The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, and The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, and its Local 221 v. Centro Mechanical Inc., 1996 CanLII 11202

The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, and The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, and its Local 221 v. Centro Mechanical Inc.

[1996] OLRB REP. SEPTEMBER/OCTOBER 762

3727-95-R; 0110-96-U The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, and The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, and its Local 221, Applicants v. Centro Mechanical Inc., Responding Party

BEFORE: G. T Surdykowski, Vice-Chair.

APPEARANCES: James Fyshe, John Telford, Brian Christie and Kim Choate for the applicants; David Cowling, David C. Davies, Chris C. Cosentino and Peter Osbom for the responding party.

DECISION OF THE BOARD; September 6, 1996

I Board File No. 3727-95-R

1. Board File No. 3727-95-R is an application for certification in the construction industry. By decision dated January 30, 1996, a differently constituted panel of the Board determined that the "applicant" is a council of trade unions within the meaning of sections 1(1) and 126 of the Labour Relations Act, 1995 which has been authorized by its constituent trade unions to discharge the responsi­bilities of a bargaining agent within the meaning of section 12(1) of the Act, and which is an affiliated bargaining agent of a designated employee bargaining agency.

2. I note that the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ("OPC"), which it appears the previous panel considered to be the applicant, the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (the "Interna­tional"), and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting and Industry of the United States and Canada, Local 221 ("UA Local 221") are three distinct trade union entities. Indeed UA Local 221 is one of the constituent trade unions of the OPC. Although more than one trade union can make an application for certification with respect to a group of employees, it is not appropriate for more than one trade union to bring a single application for certification; that is, each trade union must bring its own application. (Otherwise it is not at all clear how bargaining rights would be assigned (at least outside of the ICI sector) in the event of a successful application.) In this case, it appears that the OPC is the proper applicant.

3. In any case, the Board also determined the bargaining unit and directed that a representation vote be taken in that unit.

4. A representation vote was held on February 6, 1996. All five persons on the voters' list agreed to between the parties cast ballots. When the ballots were counted, all five were found to have been marked in favour of the applicant. Ordinarily, this would have resulted in certificates issuing pursuant to section 160(1) of the Act. However, the responding employer ("Centro") alleges that the applicant has breached the Act, and specifically sections 76 and 87(2) thereof, such that the representa­tion vote likely does not reflect the true wishes of the employees about being represented by the applicant. Further, Centro's position is that no other remedy, including the taking of another representa­tion vote would be sufficient to counter the effects of the applicants alleged misconduct, and that the application should therefor be dismissed under section 11(2) of the Act.

5. Simply put, Centro alleges that the applicant intimidated or coerced three of the employees effected by the application, Bruno Battiston, Loris Battiston and Carmine Brogno, into signing "union cards" and voting in favour of the applicant. The applicant, of course, denies that it has done anything improper.

II The Hostile or Adverse Witness Issue

6. Centro was content to proceed first. It called six witnesses, including all three employees it alleges were threatened, intimidated and coerced by the applicant. One of the employee witnesses was Carmine Brogno. Brogno was an employee of the bargaining unit herein at the time the application was filed. He is, and was at all material times, a member of UA Local 46, another of the constituent trade unions of the OPC. Centro called Brogno as a witness to give evidence concerning its allegations that the applicant had engaged in unlawful conduct. In the course of his examination in chief, counsel for Centro moved that Brogno be declared a hostile or adverse witness.

7. This issue arose out of a series of questions and answers concerning Centro's unfair labour practice allegations. In the course of examining Brogno in chief, counsel for Centro asked him a series of questions concerning these allegations. Brogno testified that he agreed to sign a membership card because of the internal trade union charges which had been laid against him, in an effort to have those charges dropped, as he had been led to believe they would be if he "co-operated" with the applicant in that way. Brogno said that John Telford, Business Agent for UA Local 221, told him that "you help me and I'll help you" and that he understood that his "help was to sign to get a vote, if it passes it passes, if it doesn't it doesn't." Counsel then specifically asked Brogno if he understood that his "help" applied to the vote as well, to which Brogno replied that "no, just if you sign, that's all I want from you." Counsel then put it to Brogno that Brogno had told him earlier that morning that he felt he had to vote in favour of the applicant as well. Brogno denied this and suggested that counsel had misunderstood him if that's what he thought. Counsel then asked the Board to declare Brogno to be a hostile witness because his testimony contradicted his earlier statement to counsel.

