Canadian Union of Public Employees, Local 94 v. The Corporation of the City of North York, 1995 CanLII 9933

[1995] OLRB Rep. September 1170

3042-94-U Canadian Union of Public Employees, Local 94, Applicant v. The Corporation of the City of North York, Responding Party

BEFORE: Judith McCormack, Chair.

APPEARANCES: N. L. Jesin, A. Dale, B. Cochrane and N. MacKenzie for the applicant; Donald B. Jarvis, Evan Howard and Alan Wolfe for the responding party.

DECISION OF THE BOARD; September 19, 1995

1. On the agreement of the parties, the name of the responding party is amended to read:

"The Corporation of the City of North York".

2. This is an application under section 91 of the Labour Relations Act in which the applicant union alleges that the responding employer has violated the Labour Relations Act. The gist of the union's complaint is that the City of North York took certain steps in response to an arbitration award at least in part to intimidate employees and their union, to retaliate against them, and to circumvent the effect of the award. These measures included refusing to reinstate a grievor, contracting out certain services, a hiring and purchasing freeze, the removal of an employee representative from one of the City's health and safety committees, and extensive attacks on the union by the Mayor in the media.

3. It is useful to make it clear at the start what this case is not about. The Board has not been asked to decide whether the City of North York has the right under normal circumstances to engage in activities such as to contracting out any of its services. Rather, there was no dispute that matters such as this would be normally governed by the collective agreement, the applicable arbitral caselaw and so forth. However, there are activities which may be lawful if done for the right reasons, and unlawful if they are illegally motivated. In this case, the issue before the Board is not whether the City would be generally entitled to conduct itself as it did, at least with respect to contracting out and freezing hiring and purchasing, but whether it did so to punish employees or their union for exercising legal rights, to intimidate them into refraining from exercising those rights, or to circumvent the effect of such rights. If the City was acting for those sorts of reasons, then its activities would violate the Labour Relations Act.

I. The Facts

4. These events date back to July of 1993 when Bernard Curtis, a labourer in the City's Public Works Department who was working as a garbage truck driver/loader was discharged. At that time, the City alleged that he had sold $100.00 worth of hashish in the workplace. The union filed a grievance, and took the case to arbitration. After a nine day hearing, an arbitrator determined that Mr. Curtis should be reinstated with a suspension of eighteen months and subject to certain conditions involving addiction rehabilitation and periodic drug testing. Mr. Curtis also eventually pleaded guilty to criminal charges of possession and trafficking.

5. There was considerable debate about the arbitration award during the course of these proceedings, much of which was not particularly useful with respect to the issues before me. Suffice it to say that the arbitrator considered the evidence before him in exhaustive detail, that there were significant issues of credibility on which he was required to reach findings, that the City's own approach to substance addiction played a significant role in his conclusion, and that an application for judicial review of the award was dismissed by the Divisional Court. Nowhere is it suggested in the award that using or selling drugs in the workplace is appropriate conduct for employees.

6. In any event, it was clear that the City took great exception to the award. It is worth noting that in making the findings of fact which follow, I have relied primarily on the evidence of the City's witnesses.

7. The City received the award on Thursday, November 10, 1994. The next day was a holiday, and there was some difference of opinion in the City's Human Resources Department as to whether the Mayor should be told about the award or not, at least until after the election which was to be held the following Monday. However, Alan Wolfe, the Commissioner of Public Works for the City, read the award over the weekend and spoke to the Mayor on Sunday. He testified that on his recommendation, he and the Mayor agreed to initiate consideration of contracting out of certain parts of the Public Works Department's activities. They also agreed that it did not make sense to hire employees and purchase equipment while they were considering contracting out, although as it turns out there has been at least one employee hired and some purchasing since then.

8. On the Monday following the weekend, the City issued the following notice to the union:

Re: Contracting Out of Public Works Services

This is to notify you that the Public Works Department intends to recommend to Council the contracting out of the following services:

1. Garbage Collection for Solid Waste West (Ingram)

2. Household Blue Box Recycling

3. Apartment Recycling

4. Apartment Garbage Collection

5. Grass Cutting

6. Sidewalk Snow Clearing

7. Emergency Response for After Hours Sewer and Watermain Repairs

This is so provide you with the required notice under the Collective Agreement. Please prepare any proposals within the time allocations established within the Collective Agreement.

9. The collective agreement between the parties stipulates that such a notice be given before there can be contracting out. The Ingram yard is one of three yards involved in solid waste collection. The other yards were not the subject of the contracting out notice. Mr. Curtis works at the Ingram yard. Mr. Wolfe told the Board that it was the Curtis award that had precipitated the issuance of the contracting out notice.

10. On the same Monday, Mr. Wolfe called all the directors and superintendents together and told them that the City would be taking every legal step it could to have the award reversed, and that it was considering contracting out as a result of health and safety concerns relating to the award. The union alleges that on Monday as well, George McClusky, the superintendent of the Bermondsley yard, told employees in the Bermondsley yard that they had cut their own throats with the Curtis award and that it was just a matter of time before their jobs would be contracted out. Mr. McClusky denied making such a statement and testified that he did not talk about the arbitration award with employees, although he did talk about an article in the paper which addressed contracting out because of an employee's drug conviction.

11. The following day, Bruce Shaw, Co-Chairperson of the City's Joint Health and Safety Committee, David Beatty, the Safety Supervisor for the Public Works Department, and Mr. Wolfe met and discussed the award. Mr. Wolfe expressed the concern that the award would have an adverse effect on substance abuse in the workplace and that the best way of dealing with it would be a Joint Health and Safety Committee meeting. He said that he would like the meeting to happen as soon as possible and would allow employees time off work for the meeting. A special meeting of the Joint Health and Safety Committee was then scheduled for the following day. It was undisputed that such a special meeting had never been called before, even where fatalities had occurred.

12. Mr. Shaw opened the meeting by saying that it was confidential and that no minutes would be kept other than the recommendations that the Committee put forward. This was an unusual course of action as well. Mr. Shaw then told the meeting that Mr. Wolfe wanted the Committee to discuss the effect on the workplace of reinstating a drug trafficker, and some discussion of the arbitration award ensued.

13. Ron McDonald, an employee member of the Committee, objected to such discussion as being inappropriate and said that he would have to leave the room if the award was discussed. Because the conversation circled around to the award several times, Mr. McDonald made similar comments on three occasions. At one point Ross Petrini, the Fleet Manager for the Public Works Department and a management member of the Committee, advised the Committee that Mr. Wolfe was mad because of the recent arbitration decision and that he was talking about contracting out all of the garbage collection because of the decision. Mr. McDonald objected to this remark as well.

14. Mr. Petrini told the Board that Mr. Shaw gave an overview of the Curtis award at the meeting. He denied, however, that the Committee was asked to say that the award was wrong, in contrast to Mr. McDonald's testimony. Nevertheless, the Committee reached agreement on the following three recommendations:

This Committee does not condone and never has condoned the use of drugs and alcohol in the workplace.

We recommend a joint venture between Union and Management to implement a more progressive system to recognize and dealt with substance abuse.

The result of any arbitration findings is not within the jurisdiction of this Committee to agree with or refute.

