trade union that it was unilaterally changing the salary and benefits of these three employees as of January 1, 1993, and that the basis for this action was its belief that the positions are managerial.

88. In further particulars dated March 12, 1993 and filed with the Board on March 16, 1993, the applicant made a number of assertions of fact with respect to a further reorganization of the employer's workforce. The trade union was advised by the employer on February 23, 1993, that three additional employees in the computer department would be reclassified as "managerial" and therefore would no longer be considered to be within the bargaining unit. Effective that date, David Bradt and Shelly Gagne-Deslippe would assume positions renamed "Software Analyst II", while Nahn Nguyen would become the "VAX Administrator". At the time, the employer asserted that these employees had been assigned supervisory duties over other employees such that they would properly be excluded from the bargaining unit set out above. The union denies this to be the case. Ms Gagne-Deslippe had held the union position of "Chief Negotiator" for the bargaining unit. The union asserts that she was advised by Douglas Fox, Superintendent of Human Resources, that she could not continue to exercise her functions as Chief Negotiator for the trade union as a result of the re-organization.

99. As noted above, the applicant alleges that the actions of the employer in the course of these reorganizations of the workforce contravene sections 3, 15, 65, 67, 71, and 81 of the Labour Relations Act. A statement of that position is set out in correspondence (over the signature of trade union counsel) dated April 13, 1993, which was filed with the Board in response to the responding party's request for further particulars. In that correspondence, counsel for the trade union sets out what might fairly be called the applicant's theory of the case:

As stated in the complaint, it is the complainant's position that the respondent's conduct as a whole in purporting to unilaterally exclude those positions from the bargaining unit has funda­mentally undermined the unit and the status of the complainant as bargaining agent. It is also the complainant's position that all of the respondent's dealings with these individual employees on an individual basis outside of the bargaining process is in violation of the Act and inherently intimidating and coercive, regardless of the subjective perception of the employees themselves. In short it is the complainant's position that the unilateral exclusion of these positions consti­tutes bargaining in bad faith contrary to section 15, interference in the administration of a trade union contrary to section 65, interference in the rights of employees contrary to section 3 and section 67, intimidation and coercion contrary to section 71, and a breach of the statutory freeze contrary to section 81. This position is obviously independent of any overtly oppressive conduct toward any of the 6 employees involved. Indeed, in these circumstances it is not surprising that the employees might be quite happy with their new-found "managerial" status, especially in light of the pay increases some of them may have received.

1010. The employer has filed extensive reply materials both with respect to the initial com­plaint filed by the trade union as well as to the further particulars filed in March. For present pur­poses it is unnecessary to quote these carefully drafted and detailed materials. It suffices to say that the employer denies the vast majority of the assertions of fact set out above, and vigorously dis­putes the legal conclusions that the applicant requests us to draw on that basis. Primarily, it is the position of the employer that the reorganization processes referred to above were undertaken for entirely legitimate organizational reasons, that it accepted the trade union s invitation to discuss these exclusions at the bargaining table, that the wage and benefits increases were instituted for the employees in question as a matter of automatic procedure after the trade union had declined to agree to a similar increase with respect to those employees covered by the bargaining unit descrip­tion. Finally, and underlying the employer's position in this matter is the assertion that all of the employees in question in fact perform duties that the Board has recognized in the past to be of a managerial nature, and that as a result, they are properly excluded from the bargaining unit. It denies that any remedy should be available to the trade union in this matter and requests that the application be dismissed.

A. Request for Adjournment: Deferral to Section 108(2) Procedure

1111. It was the employer's first position that the matter is more properly brought as an appli­cation pursuant to section 108(2) of the Act and ought not to have been processed as a section 91 complaint. For that reason, it was contended, the present matter ought to be adjourned pending the resolution of the determination of the aforementioned six questioned persons' "employee" sta­tus.

1212. Section 108(2) provides as follows:

If in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board is final and conclusive for all purposes.