8. Strictly speaking, the Board is not bound by the rules of evidence (see section 111 (2)(b) in that respect). However, when it comes to a question of whether a witness ought to be declared hostile or adverse, the Board has followed the approach taken in the courts (see, for example, The Corporation of the Town of Meaford, [1981] OLRB Rep. June 634; F.G. Bradley Co. Limited, [1973] OLRB Rep. June 342).

9. In that respect, the Ontario Evidence Act provides that:

10. In this Act,

(a) "action" includes an issue, matter, arbitration, reference, investigation, inquiry, a prosecution for an offence committed against a statute of Ontario or against a by-law or regulation made under any such statute and any other proceeding authorized or permitted to be tired, heard, had or taken by or before a court under the law of Ontario;

(b) "court" includes a judge, arbitrator, umpire, commissioner, justice of the peace or other officer or person having by law or by consent of parties authority to hear, receive and examine evidence. R.S.O. 1980, c.145. s1.

2. This Act applies to all actions and other matters whatsoever respecting which the Legislature has jurisdiction. R.S.O. 1980, c.145, s.2.

3. A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may contradict him by other evidence, or, if the witness in the opinion of the judge or other person presiding proves adverse, such party may, by leave of the judge or other person presiding, prove that the witness made at some other time a statement inconsistent with his present testimony, but before such last-mentioned proof is given the circumstances of the proposed statement sufficient to designate the particular occasion shall be mentioned to the witness and he shall be asked whether or not he did make such statement. R.S.O. 1980, c.145, s.23.

4. Section 23 of The Evidence Act is a legislated exception to common law rule that it is inpermissible to introduce general evidence to impeach the character of your own witness. However, even in common law, a party can contradict its own witness as to particular facts. In this case, Centro sought to contradict Brogno, its own witness, with respect to particular facts, or at least with respect to what he said about those particular facts.

5. Much has been written of the meaning of "adverse" and "hostile" in this context, and of the effect of a finding that a witness is adverse or hostile. It appears that what it comes down to is this: being "hostile" is merely a stronger form of being "adverse", so that all "hostile" witnesses are "adverse", but not all "adverse" witnesses are necessarily "hostile". As the Ontario Court of Appeal held in Wawanesa Mutual Insurance Co. v. Hones (1961) 1961 CanLII 28 (ON CA), O.R. 495, a witness need not be "hostile" to be found to be "adverse", and a witness may be found to be adverse in any case in which by his/her own evidence the witness takes a position opposed in interest to the party calling himlher and it is proved that the witness made a prior statement which is inconsistent with his/her testimony (see also, Boland vs. The Globe & Mail Ltd. (1961) 1961 CanLII 162 (ON CA), O.R. 712 (Ontario Court of Appeal)).

6. The Court of Appeal's decision in Wawanesa Mutual Insurance Co., supra, provides a useful summary of the law in this area (at page 528):

It is to be observed that the only right given by s.20 is, if the witness proves adverse, with leave of the Judge, to prove that the witness made at other times a statement inconsistent with his present testimony. There is nothing in the section as to cross-examination and the section does not come into operation unless there is evidence to prove a prior inconsistent statement. There is, I think, no question that if a witness proves hostile and is so declared by the Judge, counsel may cross-examine the witness generally as to the matters in issue in the manner stated by Cross, including cross-examination as to any prior inconsistent statements, whereas on an application made under s.20 of the Evidence Act, the only right that can be given is to prove the prior inconsistent statement after having drawn to the attention of the witness, the statement and the circumstances of the making of it and asking him whether he had in fact made it. If he admits having made it that admission supplies the proof and the calling of witnesses to prove the making of it would be unnecessary but unquestionably he could be questioned in regard to whether the prior statement was true and if he admitted its truth it would be evidence to be considered in the case. If he denies its truth but admits having made it, or if he does not admit having made it and it is proved by other witnesses that he did, then it goes only to the credibility of the witness.

Consequently, where a witness is shown to be hostile (something which seems to be can be the subject of evidence which is not limited to the alleged prior inconsistent statement(s)), the common law rule applies and that witness will be subject to cross-examination by the party calling him/her with respect to all matters in issue, while if s/he is merely "adverse", the Evidence Act applies and the party calling the witness is only entitled to prove the prior inconsistent statement and is limited in its cross-examination to that issue. At pages 534-535 of the reported decision, the Board in Wawanesa Mutual Insurance Co., supra, went on to describe the process which ought to be followed when such an issue arises. For the purposes of a tribunal like the Board, which operates without a jury, that process comes down to this:

1. The calling party should raise the issue, describe the alleged prior inconsistent statements and the circumstances in which the statements are alleged to have been made, and seek to leave put the statements to the witness.