(emphasis added)

15. After the meeting, Mr. Wolfe became aware that Mr. McDonald had objected to discussing the arbitration award. It also came to Mr. Wolfe's attention that Mr. McDonald was an alternate member of the Committee, and that Tony Tucci was the regular representative. Both were present on November 16, 1994. Mr. Wolfe decided that the City would allow only one to be present in the future, although he did not decide which one. Tony Garafolo, a superintendent, told Mr. McDonald about two weeks after the meeting that word had come down from upper management that either he or Mr. Tucci could attend the meetings, but not both. Mr. Wolfe did not take action on the joint venture recommendation made by the Committee because he felt that it would not work.

16. Subsequently, the Mayor made a number of strong statements to the media about the award and the union. The parties agreed that the media accounts of both the descriptions of his views and his quoted statements were accurate. The following are excerpts for those accounts.

17. An article in the Toronto Star on November 17, 1994 headed "Lastman Revives Garbage Debate" included these paragraphs:

Mayor Mel Lastman served notice during his election victory party Monday night that the city may contract out garbage collection to private companies.

The proposal has popped up during previous council meetings but has been turned down.

What concerned Lastman on an evening when he might have been celebrating his massive victory was a recent arbitrator's ruling that forced the city reinstate a works department employee who was caught allegedly selling $100 worth of drugs.

"The police caught him red handed," Lastman said. "The union appealed it and the arbitrator said we had to hire the guy back."

Lastman said he is asking for a judicial review as well an investigation by the provincial labor ministry.

And he said he is going to look into farming out waste collection, "because if the union wants us to keep hiring drug users and drug pushers, I have no use for the union."

He said he will ask council next month to look into contracting out some services.

"And in the meantime, there will be a freeze on hirings and vehicle purchases."

18. On CR170 News on November 23, the Mayor is described as making these comments:

North York Mayor Mel Lastman is fuming over a labour decision he says forces him to keep drug traffickers on the City payroll.

"There's a million people out there looking for work. I don't have to keep drug traffickers working here at North York."

North York Mayor Mel Lastman says he's had enough of unions. A provincial arbitrator says the City must give a sanitation worker back his job even though the worker was convicted of drug charges while on the job.

"This is crazy. This union, this management of the union, Local 94, are working in the past and they've got to come up to speed. They're defending drug pushers.'

19. On November 24, 1994, the Toronto Star ran another story titled "Lastman Takes Steps to Privatize Garbage" which included the following paragraphs:

North York is taking the first steps toward contracting out garbage collection.

This comes in the wake of a recent arbitrator's order for the City of North York to rehire an employee convicted of possession of drugs.

Mayor Mel Lastman has asked works commissioner Alan Wolfe to get prices from companies for waste collection, including:

• One-third of curbside pick-ups.

• The remaining one-quarter of apartments. Three-quarters of apartments in the city now have their garbage collected by private contractors.

• All recycling.

Last year, the works department received a letter from an employee in one of the city's yards expressing concern about his safety because there was some drug use and selling going on, Wolfe says.

An undercover police officer arrested a worker and charged him with possession for the purpose of trafficking.

The man pleaded guilty to a lesser charge of simple possession, Wolfe says. He received 12 months probation and was ordered to do 40 hours community work. Then the arbitrator ordered the city to re-hire him.

The man has not yet asked the department about coming back to work, Wolfe says.

"This is crazy," Lastman said. "The guy was driving a garbage truck. I don't want a guy, driving 10 tonnes of garbage in one of our vehicles, who is a drug trafficker."

The city wants a judicial review of the arbitrator's decision, he said.

Lastman says he will formally ask city council next month to study contracting-out of some works department services.

"And in the meantime, there will be a freeze on hirings and vehicle purchases," he said.

There are 150 workers involved in collecting waste and Wolfe doubts privatizing would mean layoffs.

20. The following day in the Toronto Sun, an article headed "Dealer is Out, Mel Says" contained these paragraphs:

North York Mayor Mel Lastman is just saying 'no' to a union demand that the city rehire a trash worker nabbed drug trafficking on the job.

And the outraged mayor believes the latest showdown with garbage collection labour bosses could push in a privatized system within 60 days.

"No. . . way — the guy was charged and convicted and we're not about to hire back drug traffickers to drive around 30-ton garbage trucks," he said of a provincial arbitrator's ruling the fired worker be put back on the job.

The trash collector was nabbed by an undercover drug officer in June 1993, after the five-year city employee handed over $100 worth of hashish while at work.

Lastman, who is calling for a judicial review of the arbitrator's decision, said the city is getting quotes on private haulers and could privatize one-third of collections and all recycling work.

21. Another story in the Toronto Star on December 1 with the headline "Lastman Warns Union to Halt “Nonsense Grievances"' contained the following excerpts:

North York will look at more than contracting out garbage collection if the union doesn't stop fIllng "nonsense grievances," Mayor Mel Lastman says.

Still seething from a recent arbitrator's decision that told the city's works department to rehire an employee convicted of drug trafficking, Lastman said he may look at other areas to privatize to cut taxes.

"There could be more, because if they're (the union) going to push us, we're not going to sit still because we cannot keep raising taxes. And we're not going to keep hiring more people."

The employee was charged with possession, trafficking and possession for the purposes of trafficking hashish, but pleaded guilty to simple possession and trafficking.

A labour ministry arbitrator ordered the works department to reinstate the worker and the city plans to ask for a judicial review of the decision.

Meanwhile, Lastman will ask city council to look into privatizing garbage collection, including one-third of curbside pick-up, the remaining one-quarter of apartment collection not picked up by private contractors and all recycling.

"I have never, never talked privati.zation before," he said. "Other members of council have, but the words have never come from my lips before.

"I'm prepared to go ahead with this if the union doesn't start moving. And I'm not hiring back drug traffickers."

Lastman said he's also bothered by what he calls nonsense grievances from union management.

One city official projected that 100 grievances will be filed by Local 94 of the Canadian Union of Public Employees by Dec. 31.

Lastman said the union complained when the city sent out one person to pick up a dead skunk, instead of two people.

"We want to plant a $32 tree but we can't just send a truck driver to plant it," he added. "They (union management) want us to send three people to plant it."

He also said that a caretaker in a community centre can clean a toilet, but can't change a light bulb. He must call in a handyman.

"We can't operate this way any more," he said. "All they do is grieve and grieve and they have us in front of the arbitrators constantly. And we're fed up with it."

22. The North York Mirror printed the following article in its weekend edition on November 19 and 20th titled "Lastman Fuming After Drug Dealer Gets City Job Back":

An arbitrator's decision to hand a North York sanitation worker back his job after he was convicted of dealing drugs could lead to the privatization of garbage collection, Mayor Mel Lastman warned.

"We're going to appeal it," fumed an angry Lastman at his election night victory party Monday. "I'm going to put a freeze on all equipment purchases, and I'm going to look at hiring out. If the unions want us to have drug-users on the job, I want no part of the union."

Lastman said he's also asking for a judicial inquiry into the provincial arbitrator's decision requiring the city to hire back the worker, who was arrested in June of 1993 following a police investigation of the city's works department at Lastman's request.

According to Works Commissioner Alan Wolfe, an undercover investigator purchased $100 worth of hashish from the employee, and charged him with possession of a narcotic for the purposes of trafficking. In court, the employee plea-bargained down to simple possession.

But the provincial arbitrator, who rendered his decision the previous week, didn't buy the police officer's testimony and ordered the city to reinstate the employee, who had been working as a driver on one of the city's fleet of garbage trucks.

Wolfe said the arbitrator's decision will make it more difficult for the city to ensure safety for both its employees and the public.