1313. In his argument, counsel for the employer characterized the question of the employee status of the persons under consideration to be the "real issue" underlying the entire matter such that its resolution would be largely dispositive of the entire complaint. Counsel made a number of observations in this respect. He summarized his position in this matter by stating that the two forms of proceeding were "like oil and water". First, it was his submission that the procedure developed by the Board pursuant to its powers under section 108(2) was a comprehensive mecha­nism for the determination of status issues; counsel suggested that the mere availability of that pro­vision precluded the determination of employee status under other provisions of the Act. In this respect, it was explained that the reason why no such application had been brought by his own cli­ent to date was its belief, apparently no longer held, that the provisions of section 108(2) were applicable only to circumstances in which negotiations had actually commenced. Notwithstanding this apparent anomaly, it was argued that, in effect, the trade union was barred from proceeding with the section 91 application pending the determination of the employee status issues under sec­tion 108(2). At the hearing of this matter, it should be noted, counsel for the employer undertook to file on his client's behalf an application pursuant to section 108(2).

1414. Further, it was argued by employer's counsel that a determination pursuant to section

108(2) was in the nature of a preliminary question in this matter, since the sections of the Act that the trade union relies upon, with the possible exception of section 81, have no application to per­sons other than "employees". In light of this, counsel contended, if there was a finding that the persons in question were not "employees", then that determination would be entirely dispositive of most if not all of the complaint. As noted above, counsel undertook on behalf of his client to file an application pursuant to section 108(2). In the interim, however, he asked the Board to exercise its discretion to adjourn the present application.

1515. After hearing the parties' submissions, the Board retired briefly to consider that adjournment request. Upon returning, we advised the parties that the Board was not convinced that an adjournment was appropriate in the circumstances and that consequently, we denied the employer's request. We did so for the following reasons.

1616. In our view, the determination of employee status of the persons in question, although an issue that is likely to arise in the course of the litigation of this matter, is not likely to be disposi­tive of the issues before us. The allegations of the trade union go substantially beyond the single question of those persons' present employee status and address the reasons and motive for the employer's action that affected an alteration in that status, as well as the effect those actions may have had upon individual employees, on the one hand, and the integrity of the bargaining unit, on the other. A finding by the Board that the employees in question exercise managerial functions would not likely address those issues.

1717. Moreover, we do not accept the assertion of counsel for the employer that the language of section 108(2) precludes the litigation of unfair labour practice allegations in which employee status is or may be an issue. That position is contrary to the Board's practice and is not supported by the language of section 108(2). The Board has on numerous instances made determinations of an employee status pursuant to section 1(3)(b) of the Act in the course of unfair labour practice complaints, certification applications, termination applications and other proceedings. (See for example AAS Telecommunications, [1976] OLRB Rep. Dec. 751 and Simpsons Limited, [1989] OLRB Rep. May 513.) The difficulties in the employer's position in this respect became apparent during the course of argument, particularly in light of his client's position that an application under section 108(2) could be brought only after bargaining had actually commenced. These difficulties were highlighted by the further position taken by employer counsel that the relevant date for the Board's inquiries upon any such application would be the date upon which the examinations were actually held, not the date of the section 91 application, nor the date of filing of any forthcoming section 108(2) application. Consequently, counsel was driven, during the course of argument, to assert that there was a temporal gap (i.e., between the date of certification and the actual date of examination), purportedly intended by the legislature, during which time neither applications to examine for purposes of employment status nor section 91 complaints involving an issue touching upon employee status could be initiated. We cannot accept that the language of section 108(2) requires the Board to reach such an extraordinary result, especially in light of the discretionary lan­guage used in that provision. Nor can we understand how an undertaking to initiate an inquiry under section 108(2) would be even marginally useful when the relevant date of inquiry as to the duties would be many months, if not years, subsequent to the events of which the trade union com­plains.