2. If it appears that the witness may have made a statement with respect to matters in issue which appears to be inconsistent with his/her testimony, leave should be granted to put the alleged prior statements and circumstances to the witness.

3. If the witness admits having made the statement and the truth of the contents of the statements, his/her admission may be accepted as evidence of the contents.

4. if the witness denies making the statements, the calling party will be permitted to introduce evidence to establish that the alleged statements were made. Upon hearing all of the evidence in that respect, the Board must determine, whether, on a balance of probabilities, the alleged statements were made.

5. if the Board determines that the statements were not made, the moving party's request will be denied and it will be required to proceed in the normal course.

6. If the Board is satisfied that the statements were made, the calling party will be allowed to cross-examine the witness as an "adverse" or "hostile" witness, as the Board determines is appropriate in the particular case.

13. I note that proof of a prior statement is not proof of the truth of the contents of that statement unless the witness admits that both that s/he made the statement and that the facts stated in it are true. Otherwise, proof of the statement can only operate to impeach the witness's previous testimony and his/her credibility.

14. In this case, Centro's counsel was allowed to put the alleged prior statements to the witness without objection (quite rightly in the circumstances) by the applicant. When Brogno denied making the statements alleged, counsel sought and was granted leave to call evidence to prove those alleged statements. Because counsel was himself to be Centro's only witness in that respect, the hearing had to be adjourned so that another lawyer from his firm could act as counsel with respect to that issue.

15. Mr. Cowling testified that between 7:30 and 8:00 a.m. on June 18, 1996, the first scheduled day of hearing, he interviewed three witnesses (Messrs. Helyer, Babcock and Cosentino) in his offices. At approximately 9:00 a.m. he arrived at the Board where he met the three employee witnesses (Messrs. Bruno and Loris Battiston, and Brogno) who he had summoned to attend the hearing. Cowling introduced himself to them as the company's lawyer and took them to an anti-room outside of the boardroom in which the hearing was to begin at 9:30 a.m. Cowling said he interviewed all three of them together but it was apparent that his questions were directed primarily at Bruno Battiston. The entire interview lasted some ten to fifteen minutes, in the course of which Cowling testified that Brogno mentioned that he felt he had to co-operate with the applicant in order to have the union's internal charges against him dropped and that his co-operation included assisting and organizing the company and voting in favour of certification. Cowling stated that Brogno said that the reason he voted for the applicant was to get the charges against him dropped.

16. Upon considering the evidence of Brogno and Cowling, the only evidence before the Board on the issue, and the representations of the parties, I dismissed Centro's motion in a brief oral ruling.

17. There was nothing before the Board which suggested that Brogno was hostile to Centro. Cowling did say that the three employee witnesses seemed to be hesitant to speak with him, but that is hardly surprising in the circumstances and even at its highest does not suggest hostility. The only real issue is whether Brogno should be declared "adverse", a question which turned on whether the alleged inconsistent statements were made. In considering that question, I carefully reviewed all of Brogno's evidence, particularly his testimony with respect to the alleged prior inconsistent statement, and the evidence of Cowling, particularly his evidence of the circumstances in which the alleged statements were said to have been made, and which I note Brogno was not questioned about. I also considered the seriousness and importance of the issue to which the evidence in question related, that Brogno is no longer an employee of Centro but continues to be a member of the United Association, and that the only two other persons present during the "interview" at which the alleged statements were said to have been made were not called to testify.

18. In the result, I was satisfied that both Brogno and Cowling had honestly recounted what they believed had been said, hut that there was a genuine misunderstanding with respect to what was said between them. It was easy to see how such a misunderstanding could have arisen. Cowling, who had pleaded the case for the employer, came to the Board on June 18, 1996 with a preconceived notion of what had happened. At the Board he met the three employees in a group for the first time. He spoke with all three of them together in a very brief encounter just outside the hearing room just before the hearing was scheduled to begin. On his own evidence, Cowling focused on Bruno Battiston, not Brogno, in their discussions and it is not particularly surprising that in these circumstances Cowling "heard" what he hoped and expected to hear, according to Cowling, from Brogno to whom he was not even speaking directly. In the face of Brogno's agreement that he had told Cowling (and as he had also testified) that he had agreed to "sign for" and help organize Centro because of the internal trade union charges against him, but his complete and absolute denial that he had either told Cowling that he also felt compelled to vote for the applicant in the representation vote or that he did in fact feel compelled to do so because of those charges, I was not satisfied that Brogno had made the alleged inconsistent statement. Cowling may have "heard it", but Brogno did not say it.