"This work can be very dangerous," said Wolfe. "I'm sure there are more injuries tabulated for garbage trucks than there are in police cars.

And he was critical of the union for bringing the matter to arbitration in the first place.

"We're not saying they should not look at injustices, but whenever there's a problem they don't have to take everything to arbitration."

But CUPE Local 94 President Brian Cochrane said the union was simply fulfilling its obligations.

"If he's upset, the reality is that we have an obligation under the collective agreement to represent our members, and we fulfilled that obligation," said Cochrane. "The city put their case forward, we put our case forward, and the arbitrator rendered a decision. That decision puts this person back to work - but this guy's been off the job for 18 months, and that is a significant penalty to impose on someone.

Lastman said he will bring forward the move to privatize garbage collection to council in December.

23. In its December 3-4 edition, the Mirror ran a story which included the following paragraphs:

Negotiations on the [reorganization] plan, which would alter the City's collective agreement with its workers, resumed last week. But Lastman said the plan is the only way the City can restructure to deliver services in a cost effective way.

"Right now one of our zamboni drivers cleans rinks but he can't change a lightbulb," said Lastman. And most of their members would get a raise. Yet their leaders are making it impossible."

Lastman's promise to privatize comes on the heels of a successful appeal by the union that required the city to hire back a worker who was convicted of trafficking and possession of marijuana while on the job driving one of the city's garbage trucks.

The city is calling for a judicial review of the arbitrator's ruling, and Lastman has asked the works department to explore privatization of garbage collection.

"Fighting for drug traffickers is nuts," said Lastman. "Who's going to watch this guy when he comes back?"

But in a press statement issued November 29, CUPE leadership accused Lastman and other city officials of exploiting the situation.

"The mayor's response to this decision is purely retaliatory and is being pursued for political reasons and at a great emotional and potentially financial cost to innocent employees," read the statement.

24. The parties also agreed that the Mayor made these statements in his inaugural address

on December 7, 1994:

We will require keen cooperation from all our departments, our employees and unions.

But - while we favour cooperation - this council is not adverse to iron-fisted bargaining if necessary to obtain the level of cost-efficiency and high standards that our citizens expect.

At the top of my personal list is to resist any attempts by out-of-touch provincial arbitrators to force our city to keep convicted drug traffickers on our staff. We should insist on maintaining honest and law-abiding employees who are drug-free.

I also feel that our workers should do a wider range of jobs. Here's something that desperately needs to be changed. There was a dead skunk on the road. It was unsightly and smelled bad, naturally, there were complaints.

We sent out one person as quickly as possible to remove the skunk. The union grieved. . . why? Because we didn't send out two people. How many employees does it take to remove one dead skunk? That's like asking how may employees does it take to change a lightbulb.

It makes no sense to send to people when one is sufficient. Our citizens cannot afford such luxuries.

We need people on our staff who are willing and able to broaden their skills to handle a variety of jobs. This is a concern, particularly in our parks department, where we have 21 categories and this must be reduced to 15 at the most.

Our citizens cannot afford a workplace of janitorial specialists.

We will be seeking cooperation from our union, but will not back away from confrontation.

25. The City refused to reinstate Mr. Curtis following the issuance of the award. It asserted that Mr. Curtis had not complied with the conditions necessary for reinstatement, while the union took the view that Mr. Curtis had fulfilled all those conditions and that the City's refusal was specious and based on other reasons. The union brought the matter back before the arbitrator for implementation, and on January 12, 1995, he again ordered the City to reinstate Mr. Curtis forthwith. In the meantime the City had filed an application for judicial review, and it continued to refuse to take Mr. Curtis back. Mr. Wolfe explained this by saying the City was thinking of obtaining a stay of the award pending the court proceedings. On February 13, the judicial review application was dismissed. The City reinstated Mr. Curtis shortly thereafter.

26. It is this sequence of events that the union alleges constitutes a series of unfair labour practices. More specifically, it cites the City's initial refusal to reinstate Mr. Curtis, the decision to initiate the contracting out process, the hiring and purchasing freeze, the barring of Mr. McDonald from the Joint Health and Safety Committee meetings, the alleged statement by Mr. McClusky and the statements by the Mayor in the media as forming the basis of extensive violations of the Act.

II. The Law

27. Sections 3, 65 and 67 of the Labour Relations Act provide as follows:

28. Every person is free to join a trade union of the person's own choice and to participate in its lawful activities.

29. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

30. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

28. These provisions are located within a scheme of collective bargaining which includes an enforceable collective agreement as its centrepiece. Among other things, section 15 of the Act requires parties to bargain in good faith and make every reasonable effort to reach such an agreement, which becomes binding upon the parties under section 51. Strikes and lockouts are prohibited during the life of the collective agreement by section 74, and it is generally accepted that the dispute resolution system provided by the grievance and arbitration procedure is the quid pro quo for that ban. Without such a mechanism, there would be no meaningful way to administer the provisions of a collective agreement. In fact, so fundamental is this process that section 45 of the Act deems an arbitration procedure into all collective agreements, provides an extensive coda with respect to arbitration proceedings and stipulates that arbitration awards are binding and enforceable. Looking at this scheme as a whole, it is evident that if arbitration does not function as an effective method of resolving collective agreement disputes, the viability of a collective bargaining regime may be correspondingly undermined. (See, for example, London

Salvage and Trading Company Limited, [1991] OLRB Rep. Nov. 1291.)

29. This is not to suggest that the process is free of controversy. Arbitrators are often faced with difficult or fractious cases where there may be more than one reasonable outcome or even none at all. The nature of a conflict resolution process means that parties can be highly polarized in their positions and find it difficult to reconcile themselves to an unfavourable result. However galling such an award may be to an unsuccessful party, it is worth remembering that the alternative, where disputes are settled by strikes or other forms of collective action, is usually even less palatable.

30. The statutory context provided by the Labour Relations Act makes it clear that filing and arbitrating grievances fall into the categories of both the lawful activities of a trade union and the administration of a union, and that they constitute the exercise of rights protected under the provisions set out above. Of course, there are some circumstances in which an employer may rearrange its affairs following the issuance of an arbitration award to accommodate or respond to the award without impinging on those rights or breaching the law. At the same time, if its conduct amounts to an attempt to circumvent or resist the effect of the grievance and arbitration process or to retaliate against or intimidate employees or their union, that conduct will constitute a violation of the Act. And if the employer's motives are mixed in this respect, the Board's long-standing approach is that its activities will breach the Act if even one of the reasons for the impugned conduct is unlawful. (See, for example, Delhi Metal Products Ltd., [1974] OLRB Rep. July 450).

III. The Decision

31. The City's first argument in this case was that the Board should defer to an arbitrator with respect to the City's refusal to reinstate Mr. Curtis and its decision to initiate the contracting out process. In considering whether to defer to another forum in which there is concurrent jurisdiction, the Board starts from the proposition that its task is to exercise the powers conferred upon it by the Act. As a result, it is up to a party arguing for deferral to persuade the Board that there are good reasons why the Board should not apply its jurisdiction in the usual manner. Within this broad context, the Board looks to the kind of factors outlined in Valdi Inc., [1980] OLRB Rep. Aug. 1254.