1818. Similarly, the Board finds no merit in the argument that the provisions of the Act the trade union relies upon, being applicable only to "employees", would render the trade union's position in the section 91 complaint without foundation were the employer to be successful in a section 108(2) application. That the provisions relied upon by the trade union have application only to employees is far from clear. Moreover, it is not inconceivable that an employer could vio­late the Act by improperly assigning managerial duties. The employer's argument, in this respect, relies too much upon its own bootstraps, as it relies on the status resulting from the impugned action, rather than on the action itself. Yet, it is the essence of the trade union's allegation that the reorganization, in which precisely the duties upon which the employer purports to rely in its defence, were assigned in a manner motivated by bad faith, and with the effect of disturbing indi­vidual rights and undermining the authority of the trade union.

1919. Accordingly, we see nothing in the issues regarding the employment status of the per­sons in question that should prevent this matter being heard in the context of a section 91 applica­tion, and accordingly, we see no reason to exercise our discretion to adjourn the complaint under section 91 pending the resolution of an application under section 108(2).

B. Failure to Raise Prima Facie Case

2020. The employer argued that with the exception of the complaint as it relates to section 81 the facts as pleaded by the trade union did not raise a case to which it needed to respond. Thus, the employer requested that the Board exercise its discretion under Rule 24 of the Board's Rules of Procedure to dismiss the complaint.

2121. Rule 24 reads as follows:

Where the Board considers that an application does not make out a case for the orders or reme­dies requested, even if all the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing. In its decision, the Board will set out its reasons. The applicant may within twelve (12) days after being sent that decision request that the Board review its decision.

2222. During argument, counsel asserted that nothing that was advanced by the trade union in its pleadings could result in a finding of a violation of the various provisions for which remedies are sought. Indeed, it was the position of the employer that the allegations, as pleaded, were so lack­ing in substantial legal content as to constitute an abuse of the Board's processes. Thus, he stated that there were no material facts advanced to support an allegation with respect to undermining of rights to participate in a trade union (section 3); nothing in the pleadings referring to the content of the bargaining between the parties so as to ground an allegation of bad faith bargaining (section 15); nothing relating to interference in the administration or formation of a trade union (section 65); nothing with respect to employer interference with individual rights (section 67); and nothing with respect to coercion or intimidation (section 71). As noted however, the employer conceded that the facts, as pleaded, could constitute a breach of section 81 of the Act if they were proven to be true.

2323. By contrast, trade union counsel argued that the basic fact of the removal of all six posi­tions from the bargaining unit, after they had been specifically agreed upon as included during the certification process, is sufficient to trigger those provisions of the Act. In particular, it was argued that the employer's resort to "self-help" during the course of bargaining was tantamount to bar­gaining to impasse on bargaining unit description and thus, a violation of the good faith bargaining duties; that the direct dealings with bargaining unit members during the course of negotiations con­stituted violations of the Act; and that the actions of the employer in classifying the six positions as managerial, especially bearing in mind the trade union positions of two of the incumbents, had both the effect of discouraging or altogether preventing participation in trade union activities as well as undermining the authority of the trade union.

2424. In our view the pleadings presented by the applicant are not so deficient as to warrant dismissal of any parts of the complaint for lack of prima facie case. Rule 24 provides a mechanism by which the Board may avoid hearing applications that are entirely without merit and would have no chance of success even were the facts pleaded to be made out. Even then, however, the Board retains a discretion to refuse to dismiss an application on those grounds. Upon examination of the pleadings, and after careful consideration of the submissions of the parties, we decline to accede to the employer's request to dismiss the application on this basis. Moreover, notwithstanding the requests of the parties, we are unanimously of the view that it would be inappropriate at this stage of the proceedings to comment further upon the basis of our conclusion in this respect. The disclo­sure of the Board's reasoning at this stage would serve no purpose other than to provide the parties a "first inning score" with respect to the application. This is not an appropriate function of the Board's interlocutory proceedings. The Board notes, in this respect, that the requirement for writ­ten reasons set out in Rule 24 is restricted to circumstances in which the Board finds it advisable to dismiss the application. In the present circumstances, it is sufficient to say that with respect to each of the allegations, it is the Board's view that the allegations raised in the application are ones that raise an arguable case.

2525. Accordingly, we decline to dismiss the application on the grounds that the pleadings do not make out a prima facie case.