19. Accordingly, I dismissed Centro's motion and the hearing proceeded. (I noted that Cowling resumed acting as counsel for Centro with the express agreement of the applicant.)

III The Facts

20. I turn now to the merits of Centro's allegations. First, I have not found the evidence of Michael Helyer, employed by another company as a project manager at one of the job sites in question during part of the material times, or the evidence of Allan Babcock a site superintendent also employed by another company, to be particularly helpful. Their evidence was very general and has little probative value other than that it tends to suggest that the applicant was putting some pressure on the three employees, particularly Bruno Battiston and that the applicant was pursuing Bruno Battiston and threatening to take internal trade union proceedings against him. Bruno Battiston appeared to be quite a reluctant witness. In addition, English is not Mr. Battiston's first language, and although he was provided with an interpreter, he persisted in attempting to answer the questions put to him in English, before they had been translated for him. As a result, it was apparent that he did not fully understand all that was asked of him and many of his answers were not particularly responsive to the questions asked. Accordingly, the reliability of his evidence is suspect except where it is corroborated by other reliable evidence. Brogno also appeared uncomfortable responding to Centro's questions, although less so than Bruno Battiston. Nevertheless, he gave his evidence in a reasonably candid and straightforward manner, except perhaps when he testified with respect to the manner in which he voted and why. Loris Battiston testified in a straightforward manner and I find him to be a reliable witness when he restricted himself to testifying about matters about which he had direct knowledge, but not when he testified about things which he had heard as though he had himself heard them or when he attempted to extrapolate from what he thought he knew. Chris Cosentino, the owner and president of Centro, was clearly unable to resist the influence of what he perceived to be his self-interest. As a result, the reliability of his evidence was also suspect. Indeed, on several points it seems improbable that what he says happened occurred in quite the way that he described. In that respect, where Cosentino's evidence conflicts with that of Brogno, Loris Battiston or Robert Choate, I prefer the evidence of the latter. I also find John Telford's evidence generally reliable as far as it goes, except that his recollection of the chronology of events is not entirely accurate. (For example, Telford testified that he met with Bruno and Loris Battiston, and Brogno in May 1995 on the job site, a time when Bruno Battiston was the only one of the three there).

21. Having assessed the testimony of the various witnesses, and the documentary evidence before the Board, I find the following material events occurred.

22. Centro was incorporated at or about the time when it obtained two jobs in Kingston, the main one being a $12 million addition and renovation job at a correctional facility known as the "Pittsburgh Institution". Centro took over a contract in that latter respect from another mechanical contractor which had defaulted on the contract. Centro actually came on to the job site in late March or early April 1995.

23. Bruno Battiston lives in Toronto. He was a member of UA Local 46 at all material times. He accepted a job as a working foreman on Centro's Kingston jobs. It appears that he was the first Centro employee on the Kingston jobs, and that although he worked with the tools he was responsible for overseeing the job for Centro and acted as Centro's liaison with a general contractor and others on the jobs (I note that it is agreed between the parties that Bruno Battiston is an "employee" within the meaning of the Act for the purposes of these proceedings). It was through Bruno Battiston that Loris Battiston, Bruno's son, and Brogno, a friend of Loris with whom Bruno had worked for some years, obtained employment with Centro on the Kingston jobs. Indeed, it was Bruno Battiston who effectively hired Loris Battiston and Brogno. Loris Battiston and Brogno were members of UA Local 46 at all material times as well. Brogno started on the Kingston jobs in mid June 1995. Loris Battiston started some time later, immediately after New Year's Day 1996.

24. John Telford is the Business Manager for UA Local 221 (Kingston). He was aware of and watching the Pittsburgh Institution job site before Centro came onto it. Soon after Centro came onto the site, in the person of Bruno Battiston, Telford came to the site and had a "chat" about the job with him. He did not identify himself to Bruno until the second visit to the site one and a half to two weeks later. During that second visit, in mid May 1995, after he became aware that Bruno Battiston was a United Association ("UA") member, he spoke to Bruno Battiston about his obligations to the UA and specifically his obligation to obtain a travel card to work in UA Local 221's jurisdiction. It appears that Bruno Battiston did not understand this obligation to extend the work for non-union contractors if he understood the travel card rules at all.