32. The circumstances before the Board suggest that deferral of the City's refusal to reinstate Mr. Curtis makes some sense. Both the City's position that Mr. Curtis had not fulfilled the conditions of the award and the union's response that this was entirely specious were argued before the arbitrator, who dealt with the matter by again ordering Mr. Curtis' reinstatement. Since Mr. Curtis has now in fact been reinstated, there is little to be done by way of remedy, and the arbitrator is not only in a better position to address this issue but has already done so. In this somewhat unusual situation, deferral to the arbitrator appears appropriate.

33. The same cannot be said with respect to the decision to initiate the contracting out process. While the issue of contracting out is touched upon in the collective agreement between the parties, the matter before the Board is not a contractual dispute or an allegation that the City has violated the collective agreement. Indeed, it does not appear that arbitration proceedings in this regard had even been initiated at the time of the hearing. Rather, the allegations involve a pattern of conduct which the union argues breaches the Labour Relations Act, whether or not it is permitted by the collective agreement. In other words, the matter involves issues which are not congruent with those at arbitration, and remedies which are not available in those proceedings. Applying the Board's traditional criteria set out in Valdi Inc., supra, this is not a suitable matter for the Board to defer to another forum.

34. As a result, it is useful to turn at this point to the decision with respect to the contracting out process. The City advanced several reasons for its decision in this regard. Mr. Wolfe told the Board that he and the Mayor agreed to initiate consideration of contracting out because of health and safety concerns relating to the award, for financial reasons and because of factionalization in the Ingram yard. As noted previously, Mr. Wolfe agreed that the issuance of the contracting out notice was precipitated by the Curtis award, although he said that the City might issue a notice such in the future as a result of budget considerations. However, he also agreed that even if it turned out that contracting out did not cost less, the City would still be considering contracting out because of the award.

35. The primary health and safety concern that Mr. Wolfe described to the Board was that he felt the award conveyed a message of leniency towards employees trafficking or using drugs in the workplace, and that the eighteen month suspension, addiction rehabilitation and periodic drug testing imposed were not sufficient deterrents to other employees. In his view, dismissal was the appropriate response. His concern was that employees previously not involved in selling drugs might start to do so because of the award. He acknowledged that the arbitrator had concluded that the City had failed to demonstrate that the grievor was a dealer of illicit drugs in the workplace, but testified that he disagreed with the facts as found by the arbitrator.

36. Mr. Wolfe acknowledged as well that under the City's Employee Assistance Plan, the City had entered into agreements that were similar to the award with respect to employees who had come forward or were caught using drugs and alcohol. These included employees reinstated to driving positions. He admitted that if the facts as determined by the arbitrator were accepted, the award was not very different from those agreements with respect to the kind of message conveyed to employees.

37. While Mr. Wolfe allowed that the undesirable message of the award would affect all three solid waste yards, he explained that the City had singled out the Ingram yard for contracting out because it had the smallest number of employees and because of the factionalization described below. The lngram yard has fifty-three employees, while the Finch and Bermondsley yards have fifty-nine and sixty-nine employees respectively.

38. A related concern expressed by Mr. Wolfe was that the award might lead to more driving convictions and accidents which might in turn have an impact on the City's Commercial Vehicle Operation Registration licence. The City at one point received a letter from the Ministry of Transportation which cited an excessive accumulation of accidents involving the City's fleet, and indicated that failure to take corrective action might result in discussions with the Ministry. The Board was told that one sanction the Ministry could impose was to remove the plates of vehicles operated as part of the City's fleet. However, Mr. Wolfe agreed that the correspondence following this letter indicated that the City had met the Ministry's requirements. He did not know how close the City had come to sanctions, nor did he check Mr. Curtis' accident record. He also testified that the City does not consider this problem when reinstating rehabilitated employees who have had drug or alcohol problems to driving jobs. Contracting out would alleviate Mr. Wolfe's concern because the City would no longer have to maintain a fleet. There was no dispute, however, that the City was only considering contracting out solid waste collection at the Ingram yard. Mr. Wolfe agreed that as a result of provisions in the collective agreement between the parties which prevented employees from being laid off as a result of contracting out, Mr. Curtis would be transferred to one of the other yards if the Ingram yard work was contracted out.

39. Mr. Wolfe also told the Board that he was apprehensive both about potential damage to the trucks, and public liability. This latter concern stemmed from a duty to protect the public which he felt involved both financial liability and a moral obligation. Again, he did not explain why these problems would not be considered when reinstating employees with drug or alcohol problems under the Employee Assistance Plan agreements, nor how contracting out would be a solution if the result was that Mr. Curtis would simply be driving at another City yard.

40. The issue of factionalization related to a particular employee who felt that he had been identified as an informant with respect to drug use and who was being harassed and threatened, he believed, by other employees. However, the employee in question testified that the problems he experienced for the most part occurred before April of 1994. He had been offered a transfer to another location but declined to accept it because he felt that he had done nothing wrong and the City could not guarantee that he would be paid at the same wage level. Mr. Wolfe agreed that he had taken no other steps to address any factionalization aside from considering contracting out.

41. The financial concerns Mr. Wolfe cited included social contract savings targets, declining City revenues and an anticipated reduction in subsidies. He told the Board that the cost of contractors in other municipalities was less than the City was currently paying for garbage collection, although he clarified that this was at least partly because a different level of service was involved in terms of frequency of collection. In cross-examination, Mr. Wolfe testified that the City had not calculated how much it would save by contracting out, either before or since he had sent the contracting out letter, but felt that savings were feasible. He acknowledged that the City had reached an agreement with the union in 1994 with respect to contracting out some items such as apartment garbage collection which were also contained in the notice of November 14, 1994. That agreement was in effect until May of 1995. Mr. Wolfe admitted that if the City actually contacted out those items during this period, it would be in violation of that agreement, but he felt the notice of intention to contract out did not. Mr. Wolfe also testified that in addition to the provisions in the collective agreement preventing employees from being laid off as a result of contracting out, he had advised management members that none of them would lose their jobs either. When asked how the City would save money paying a contractor in these circumstances, he indicated that they expected to realize savings as a result of the attrition of bargaining unit members.

42. The City led evidence with respect to a lengthy process for contracting out which may be roughly summarized as follows. The process can be initiated in several ways, including by means of a report from the Commissioner of Public Works. The issue would then be placed on the agenda of the Public Works Committee which includes five members of City Council and the Mayor in an ex officio capacity. This results in a report which goes to Management Committee, composed of five members of council and chaired by the Mayor. The report from this Committee then goes to City Council. If Council decides to contract out, tenders are accepted and analyzed and a report prepared with respect to whom the contract should be awarded, which is considered by Management Committee and then Council. The Commissioner of Public Works would then take the necessary steps for the actual contracting out. This process can take up to twenty-four weeks. At the time of these hearings, the matters referred to in the November 14th notice were only at the Public Works Committee stage.

43. Dennis Kelly, the City Clerk, told the Board that Council had the power to contract out without going through this process. In addition, if the Mayor decided on his own to solicit tenders or a proposal for contracting out, Council could simply adopt this approach. Motions made by the Mayor, he testified, like those of other Councillors, are usually carried. However, Mr. Wolfe told the Board that first-time contracting out initiatives have never short-circuited this process. He also testified that contrary to the Mayor's statements, the City had not received or solicited any tenders. Nevertheless, this was the first time that a notice of intention to contract out has been sent even before the Public Works Committee stage of the process.