C. Adequacy of the Particulars

2626. It was the further position of counsel for the employer that the application should be dismissed for want of sufficient particularity, and in the alternative, that further particulars ought to be ordered. In this respect, counsel relied upon Rules 12(d) and 20, which provide as follows:

12. Any application filed with the Board must include the following details:

d) a detailed statement of all material facts on which the applicant relies, including the circum­stances, what happened, when and where it happened, and the names of any persons said to have acted improperly.

20. No person will be allowed to present evidence or make any representations at any hearing about any material fact relied upon which the Board considers was not set out in the application or response and filed promptly in the way required by these Rules, except with the permission of the Board. If the Board gives such permission, it may do so on such terms as it considers advisable.

2727. Here again, counsel professed a virtually complete lack of understanding of the allega­tions that were being levelled against his client. Accordingly, the thrust of his argument was to the effect that the pleadings were so wanting in particularity as to make it impossible for his client to understand and therefore prepare for the case against it. Consequently, it was urged upon us to exercise our discretion and to dismiss the application. In the alternative, it was argued that the applicant should be ordered to provide fuller and better particulars. It is noteworthy that aside from making reference to the absence of material facts raised by the applicant with respect to the bargaining in so far as it relates to the complaint pursuant to section 15, the employer did not spec­ify in what respect the particulars were deficient; the position apparently taken was that the partic­ulars were entirely lacking in particularity. Accordingly, the Board was left with no indication as to what specific difficulty was encountered by the employer as a result of the purportedly deficient particulars.

2828. During the course of argument, counsel for the trade union stated that his client had already pleaded all the particulars it had in its possession, and that its entire case lay in the facts that had been set out in its pleadings. With respect to the bad faith bargaining complaint, it was stated that no reliance will be placed upon the actual bargaining, but rather, upon the "self-help" carried out before bargaining even commenced. He indicated that his client was prepared to pro­ceed on the basis of the facts pleaded and submitted that the employer's motion ought to be dis­missed.

2929. After reviewing the submissions of the parties, and after examining the materials before us, we determined that the pleadings, insofar as they make assertions of fact and allegations of breaches of the Act, are pleaded with sufficient particularity so as to satisfy the requirements of the Rules set out above. In addition, in our view they are pleaded with sufficient particularity so as to permit the employer to prepare its case. Each of the material facts upon which the trade union intends to rely is referenced to a specific circumstance in which they arose, and on the whole, they present a sufficiently clear picture of the applicant's position so as to give rise to an understanding of the factual basis upon which the applicant rests its case. Insofar as the issue of lack of particulars concerning the bargaining history is concerned, we are of the view that this is a matter more ger­mane to the issue of the legal substance of the allegation, rather than to the presence or absence of particulars, and has been dealt with above. Otherwise, we are not prepared to enter into a detailed analysis of the adequacy of the particulars as they relate to specific circumstances, particularly in light of the employer's failure to do so during the course of his argument in this respect.

3030. Counsel for the trade union was expressly given the opportunity to present further par­ticulars, but declined to do so. Accordingly, while we are prepared to permit the pleadings in their present state to be the basis of this proceeding, that opportunity for further disclosure may well be of significance in the event that the trade union wishes to present further material facts that during the course of the hearing it could have disclosed at that time. If the trade union seeks to raise material facts that were not properly put before the Board in its pleadings, the employer may of course renew its objections pursuant to Rule 20 of the Board's Rules of Procedure.

3131. Accordingly, we ruled that the application was pleaded with sufficient particularity, and accordingly, dismissed the employer's motion on these grounds.

D. Order of Proceeding

3232. Counsel for the employer argued that the trade union ought to proceed first with the presentation of its evidence. Employer counsel's primary argument was to the effect that there were no allegations properly before the Board that attracted the reverse onus provisions of section 91(5) of the Act. In this regard, counsel repeated his argument that the provisions of the Act have no application to any of the present circumstances, save the allegations under section 81, given that the persons complained about were not employees under the Act. That argument has been addressed above. In addition, counsel repeated his argument that there was no prima facie case with respect to any allegation other than those relating to section 81 of the Act. The result of both or either of these arguments, he asserted, was that the reverse onus provisions of section 91(5) do not have application to the matter before us since, he asserted, the remaining allegations before us do not attract the reverse onus provisions. Accordingly, he contended that there was no basis upon which to displace the general principle that the party who alleges bears both the procedural and legal burden of proof. Indeed, it was vigorously argued that the making of such an order in this case would amount to a monstrous injustice, since it would permit the trade union to make out its case in cross examination.