25. Although it is not clear how often he did so, Telford continued to visit the job site regularly. He continued to remind Bruno of the travel card requirement, which he also raised with Brogno after he came onto the job, either through Bruno Battiston or directly. He also began to speak to them about their organizing obligations to the UAAt that time, Telford was both seeking information which might help the OPC and UA Local 46 in an application under sections 1(4) and 69 of the Act with respect to Centro, Malfar Mechanical Inc. and Torontario Plumbing and Heating Inc. (Board File No. 1792-95-R) and was considering the possibility of trying to certify Centro. Telford also raised the possibility that internal union proceedings could be taken against Bruno Battiston and Brogno for their violation of the UA's travel card rules.

26. Telford pursued this with Bruno Battiston and Brogno during each successive visit at the job site. He became increasingly persistent and began to suggest that if they didn't "help him" (by signing cards so that Centro could be certified), they would likely be charged under the International constitution for working without a travel card. By the end of the summer, when Telford began to concentrate on trying to certify Centro, and after, as he put it, he felt he had explained their obligations sufficiently and it was apparent that Bruno Battiston and Brogno were not going to "co-operate" and live up to those obligations, Telford decided to increase the pressure and, in late August 1995, he filed charges, under section 223(n) of the International Constitution, alleging that Bruno Battiston and Brogno were "working at the Piping Trade within the jurisdiction of Local 221 without depositing a travel card."

27. After receiving notice that he and Bruno Battiston had been charged, Brogno telephoned the OPC to see if the situation could be "straightened out". As a result of this telephone call, Brogno and Bruno Battiston met with Joe Ferro and Brian Christie, two OPC representatives in Toronto. Christie and Ferro also raised the issue of co-operation to certify Centro, and it was suggested to Bruno Battiston and Brogno that they could "help us (the UA) and help themselves" by signing membership cards so that Centro could be certified. In that respect, Ferro and Christie indicated that if Bruno Battiston and Brogno helped organize the company, they would see what could be done about the charges against them. Brogno and Bruno Battiston declined, and, on or about October 2, 1995, UA Local 221 held a "trial" with respect to the travel card charges laid by Telford.

28. Brogno and Bruno Battiston were both convicted in UA Local 221's jurisdiction without obtaining a travel card, contrary to the International constitution. A $500.00 fine was levied against each of them in that respect. This is the usual fine levied in such cases, and is also the maximum fine which can be levied (without the approval of the International according to Telford, although there doesn't appear to be anything in section 223 of the UA constitution which would permit a larger fine or some other penalty).

29. After Bruno Battiston and Brogno were notified of their respective convictions and fines, Telford approached them again. He indicated that he was more interested in certifying Centro than he was in their $500.00. Telford said he was not after them; he wanted Centro unionized. When Bruno Battiston and Brogno continued to reject these advances, Telford decided to apply even more pressure. First, he told them that if they did not co-operate they could be charged under the International constitution for working for a non-union company; namely, Centro. Later in October 1995, when Bruno Battiston and Brogno still didn't co-operate, Telford quickly charged them with working for an employer which did not have a collective agreement with any UA entity, contrary to section 198(a) of the International constitution. This is a much more serious charge, and upon conviction can result in a UA member being expelled from the union or other penalties, including a fine of up to $10,000.00. These charges had to be filed through UA Local 46, Bruno Battiston's and Brogno's home local union, and required Local 46's co-operation in that respect.

30. Bruno Battiston and Brogno still would not sign UA membership documents to support an application for certification with respect to Centro.

31. In early January 1996, Loris Battiston became employed by Centro at the Kingston job sites. Within a week, Telford was on him too. He told Loris Battiston about what had happened to Bruno Battiston and Brogno and the charges laid against them, and said that he was preparing charges against Loris Battiston as well. Such charges were in fact laid.

32. Also in early January 1996, Bruno Battiston and Brogno went to UA Local 46 to pay their monthly membership dues for the year as it has been their habit to do. They were told that they would not be allowed to pay their dues for all of 1996 but that U. A. Local 46 would accept their dues for January and February 1996 pending the payment of the travel card fine and the disposition of the "working non-union" charges against them.

33. In mid January 1996 Bruno Battiston and Brogno were notified that February 7, 1996 had been fixed as the trial date for the "working non-union" charges against them.

34. After that, Telford approached Bruno Battiston and Loris Battiston and Brogno together. He told them, directly, through Bruno Battiston, or both, that if they would help him he would help them. Telford said that if they would help him get Centro certification he would see what he could do about getting the charges dropped. Telford did not actually promise that the charges would be dropped, but that was the clear implication of his approach to the three employees who clearly believed that Telford had the ability to make the charges "go away", and that he would do so if they "co-operated" with him.