44. Mr. Wolfe also told the Board that he thought the union was wrong to take Mr. Curtis' grievance to arbitration. He did not deny that he realized the November 14th notice would cause concern to the union and its members, but testified that they were aware that there was a long political process in which they could show City Council that they were willing to co-operate with controlling drugs in the workplace.

45. There is no doubt that the City has taken a strong stand against alcohol and drug use in the workplace, and that this policy forms part of its training program for employees. At the same time, the City also takes a relatively sophisticated approach to employees experiencing these problems, including an active Employee Assistance Program. The concerns expressed by Mr. Wolfe with respect to the award are difficult to reconcile with the City's willingness to reinstate employees with a history of drug or alcohol abuse to driving jobs. Of course, such reinstatement would only occur with proper safeguards in regard to respect to rehabilitation, testing and so forth, but these are similar to the conditions set out in the Curtis award. As a result, the issues of potential damage to equipment, the City's commercial vehicle license, and public liability or public risk relating to Mr. Curtis' reinstatement would apply to a similar extent to the employees maintained or reinstated under the Employee Assistance Plan as well. The City distinguished Mr. Curtis' case by saying that he had been trafficking in drugs, as opposed to simply using them. However, as noted earlier, Mr. Wolfe conceded that if the facts were as found by the arbitrator, the situation was not very different from those addressed under the Employee Assistance Plan. It is also not obvious that a driver who sells hashish, however one might disapprove of such conduct, is more likely to have traffic accidents than one who uses it. Moreover, it is not clear how contracting out the Ingram yard would address any of these problems, since Mr. Wolfe conceded that Mr. Curtis would likely be transferred to one of the other yards.

46. In essence, both Mr. Wolfe and Mayor Lastman strongly disagreed with the award because they felt that it was too lenient, and that the appropriate decision would have been in line with the City's original course of action, that is, dismissal. Much of what the City argues now as health and safety concerns are restatements of those views, and their reasons for those views. However, much of this could have been or was in fact put before the arbitrator who decided otherwise. Indeed, the arbitrator specifically addressed the issue of the "message" the award might convey in his decision (and incidentally commented in several parts of the award on the seriousness of the grievor's conduct and the fact that it merited discipline). In these circumstances, the argument that it was not the award itself that prompted the City's conduct but health and safety concerns stemming from the award appears to be an exercise in hair-splitting.

47. As noted previously, Mr. Wolfe also told the Board that regardless of whether contracting out represented a cost-saving, the City would still be considering this course of action because of the Curtis award. In other words, the financial considerations were not determinative in the decision to initiate the contracting out process. Presumably this is reflected in the fact that the City had not analyzed how much money would be saved by contracting out either before or after the notice was issued, and in the financial implications of retaining both the City's employees and managerial staff while at the same time paying a contractor. Of course, it is evident that the contracting out process described above is in part to provide this kind of information and analysis. Nevertheless, to the extent that the financial considerations played any role, the apparent indifference by the City as to whether or not contracting out would represent a cost-saving at the point at which the notice was issued tends to undermine the credibility of the financial reasons advanced for it.

48. The evidence about factionalization indicated that there was some minor harassment of one employee at work. While he testified that he also received threats at home, there was no evidence whatsoever connecting such threats to any other employee. In any event, the City did not seem to take the problem very seriously for many months before the award. Where it concerned itself so little with the matter previously, it seems unlikely that it would suddenly become important enough to warrant the fairly dramatic step of contracting out. The fact that the employee in question had declined a transfer and that the last incident he described was a considerable time before the issuance of the award also suggest that this issue had a relatively remote relationship to the contracting out decision. (Where there was a conflict in the evidence between Mr. Wolfe and the employee in question with respect to dates and incidents, I have relied on that of the employee who had first hand knowledge.) Again, it was also unclear how contracting out would address this problem in any event. In light of the collective agreement provisions, it appears that the individual concerned might end up continuing to work with the same employees, albeit in a different yard.

49. In summary, then, the reasons advanced for the City's decision with respect to initiating the contracting out process are not supported by even its own evidence.

50. In contrast, the Mayor's statements present a different picture. While they must be read in context, the following are some indicative excerpts:

And he said he is going to look into farming out waste collection, "because if the union wants us to keep hiring drug users and drug pushers, I have no use for the union."

"This is crazy," Lastman said. "The guy was driving a garbage truck. I don't want a guy, driving 10 tonnes of garbage in one of our vehicles, who is a drug trafficker."

North York Mayor Mel Lastman is just saying 'no' to a union demand that the city rehire a trash worker nabbed drug trafficking on the job.

And the outraged mayor believes the latest showdown with garbage collection labour bosses could push in a privatized system within 60 days.

"No . .. way - the guy was charged and convicted and we're not about to hire back drug traffickers to drive around 30-ton garbage trucks," he said of a provincial arbitrator's ruling the fired worker be put back on the job.

North York will look at more than contracting out garbage collection if the union doesn't stop filing "nonsense" grievances," Mayor Mel Lastman says.

"I have never, never talked about privatization before," he said. "Other members of council have, but the words have never come from my lips before.

"I'm prepared to go ahead with this if the union doesn't start moving. And I'm not hiring back drug traffickers."

"We can't operate this way any more," he said. "All they do is grieve and grieve and they have us in front of the arbitrators constantly. And we're fed up with it.

An arbitrator's decision to hand a North York sanitation worker back his job after he was convicted of dealing drugs could lead to the privatization of garbage collection, Mayor Mel Lastman warned.

"We're going to appeal it, "fumed an angry Lastman at his election night victory party Monday. "I'm going to put a freeze on all equipment purchases, and I'm going to look at hiring out. If the unions want us to have drug-users on the job, I want no part of the union."

And he [Wolfe] was critical of the union for bringing the matter to arbitration in the first place.

"We're not saying they should not look at the injustices, but whenever there's a problem they don't have to take everything to arbitration."

"Fighting for drug traffickers is nuts," said Lastman. "Who's going to watch this guy when he comes back?"

At the top of my person list is to resist any attempts by out-of-touch provincial arbitrators to force our city to keep convicted drug traffickers on our staff. We should insist on maintaining honest and law abiding employees who are drug-free.

"There's a million people out there looking for work. I don't have to keep drug traffickers working here at North York."

North York Mayor Mel Lastman says he's had enough of unions. A provincial arbitrator says the City must give a sanitation worker back his job even though the worker was convicted of drug charges while on the job.

"This is crazy. This union, this management of the union, Local 94, are working in the past and they've got to come up to speed. They're defending drug pushers."

"Right now one of our zamboni drivers cleans rinks but he can't change a lightbulb," said Lastman. And most of their members would get a raise. Yet their leaders are making it impossible."

The worker was fired after an undercover investigation into drug trafficking in the City works department. The union grieved the issue and it went to an arbitrator. Lastman received word of the arbitrator's decision on November 14th, and he's so fed up he wants to privatize garbage collection. Lastman says the City of North York will appeal the arbitrator's decision. In the meantime, he says he's already began taking tenders for the contracting out of some garbage work.