3333. After hearing the submissions of the parties, and recessing to consider the matter, a majority of the Board, with Board Member Wightman dissenting, ruled that in the circumstances of this case, the employer should proceed first with evidence as to all of the allegations raised by the applicant. We now provide reasons for that ruling.

3434. Section 91(5) reads as follows:

On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.

3535. The language of that provision clearly indicates that in instances where there is an alle­gation of improper treatment of individuals by employers as to their employment, opportunity for employment or conditions of employment, the employer bears the legal burden of proof with respect to the disproof of those allegations (The Barrie Examiner, [1975] OLRB Rep. Oct. 745). The customary allocation of the burden of proof remains in place in those instances where section 91(5) does not have application.

3636. The Board has on numerous occasions had the opportunity to consider the issue of the order of proceeding where, given the restricted application of section 91(5), there is a "mixed" legal onus with respect to allegations brought under various provisions of the Act. It is a general principle, accepted at the hearing by both the employer and the trade union, that the party that is required to proceed first in a mixed onus case will be required to proceed with all aspects of the case, irrespective of the placement of the legal burden of proof. Thus, the party that proceeds first will be required to adduce as part of its evidence in chief evidence on all of the allegations, and not just on those concerning which it bears the legal burden of proof. (See, for example, Craftline Industries, [1977] OLRB Rep. April 246; Wilco-Canada Inc., [1983] OLRB Rep. January 165; Domtar, [1982] OLRB Rep. July 993.) As indicated in Canadian Pizza Co. Ltd., [1983] OLRB Rep. June 872, the Board is unwilling to allocate the procedural onus strictly on the basis of the legal onus in light of the difficulties involved in staging what would in effect be a four-stage pro­ceeding.

3737. Although the Board was initially reluctant to order an employer to proceed first in cir­cumstances where all of the allegations did not attract the reverse onus provisions (Crafiline, supra), nonetheless, the law is clear since Domtar, supra, that the Board possesses a discretion to order its proceedings in this respect. The considerations that the Board has utilized in making such a determination include the proportion of the overall evidence that will be related to employer conduct alleged to be contrary to the Act as stipulated in section 91(5); the extent to which the allegations that do not attract the reverse onus provisions are integrally related to those that do so attract the provisions of section 91(5); and whether the facts alleged by the applicant are peculiarly within the knowledge of the employer; whether procedural difficulties, including substantial embarrassment to the employer, would arise were the employer to be required to proceed first. (See for example Domtar, supra; Canadian Pizza, supra.)

3838. The Board's reasoning in Domtar is particularly instructive with respect to the present circumstances. In Domtar, the applicant alleged that the employer instituted layoffs for anti-union reasons (to which the Board concluded section 91(5) was applicable), as well as failed to advise the trade union of its decision in this respect during the course of bargaining (to which the Board con­cluded section 91(5) was inapplicable). The Board concluded that the respondent should proceed first with respect to all the allegations made, not just the ones in respect of which it bore the legal burden. After noting that the bulk of the evidence would relate to matters to which section 91(5) applied, the Board's exercise of its discretion was expressed in the following manner:

9.... The section 15 allegation is integrally related to the other fundamental and primary allega­tions. We are not of the view that the case is one primarily relating to bargaining conduct nor can we conclude that the other sections of the Act were relied upon simply to achieve the employer proceeding first on the section 15 allegation. All the allegations involve many common factual features; we see no substantial embarrassment to the employer if it is required to pro­ceed first; and much of the allegations involve matters primarily within the employer's knowl­edge.