35. Still Bruno Battiston and Brogno did not cave in. Nor did Loris Battiston. They talked among themselves and approached Cosentino, who they had kept informed throughout.

36. Bruno Battiston, Loris Battiston and Brogno were clearly worried, especially Bruno Battis­ton who was concerned about losing his membership and the effect that that would have on his pension and his ability to retire in a few years, and Brogno, who was worried about losing his benefits and his ability to work for unionized contractors. Seeing this, Cosention made arrangements for them to see a lawyer on a Sunday in late January 1996. (I reject Cosentino's denial in that respect. I find it highly improbable that the three employees would have done so, or that if they had they could have found a lawyer who could advise them in the area so quickly.)

37. When this lawyer indicated that little or nothing could be done, Cosentino took them to another lawyer, whose advice was much the same; that is, that the three employees were in a difficult position and that while some proceedings might be open to them there really was nothing they could do and they should do as the union asked.

38. As a result, Bruno Battiston, Loris Battiston and Brogno felt that they had no choice, and in order to extricate themselves from the situation Brogno telephoned Telford and told him that they were ready to sign. On Monday, January 22, 1996, they met with Telford and signed application for membership in the UA (and not, I observe, in any constituent UA Local of the OPC). The following day, another employee also signed an application for membership, and on January 25, 1996, this application was filed. Subsequently, a representation vote was held as aforesaid.

39. Bruno Battiston and Brogno have never paid the $500.00 fines levied against them for their travel card violation convictions. No UA entity has pursued payment of those fines, and it is apparent that the UA has no intention of trying to collect those fines. There has been no trial with respect to the "working non-union" charges against Bruno Battiston or Brogno. The February 7, 1996 trial was cancelled. It has not been rescheduled and it is apparent that these charges will not be proceeded with. Indeed, by letter dated February 12, 1996 in that respect, Telford wrote to UA Local 46 as follows:

Please be advised that Local 221 has dropped all charges against Bruno Battiston and Carmine Brogno.

I would also like to make you aware that Mr. Battiston and Mr. Brogno were instrumental in helping Local 221 certify Centro Mechanical.

The Executive Board of Local 221 has agreed to drop the $500.00 fine for Travel Card violation and we will not be proceeding with any further charges.

I would like to thank you for your co-operation in this matter.

40. Similarly, Loris Battiston has not gone to "trial" on his travel card charges and it is apparent that these will not be pursued either.

IV Positions of the Parties

41. The UA's position is that neither Telford nor any other UA Representative has done anything improper. Further, the UA argues that the Board should keep up with the changes to the Act made by Bill 7 and not continue to require or be particularly concerned about membership evidence submitted in support of an application for certification, which counsel referred to as "silly little cards" when the certification system in this province is no longer document based. The applicant argued that the Board should not be paternalistic when it comes to representation votes, and that there is no indication at the employees ability to freely cast their ballots in this case has been compromised, or that the representation vote does anything other than reflect the true wishes of the employees. Finally, the applicant points to the employer's conduct (at a meeting at which Telford and another union representative were also present, and in taking the three employees to lawyers, for example) as being improper conduct which the Board should take into consideration.

42. Centro complains that the applicant has breached sections 76 and 87(2) of the Act. These provides that:

43. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

87.(2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,

(a) discriminate against a person in regard to employment or a term or condition of employment; or

(b) intimidate or coerce or impose a pecuniary or other penalty on a person, because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.

Section 11(2) of the Act, upon which Centro relies in support of its submission that this application should be dismissed, provides that:

11. (2) Upon the application of an interested person, the Board may dismiss an application for certification of a trade union as the bargaining agent for the employees in a bargaining unit in the following circumstances:

12. A trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions has contravened the Act.

13. The result of the contravention is that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about

being represented by the trade union.

3. No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.

V Decision

43. I turn first to the UA's arguments with respect to the scheme of the current Act. As the Board observed in Burns International Security Services Limited, (1996] OLRB Rep. March/April 192 (at paragraphs 24-38), prior to Bill 7 and the proclamation of the current Act, the certification process in this province was a document based system in which the representation vote was essentially a residual mechanism, and the vast majority of certification applications were disposed of without a vote. Bill 7 changed all of that, and under the current Act the certification system is vote based. The intent of the Act now is the provide a "vote in every cases" through a streamlined representation vote system which is designed to avoid front-end litigation and give employees and opportunity to express their wishes in a quick representation vote. The fact that the certification process is no longer document based, in the sense that now the outcome of the certification application is determined (subject to section 11) by the result of the representation vote rather than by an assessment of documents, does not mean that there are no documents involved, or that the documents which are involved are unimportant.