51. It is clear both from these statements and the other evidence that Mayor Lastman strongly disagreed with the award, that he was highly critical of the union for pursuing the grievance, that he was "fed up" with the union filing grievances and taking them to arbitration, that he wanted nothing to do with a union that would pursue grievances like the Curtis grievance, that he saw contracting out as a means of ridding the City of this problem and that this is why he was considering it. In other words, it appears that at least one motive for the decision with respect to initiating the contracting out process was to deter the union and employees from filing or pursuing these kinds of grievances on pain of losing their ability to handle this work, at least at the Ingram yard and in the areas specified in the notice. Indeed, as noted above, Mr. Wolfe acknowledged that the notice would cause concern to employees and the union, but that they could demonstrate that they were willing to co-operate with controlling drugs in the workplace during the subsequent process. In the context of these events, the conclusion that the notice was intended to alarm employees and exert pressure on them not to pursue grievances like that of Mr. Curtis is inescapable. Moreover, the singling out of the Ingram yard where Mr. Curtis works, the unusual stage at which the November 14th notice was issued and its proximity to the award all convey this message in an especially pointed fashion. Since filing and arbitrating grievances are protected activities under the Labour Relations Act, I find that the City's decision violated sections 65 and 67 of the Act. My conclusion in this regard means it is unnecessary for me to address the union's argument with respect to drawing an adverse inference from the Mayor's failure to testify in these proceedings.

52. However, the City argued that it has not yet either decided to or contracted out any work. All that it has done to date is to initiate a process for considering the matter, and counsel asserted that this more tentative activity could not form the basis of a violation. It is true that the City's actions at this point fell short of contracting out, and in this sense, its conduct is less egregious. Nonetheless, the City's own evidence demonstrates that it has triggered a process which may well lead to contracting out, and that such a process would not have been initiated at this time but for the union's decision to proceed to arbitration and the results of the arbitration award. It is worth noting as well that the notice given to the union states that "the Public Works Department intends to recommend to Council the contracting out of the following services". This is less tentative than the way the City now seeks to characterize its actions. In any event, the fact that contracting out has not yet occurred does not necessarily mitigate the City's motivation for its conduct. Rather, the inchoate nature of its decision is a practical issue which is relevant to consideration of the appropriate remedy in these circumstances.

53. Mr. Wolfe conceded that at least some restrictions were placed on hiring and purchasing as a result of the contracting out decision. In this sense, the City's motive for the decision is relevant to the hiring and purchasing reductions, and to the extent that that motivation is unlawful, such restrictions violate the Act as well.

54. Apart from providing evidence of the City's motivation, the union also alleged that the Mayor's statements constituted independent violations of the Act in the sense that they were designed to intimidate the union and employees in regard to grievances, to disparage the union, and to alienate employees from the union. It is indeed difficult to read these statements as anything other than an attempt to convey to employees that taking particular kinds of grievances to arbitration will have undesirable consequences and to exert pressure on them to prevent them from engaging in this kind of activity. In addition, employees would be left with the impression that their union had endangered their source of work, and that union leaders were standing in the way of pay increases for employees. This conclusion is reinforced by the fact that the Mayor made statements in this regard over a three-week period to an assortment of media outlets.

55. Counsel for the City argued that the provisions of the collective agreement which protect the employment of individuals whose work is contracted out would take any sting or threat out of such statements. It seems reasonable to think that if employees were knowledgeable about such provisions, they would indeed have some ameliorating effect. Mr. Wolfe's statement in one of the newspaper articles that he doubted privatizing would lead to layoffs would also be helpful in this regard. At the same time, the clauses in question appear to be limited to permanent employees, and the enforcement of collective agreement provisions is ultimately in the hands of arbitrators and not amenable to guaranteed outcomes. Even a small degree of risk may loom large in the area of job security where the stakes are high for employees. Moreover, such provisions would only protect employees for the life of the collective agreement and must be read in a context where the Mayor also publicly declared that Council was not adverse to iron-fisted bargaining and would not back away from confrontation with the union. In addition, even contracting out which leads to a reduction of employees by attrition will ultimately shrink the bargaining unit and have an impact on the union's bargaining power, finances, and perhaps its eventual viability in the workplace, with a corresponding effect on the strength and rights of employees.

56. Another argument advanced by the City with respect to these statements was that the Mayor could not be taken as speaking for the City because he was only one of a number of Councillors in a "weak mayor" system, that is, where he has only one vote out of fifteen on City Council. However, the City conceded that section 69 of the Municipal Act stipulates that the Mayor is the head of the Council and the chief executive officer of the corporation. It was also not disputed that section 70 of that Act sets out the Mayor's duties as including overseeing the conduct of all subordinate officers and that this included the human resources department, the public works commissioner and the city clerk. Neither is there any suggestion in the Mayor's statements that he is not speaking in his capacity as Mayor, and the statements themselves convey considerable confidence with respect to his ability to make the changes he desires. In these circumstances, the proposition that he was not speaking for the City is a dubious one.

57. Counsel was also of the view that the statements of politicians should be given wider latitude by the Board because of the unique features of political life, and that the Mayor's statements were simply a colourful and flamboyant way that a politician indicated that he did not like an award and that he intended to take it to judicial review. He conceded, however, that politicians should not be subject to a different or lesser test in considering whether the Labour Relations Act had been breached.

58. Nonetheless, it is difficult to view this argument as anything but advancing that very proposition. The idea that politicians might be able to make statements of this nature with greater immunity than ordinary citizens is not particularly compelling. Indeed, one would think that elected officials might take particular care to ensure that their public statements in office were consistent with the law. In any event, there is no reason for the Board to apply a lesser standard of conduct to those responsible to the electorate than to the electorate itself and no jurisprudence to support such a proposition. To the extent that context is important in considering all statements alleged to be violations of the Act, I have taken that into account here as well. And while the Mayor does refer to judicial review in his statements, he says a great deal more than that.

59. Looking at the statements as a whole, there can be little doubt that the message that would be conveyed to employees and the union was that filing and pursuing particular kinds of grievances would result in the loss of certain work to contracting out with an attendant degree of uncertainty in terms of job security and the weakening of the union's base, and that the union has already endangered that work by proceeding with the Curtis grievance. As a result, the statements amount to violations of sections 67(c) and 65 of the Labour Relations Act.

60. Turning next to the matter of Mr. McDonald's removal from the Joint Health and Safety Committee, I find that despite Mr. McDonald's testimony, the evidence indicates that he did not sit on this committee on a regular basis. Among other things, it is consistent with Mr. McDonald's status as an alternate that for the most part Mr. Tucci attended the meetings of this Committee. However, it is also clear that the two of them did occasionally attend together, and that it was Mr. McDonald's opposition to discussing the award at the special meeting which prompted the City's decision that only one of them could attend in the future. Although the City argues in its defence that it did not specify which one~ the fact that Mr. Tucci was the regular member and Mr. McDonald the alternate made it a foregone conclusion that it was Mr. McDonald who would be barred from participating as a result of the City's decision.

61. There was no suggestion that participating in a joint health and safety committee was not a lawful activity of a union, and I find that the City's conduct in this regard also amounted to an attempt to interfere with the administration of the union contrary to section 65.

62. The statements alleged to have been made by Mr. McClusky are a different matter. The union's evidence on this did not stand up well to cross-examination, and I am not convinced, even in the presence of the reverse onus, that these statements were made. As a result, that part of the union's application is dismissed.

63. This brings me to the question of remedy. Section 91 provides the Board with a broad and comprehensive jurisdiction to award remedies:

91.-(1) The Board may authorize a labour relations officer to inquire into any complaint alleging a contravention of this Act.

(2) The labour relations officer shall forthwith inquire into the complaint and endeavour to effect a settlement of the matter complained of.

(3) The labour relations officer shall report the results of his or her inquiry and endeavours to the Board.