3939. Similarly, in Canadian Pizza supra, where the issue was the order of proceeding in a mixed onus case involving an allegation pursuant to what was then section 8 of the Act, the basis of the decision to require the employer to proceed first was formulated in the following manner:

7. ... In these circumstances, the bulk of the evidence heard by the Board will be in respect of employer conduct which is alleged to be contrary to the Act as to the employment, opportunity for employment or conditions of employment of the employees affected. The employer bears the legal burden of establishing that he did not act contrary to the Act when this type of allega­tion is made. In addition, the facts as to why the employer acted as he did lie peculiarly in the knowledge of the employer. It is to be observed as well that in a number of section 8 [now sec­tion 9.2] cases that have been consolidated with section 89 [now section 91] complaints trigger­ing the reverse onus, where the union proceeded first, the Board has found itself in the difficult position of having to make some very difficult determinations as to the proper scope of reply evidence. In this case, the applicant union alleges that 11 employees of the respondent have been laid off because of their support for it. In addition, the applicant claims that a number of threats with respect to the continued employment of the trade union supporters have been made. Having regard to the nature of the section 89 compliant, the employer bears the legal burden under section 89(5) of establishing that he did not act contrary to the Act. The bulk of the evidence will be in respect of the section 89 allegations and these allegations are the central focus of this matter. In these circumstances, we have been convinced that we should direct the employer to proceed first.

i.) Proportion of Evidence Governed by Section 91(5)

4040. In the view of the majority of the panel of the Board, the significant bulk of the evi­dence that will be led in the present application will relate to matters governed by section 91(5). The circumstances surrounding the reorganization, including its purpose, motive, and effect, con­stitute the core factual issue that is before us. Although the issue of employment status per se is not dispositive of all the issues before us, nonetheless, it is our view that the central factual basis of the trade union's application in its entirety is the employer's decision to alter the employee status of six persons in its employment in the period subsequent to certification. On the assumption (made for the purposes of this ruling) that the applicant's pleadings are true, the employer's actions in so doing can fairly be termed an alteration of the employees' terms and conditions of employment that is, arguably, treatment contrary to the Act. For this reason, we are of view that these allega­tions, which are central to the applicant's case, could attract the application of section 91(5).

4141. It should be noted that our primary reference is to the factual basis of the allegations that have been raised, rather than the sections of the Act that have been pleaded. In this respect, we do not accept the suggestion by counsel for the employer that the reverse onus provisions of the Act do not apply to allegations made under sections 15 and 81 of the Act per se. Although the Board may initially have restricted the application of that provision to sections of the Act that expressly enumerate individual employee rights, (Craftline Industries, supra, par. 2) the Board has subsequently made it clear on a number of occasions that the provisions of section 91(5) are not restricted in their application to allegations made under provisions of the Act pertaining to improper or illegal treatment of individuals. In Domtar the Board found that allegations made under what is now section 65 of the Act could attract the effect of the reverse onus provisions of the Act notwithstanding the absence of language in the provisions of 65 that speak of individual, as distinct from union rights. Rather than first looking to the section of the Act that is being alleged to have been violated to determine the applicability of section 91(5), the Board will "factually" assess the allegations made pursuant to those sections to determine whether the allegations trigger the provisions of section 91(5). (Domtar, supra, par. 7.) Similarly, in Wilco-Canada Inc., [1983] OLRB Rep. Jan. 165 the Board further opined that there is nothing to prevent the reverse onus provisions attaching to allegations involving the violation of the statutory freeze provided that the factual basis of the union's case is that terms and conditions of employment of employees or a group of employees are altered in a manner that is contrary to the Act. (See also Polish Alliance Friendly Society of Canada [1984] OLRB Rep. Feb. 349 par. 15.)