44. On the contrary, now as before, an application is made by filing an application for certifica­tion document in the prescribed form, and the Act contains legislated pleading and filing rules which no prior Labour Relations Act did (previous such rules were always contained in the Board's Rules of Procedure). In that respect, section 7(11) requires that a trade union applicant deliver a copy of its application to the employer, and section 7(12) requires that it include two things in its application for certification: a written description of its proposed bargaining unit, and an estimate of the number of individuals in it. Section 7(13) requires that the union file a list of its members in the proposed unit and evidence of their status as union members, something which both historically and under the current scheme has primarily consisted of applications for membership or, in the construction industry certifi­cates of membership. Then, section 8(2) requires the Board to assess the union's documents, and if upon doing so the Board determines that 40% or more of the individuals in the trade union's proposed bargaining unit were members of the union at the time the application was filed, the Board is required to direct that a representation vote be taken in the voting constituency (which is determined under section 8(1) and which may be different from the applicant's proposed bargaining unit). Consequently, perhaps the UA considers membership evidence and the Board's regard to it to be "silly", but the fact is that the Act requires such evidence and the union cannot obtain a vote without it.

45. Having said that, it is not at all clear that under the current Act the Board should or even that it can inquire into any alleged deficiencies, irregularities or other problems in an applicant trade union's membership evidence, given that section 8(9) of the Act provides that when disposing of an application for certification, the Board shall not consider any challenge to the information provided under section 7(13), which includes the union's membership evidence. This suggests that the Board's pre-Bill 7 approaches and jurisprudence with respect to membership evidence issues may have little application under the current Act. Still, such issues and evidence with respect thereto may well be relevant to the Board's consideration when a section 11(2) application is made (as in this case), although the focus may well be on the effect such things have on the reliability of a representation vote.

46. In this case, however, I find it unnecessary to determine that question or to examine it further.

47. Among other things, section 76 of the Act prohibits a person or a trade union from using intimidation or coercion to try to compel any person to become a member of a trade union or to refrain from any exercising any other rights under the Act. In this case, I am satisfied that that is precisely what the applicant, primarily through UA Local 221's Business Manager John Telford, has done. The applicant sought to use its power and internal processes over Bruno Battiston, Loris Battiston and Brogno to create membership evidence which was filed in support of this application and to support the application in the representation vote, and it was successful in doing so. In doing so, Telford and the applicant have contravened section 76 of the Act.

48. I am mindful of the fact that construction job sites are neither tea parties nor labour relations laboratories, and that it is unreasonable to expect that employees will not be exposed to various social and other pressures, perhaps severe pressures, in the context of the union organizing campaign (indeed, I have said so in Bruno Plumbing & Contracting Inc., Board File No. 2037-94-R, October 24, 1994, unreported, and, in a non-construction context, in Can-Eng Metal Treating Ltd., [19881 OLRB Rep. May 444). In that respect, employees may find themselves exposed to salesmanship, electioneering or propaganda from those who favour or from those who oppose an application for certification.

49. The Act does not immunize or protect employees from this. Many years ago a "silent period" was tried as part of the certification process and was rejected by the Board as unworkable. The Board does not police etiquette or social relations.

50. However, this does not mean that either a trade union or anyone else can do whatever they wish with respect to an application for certification. The Act protects employees from undue influence by prohibiting everyone from using intimidation or coercion to compel them to support a particular side or to exercise their rights under the Act in a particular way. A trade union enjoys a considerable amount of latitude in the conduct of its affairs generally, and specifically in the way it approaches certification. But a trade union is a law onto itself only within the parameters of the laws which govern everyone in this province, in this case the Labour Relations Act. Accordingly, while a trade union has the right to enforce its constitution and by-laws and to expect that its members will abide by its constitution and by-laws and have regard to both their rights and obligations, that constitution and those by-laws do not take precedence over the Act.

51. In this case, the applicant used its constitution for an improper purpose: to intimidate or coerce Bruno Battiston, Loris Battiston and Brogno into doing something they clearly did not want to do; that is, to support an application for certification of Centro. Bruno Battiston and Brogno resisted the applicant's attempts to intimidate and coerce them for months until the applicant escalated its efforts to the point that they felt they had no alternative and they could no longer resist the UA's threat to their personal and economic well-being in circumstances in which they felt they had no option but to do as Telford and others asked.