(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting, the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or

acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of;

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally; or

(d) an order, when a party contravenes section 15, settling one or more terms of a collective agreement if the Board considers that other remedies are not sufficient to counter the effects of the contravention.

(4.1) For the purpose of remedying a contravention of section 41.1, the Board shall not settle any provision of an adjustment plan on terms determined by the Board.

(5) 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.

(6) A trade union, council of trade unions, employer, employers' organization or person affected by the determination may file the determination, excluding the reasons, in the prescribed form in the Ontario Court (General Division) and it shall be entered in the same way as an order of that court and is enforceable as such.

(7) Where a proceeding under this Act has been settled, whether through the endeavours of the labour relations officer or otherwise, and the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding upon the parties, the trade union, council of trade unions, employer, employers' organization, person or employee who have agreed to the settlement and shall be complied with according to its terms, and a complaint that the trade union, council of trade unions, employer, employers' organization, person or employee who has agreed to the settlement has not complied with the terms of the settlement shall be deemed to be a complaint under subsection (1).

64. The Board has observed on a number of occasions that rights are only meaningful where they are supported by effective, creative remedies attuned to the economics and psychology of the situation before the Board. In this regard, the Board commented in Radio Shack, [1979] OLRB Rep. Dec. 1220 as follows:

65. It is trite to say that all rights acquire substance only insofar as they are backed by effective remedies. Labour law presents no exception to this proposition. An administrative tribunal with a substantial volume of litigation before it faces a great temptation to develop "boiler plate" remedies which are easy to apply and administer in all cases. This temptation must be resisted if effective remedies are to buttress important statutory rights. An important strength of administrative tribunals is their sensitivity to the real forces at play beneath the legal issues brought before them and there is no greater challenge to the application of this expertise than in the area of developing remedies. To be effective, remedies should be equitable, they should take account of the economics and psychology permeating the situation at issue; and they should attempt to take into account the reasons for the statutory violation. Remedies should also be sensitive to the interests of innocent bystanders. This means then that the Board should try and tailor remedies to each particular case. It is equally true, however, that the Ontario Labour Relations Board cannot police the entire labour relations arena. As important as it is for this Board to safeguard the substantive rights it administers, ultimately compliance with the Act depends on the vast majority of unions and employers according at least minimal respect to the legislation, the Board and the Board's directives. With its limited resources and the time that must be taken to adjudicate fairly issues of controversy, the Board must rely on the cooperation of employers and trade unions in the day-to-day administration of the Act. For this reason, the Board cannot get too far ahead of the expectations of the parties it regulates. It must be concerned that its decisions are perceived, in the main, as reasonable and fair to attract as much self-compliance as possible. It has therefore been said that the ideal Board order must be both an instrument of education and of regulation. See generally St. Antoine, A Touchstone for Labor Board Remedies (1968), 14 Wayne L. Rev 1039; Ross, Analysis of Administrative Process Under Taft-Hartley, [1966] Lab. Rel. Yearbook 299. Giving effect to these general considerations, three basic principles that underpin section 79 have emerged.

66. Several basic principles can be elucidated within this general framework which the Board went on to discuss in Radio Shack, supra. The most relevant here is the proposition that the primary purpose of a remedy should not be to penalize or punish a party, but rather to make the injured party "whole", that is, to repair the damage inflicted by the violation as completely and comprehensively as is possible.

67. The mere novelty of a remedy will not take it beyond the Board's comprehensive remedial jurisdiction. As the Divisional Court observed in dismissing an application to review Radio Shack, supra:

So long as the award of the Board is compensatory and not punitive; so long as it flows from the scope, intent, and provisions of the Act itself, then the award of damages is within the jurisdiction of the Board. The mere fact that the award of damages is novel, that the remedy is innovative, should not be a reason for finding it unreasonable.

In the same decision, the Court also commented on the Board's expertise more generally:

The Legislature of the Province of Ontario has entrusted to the Labour Relations Board an onerous and demanding responsibility. It is required to monitor and supervise a great many aspects of industrial relations and to minimize industrial disputes. The Board has in the past, does today, and will tomorrow concern itself constantly with employers, unions and employees. It is a continuous and unending process. In the course of its work the Board acquires a vast experience and expert knowledge in the field of industrial relations.

67. In assessing what is necessary to make the complainant "whole", the Board's longstanding approach is to apply an objective test. Rather than looking for evidence of each employee's subjective reaction to the unfair labour practices, the Board considers the impact of the violations on the ordinary employee, neither the most timid nor the most stalwart. There are several reasons for this approach. Among other things, the views of employees subsequent to intimidating activities by an employer may be unreliable as a guide to the impact of such conduct~ since it may have already accomplished its purpose. Secondly, such an inquiry is likely to lead the Board into territory involving the views of employees about union representation, particularly in a situation such as this where the union argues that part of the purpose of the City's activities was to disparage the union's leadership. This is an area in which the Board strives to avoid unnecessary disclosure pursuant to section 113 of the Labour Relations Act.

68. In this case, the union has requested a declaration that the City has violated the Act, a cease and desist order, an order reinstating Mr. Curtis, letters to employees setting out certain rights and obligations, the retraction of the November 14 contracting out notice, compensation for damages, the reinstatement of Mr. McDonald to the Joint Health and Safety Committee, an order restraining the City from either recommending to Council that the services in the November 14 notice be contracted out or from contracting out, an order restraining the City from imposing a hiring and purchasing freeze and an order to lift any freeze already imposed.

69. Counsel for the City indicated that if the Board found violations of the Act, the City did not take issue with the appropriateness of a declaration, a cease and desist order or notices to employees, and I find that these remedies are appropriate in the circumstances. On the other hand, the union conceded that it did not have quantifiable damages at this point in time, aside from the costs of the implementation hearing before the arbitrator. However, since I have deferred to the arbitrator with respect to that matter, there is no basis on which to award those costs. Similarly, the request for an order reinstating Mr. Curtis involves the same deferred issue, and has in any event been eclipsed by events and rendered moot.

70. The reinstatement of Mr. McDonald to the Joint Health and Safety Committee involves other considerations. Because Mr. McDonald did not attend many of these meetings, an order which would directly or indirectly have this effect provides more than is necessary to repair the damage caused by the unlawful restrictions on his participation. The evidence indicates that it was primarily Mr. Tucci who attended the Committee meetings, but that Mr. McDonald occasionally attended as well, either replacing or in addition to Mr. Tucci. As a result, the appropriate remedy is that Mr. McDonald continue in his status as the alternative representative, that he be permitted to attend meetings in Mr. Tucci's absence, and that he be allowed to attend some meetings with Mr. Tucci as well. The intervals at which he may attend with Mr. Tucci are to be worked out by the parties, but should reflect his pattern of attendance prior to the City's refusal to allow Mr. McDonald to participate.

71. The orders requested with respect to the contracting out process are more novel. Initially, the union asked for a direction preventing the City from proceeding with the contracting out process initiated in November and prohibiting it indefinitely from contracting out in the future, although it subsequently modified its position. Since at least part of the motivation for triggering the contracting out process was unlawful, it is clear that the City cannot be allowed to continue with the process initiated in November. Among other things, if the City is permitted to take the process through to its conclusion and work is contracted out as a result, employees are likely to perceive that it has been successful in carrying out its threats with a corresponding impact on their ability to exercise statutory rights without fear of reprisal. In other words, the City will have accomplished the very result that it sought to achieve by its unlawful conduct. Similar considerations obtain with respect to the restrictions on hiring and purchasing.