4242. Given our focus on the factual basis of the allegations, it is unnecessary to determine at this point the extent to which the reverse onus provisions of the Act apply to the specific allega­tions made by the trade union. It is sufficient at this point to note that the factual basis of the alle­gations regarding at least one of the sections of the Act pleaded, (namely, section 67) clearly falls within the ambit of section 91(5), and that the facts giving rise to that allegation encompass the entire process of re-organization as described above. The Board declines to make a ruling at this juncture concerning the applicability of the reverse onus provisions with respect to the allegations pursuant to sections 15 and 81. Counsel may address the issue of the location of the legal burden of proof with respect to those allegations in final argument.

ii.) Remainder of the Allegations

4343. The remainder of the allegations of fact in the trade union's pleadings is either integ­rally related to, or largely ancillary to the facts concerning the matters that do attract the reverse onus provisions of the Act. To the extent that other factual issues arise which may not be covered by the provisions of section 91(5) (such as the disparate treatment of bargaining unit employees compared to the treatment of the six reclassified employees, and more generally, the facts related to the bad faith bargaining issues advanced by the union), they are in our view collateral to the central factual issue concerning the circumstances, motives, and effects of the reassignment of the six persons in question.

iii.) Employer has Peculiar Knowledge of Circumstances

4444. Moreover, given that the core allegations relate to the employer's decision to change the alleged status quo shortly after the certification, the employer is in a peculiarly advantageous position to address, assess and present such evidence. Although this would necessarily entail the employer leading evidence in chief with respect to matters concerning which it may not shoulder the legal onus, in our view the employer's access to this information would substantially facilitate the efficient litigation of this matter if it proceeds first.

iv.) Procedural Prejudice Created by Requiring Employer to Proceed First

4545. Finally, we are not convinced that requiring the employer to proceed first with its evi­dence would create such a hardship upon the employer as to override the other considerations mili­tating in favour of such a procedure. Counsel for the employer did not raise any specific form of prejudice, such as the unavailability of witnesses, the irretrievable loss of evidence, the inherent unknownability of the evidence, etc., that his client may encounter as a result of proceeding first. Rather, the submissions at the hearing were largely based upon its contention of a complete lack of understanding of the legal and factual basis upon which the trade union advances its case. In this respect, we have ruled that the trade union has presented a prima facie case with respect to each of its allegations and that its particularization of those allegations is sufficient to permit it to proceed with its case. Accordingly, we do not consider these to be factors giving rise to significant preju­dice. Counsel for the employer also made reference to the general unfairness created by requiring the party accused of unfair labour practices to proceed first, thereby allowing the applicant the opportunity to build its case in cross-examination. In our view, to the extent that the Act provides a reverse onus, the Legislature clearly intended a responding party to proceed first with its evi­dence, with the inescapable consequence that the applicant might therefore be enabled to make out some or all of its case in cross-examination. As indicated above, the substantial majority of the allegations concern matters covered by section 91(5), and to the extent that the applicant is in a position to make out its case in cross-examination, this would appear to be specifically contem­plated by the Act. Even here, however, the scope of cross-examination will not be entirely unbri­dled so as to allow the applicant an unfair advantage. Aside from the application of the general rules of evidence restricting the scope of cross-examination, such as the collateral evidence rule, the applicant may be restricted from raising in cross-examination factual matters that have not been pleaded in its application and that do not otherwise arise in the evidence led by the employer. (In this respect, see Morrison's Meats Packers Ltd., [1993] OLRB Rep. Mar. 226)

4646. Finally, any disadvantage occasioned by being required to proceed first in this proceed­ing is ameliorated to a considerable extent by the acquisition of the right to present reply evidence. Although we have ruled that the pleadings of the applicant are sufficient both with respect to the legal and factual content, we note that the basic theory of the case presented by the applicant may raise issues that are novel. In light of this, at the hearing we informed the parties that the employer would be provided with ample scope for reply to evidence presented by the applicant should the employer be surprised by the nature or the direction of the applicant's case. In such an event, the parties may seek further rulings from the Board on the matter.

4747. Accordingly, subject to our determination of those matters set out in our decision of July 16, 1993, the hearing will commence on the next scheduled hearing date with the employer presenting its evidence first on all aspects of the case.

DECISION OF BOARD MEMBER W. H. WIGHTMAN; July 19, 1993

Notwithstanding our ruling with respect to particulars, given the board nature of the allegations I would have required the applicant to lead evidence first.