72. I have considered the fact that the present process may not lead to contracting out, and whether it might be more appropriate to await the result of the process before fashioning a remedy. However, the effect of a twenty-four week period of uncertainty in this regard on employees will also undermine the ability of employees to freely exercise their rights under the Act, given the events which have preceded it. Moreover, if the Board permits this process to continue, it will lend a legitimacy to it and to its ultimate result which is at odds with the fact that it was motivated in part by unlawful considerations. Accordingly, the contracting out process started in November must be halted. However, many of the same considerations apply if a new process is commenced within a short period of time. The message to employees will still be that filing or pursuing particular kinds of grievances has resulted in the loss of certain types of work, the shrinking of the bargaining unit and consequently their bargaining agent's sphere of influence. To repatr the damage caused by the City's statements and conduct, it is necessary to provide a period of stability to rekindle the confidence of employees in their union and in their right to engage in its lawful activities without fear of reprisal. Any contracting out permitted under the collective agreement must take place at a point sufficiently removed in time so that employees will not trace its origins to either the Curtis award or the other grievances referred to by the Mayor. Since the City's evidence indicated that there were no immediate plans to contract out services other than as a result of the Curtis award, some temporary moratorium on contracting out will not work a serious hardship upon tt. And to the extent that this remedy is somewhat novel, it flows directly from the specific nature of the violations in this case, and is tailored as closely as possible to rectifying them.

73. On the other hand, an indefinite prohibition against contracting out is not congruent with the fact that these matters are normally the subject of bargaining, and the collective agreement between the parties does not contain such a ban. Such a prohibition would have the effect of handing the union a windfall, which is not consistent with the purposes of the Board's remedies. Moreover, the provision of the kind of notices requested by the union will help to ameliorate the damage done to the union's credibility and the fears that employees may now have with respect to the exercise of their statutory rights. In coming to this conclusion, I have also considered the fact that this is not a new labour relationship, and although it is unfortunately one which must be characterized as long-standing, rather than mature, it is not as fragile as one in its infancy. Among other things, this means that there is a collective agreement in place with provisions protecting employees to some extent from job loss in the event of contracting out. Moreover, the fact that the union could and did respond publicly to the Mayor's statements is an element to be considered in measuring the damage flowing from the City's violations as well. It is also worth noting that some grievances have in fact been filed by employees since November, although the conclusions to be drawn from this evidence are somewhat limited in light of its ambiguous and subjective nature. However, it does appear that the problems likely to flow from the City's activities are not so severe as to warrant such a sweeping remedy.

74. The union's modified position was that contracting out should be prohibited during the life of the current collective agreement. There is no doubt that this is a useful remedial option to consider in cases where it is necessary to provide an opportunity for the parties to bargain about an issue. In this case, however, the facts indicate that the Board's primary task is to design a remedy that provides employees with the necessary stability and security to rectify the effects of the City's conduct.

75. Balancing these interests, I conclude that an order prohibiting the City from contracting out services performed by members of the union's bargaining unit for a period of six months will supply a badly needed period of stability without creating undue hardship for the City in practical terms. Prohibiting a hiring and purchasing freeze for the same period of time is appropriate for similar reasons. In determining the length of this period, I have taken into account that a number of months have already elapsed since these events.

76. The City argued that the Board could not fetter the activities of a democratically elected body such as City Council, and that any restriction on contracting out was thus precluded. While such an argument has some superficial appeal, it does not stand up to further analysis. There is no question that City Council is bound by the Labour Relations Act, and the fact that it is an elected body does not permit it to pass motions or take action in violation of that Act. Similarly, where one arm of the responding party, that is, the Mayor or the Public Works Commissioner has engaged in unlawful conduct necessitating a remedy, it is difficult to see why another arm of the responding party should not be subject to that remedy where it is necessary to make the complainant whole again. Among other things, I note that the parties have agreed that the proper responding party in this matter is the Corporation of the City of North York, rather than the Mayor or the Commissioner of Public Works.

77. Turning finally to the notices requested, the union proffered no reason why they should take the form of letter to employees, rather than the more usual method of posting in the workplace, and I find the latter to be a sufficient means of bringing the relevant rights and obligations to the attention of employees in this case.

78. In summary, then, I conclude that the City has violated sections 65 and 67 of the Labour Relations Act, and direct as follows:

(a) That the City cease and desist from violating the Labour Relations Act.

(b) That Mr. McDonald be permitted to attend meetings of the Joint Health and Safety Committee in the same pattern as he did prior to November 17, 1994.

(c) That notices in the form of Appendix A be posted in conspicuous locations in the workplace where they are likely to come to the attention of employees for a period of thirty (30) days.

(d) That the City cease and desist from proceeding further with the contracting out process initiated in November of 1994.

(e) That the City remove the restrictions on hiring and purchasing imposed in November of 1994.

(f) That the City be prohibited from initiating consideration of or contracting out services performed by members of the bargaining unit for a period of six (6) months from the date of this decision.

(g) That the City be prohibited from imposing restrictions on hiring and purchasing with respect to services performed by members of the bargaining unit for a period of six (6) months from the date of this decision.

79. The Board remains seized with respect to the implementation of this decision.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

AFTER A HEARING IN WHICH BOTH THE CITY OF NORTH YORK AND THE CANADIAN UNION OF PUBLIC EMPLOYEES. LOCAL 94 HAD THE OPPORTUNITY TO PRESENT EVIDENCE AND HAVE ARGUMENTS, THE ONTARIO LABOUR RELATIONS BOARD HAS FOUND THAT THE CITY VIOLATED THE LASOUR RELATIONS ACT.

AS A RESULT, THE BOARD HAS ORDERED THE CITY TO STOP THE CONTRACTING OUT PROCESS AND THE RESTRICTIONS ON HIRING AND PURCHASING STARTED IN NOVEMBER OF 1994. IN ADDITION, THE BOARD HAS ORDERED THE CITY NOT TO INITIATE CONTRACTING OUT OR IMPOSE RESTRICTIONS ON HIRING AND PURCHASING FOR A PERIOD OF SIX MONTHS AND TO POST THIS NOTICE ASSURING EMPLOYEES OF THEIR RIGHTS.

THE ACT GIVES EMPLOYEES THE RIGHT TO BE REPRESENTED BY A UNION, TO ENGAGE IN ITS LAWFUL ACTIVITIES AND TO FILE GRIEVANCES.

THE ACT GIVES UNIONS THE RIGHT TO TAKE GRIEVANCES TO ARBITRATION ON BEHALF OF EMPLOYEES AND TO ENFORCE THE AWARDS THAT RESULT.

IT IS ILLEGAL FOR AN EMPLOYER TO INTERFERE WITH THESE RIGHTS, TO INTIMIDATE EMPLOYEES SO AS TO DETER THEM FROM EXERCISING THESE RIGHTS OR TO RETALIATE AGAINST THEM OR THEIR UNION FOR EXERCISING THESE RIGHTS.

THE CORPORATION OF THE CITY OF NORTH YORE

PER,

(AUTHORIZED RIPREIENTATIVE)

This is an official notice of the Board and must not be removed or defaced.

THIS NOTICE MUST REMAIN POSTED FOR 3D CONSECUTIVE WORKING DAYS.

DATED THIS 19TH DAY OF SEPTEMBER. 1995.