52. It was only then that they agreed to sign the membership evidence which got the UA into position to file the application for certification in this case. Similarly, Loris Battiston, Bruno's son, was made aware of what was being done to Bruno Battiston and Brogno, and when Bruno Battiston, who was perceived by everyone involved to he the pivotal one of the three employees, caved in to the applicant's pressure it was inevitable that Loris Battiston would do so as well.

53. In arriving at this conclusion, I have applied an objective test which the Board has long applied in both situations by asking: was it more likely than not that the applicant's conduct was such that a reasonable employee of average intelligence and fortitude would have his/her ability to exercise his/her rights under the Act and to express his/her wishes with respect to being represented by the union in his/her dealings with his/her employer compromised, such that the representation vote taken does not likely reflect the trues wishes of the employees in that respect? Applying such an objective test does not mean that the Board cannot have regard to the subjective evidence of the persons effected, and I did so in this case.

54. The applicant approached each of Bruno Battiston, Brogno and Loris Battiston on the job site very soon after each came onto the Kingston jobs as employees of Centro. When Bruno Battiston did not respond favourably to Telford's request for assistance, Telford decided to try to persuade him by applying pressure under the International constitution. First, he told Bruno Battiston he could be charged, then he threatened to charge him, and then he did charge him, first with the less serious but nevertheless significant travel card violation, and then with the very serious "working for a non-union contractor" violation which could have resulted in Bruno Battiston being expelled from membership in the UA. Telford followed the same pattern with Brogno, always also making sure that Bruno Battiston and Brogno knew what was happening to the other as well. Telford began the same pattern with Loris Battiston, although he didn't get to the "working non-union charge" with him, notwithstanding that he telescoped the time frame in which he operated. At every step, as he increased the pressure Telford offered the three employees a way out, and only one way out, that if they would "help" him by certifying Centro he would help them with their problems; namely he would go away and he would make the charges against them go away. This was not a situation in which Telford and the applicant was seeking to enforce to protect the integrity of the UA's constitution and by-laws. If that is all this had been about, and no connection had been made with the employees employment with Centro or the applicant's attempt to certify Centro, there would have been no breach of the Act. But that wasn't the case. Even if part of the motivation was to enforce the UA's internal rules, it is clear that from the beginning the primary motivation was to intimidate and coerce the employees into participating and helping the applicant in its attempt to certify Centro, notwithstanding and without regard to the employees own wishes. This motivation is manifest from the fact that throughout Telford and others told the employees that the charges and even the fine which had already been levied would go away if they gave their "help", from the fact that the fines have never been collected and the UA has no intention of trying to collect them, from the fact that Bruno Battiston and Brogno have been allowed to pay their dues and are considered to be members in good standing notwithstanding their outstanding fines, from the fact that the UA has no intention of pursuing the working non-union charges, and from Telford's February 12, 1996 letter to UA Local 46.

55. Further, I am satisfied that "helping" the applicant in this case meant both signing the requisite membership documents and voting in favour of certification. I reject the assertion of Brogno and the suggestion in Loris Battiston's evidence to the contrary as completely implausible in the circumstances. Helping to certify Centro meant exactly that, and there could be no certification without a vote in favour of the applicant.

56. (I note that little attention was paid in argument to Centro's allegations that the UA had also breached section 87(2) of the Act, a proposition which was arguable (as I ruled early in the proceeding) but quite tenuous. Further, a finding in either direction in that respect would neither affect the result nor add anything useful to this decision. I therefor find it unnecessary to deal with that allegation.)

57. Finally, I am satisfied that no other remedy, including the taking of a further representation vote, would be sufficient to counter the effects of the applicant's contraventions of the Act. In the construction industry, the only persons who are entitled to cast ballots in a representation vote are the employees in the bargaining unit on the day the application is made (Crete Flooring Group Limited, [1992] OLRB Rep. July 792). Consequently, the same 5 people who voted the first time would be entitled to vote again. Notwithstanding Brogno's suggestion that no one would know how anyone voted, such a bargaining unit is sufficiently small that a very good guess could be made and I am satisfied that at least Bruno Battiston, Brogno and Loris Battiston have been so affected by the events in this case that their ballots, if cast, could not be taken as a reliable indicator of their true wishes, particularly since they no longer have a connection with Centro, but continue to be members of the UA.

58. The application for certification is therefore dismissed.

VI Board File No. 0110-96-U

59. This brings me to Board File No. 0110-96-U. I have not previously mentioned it because the disposition of this complaint under section 96 of the Act could not affect the disposition of the certification application. The connection between the two matters is that it involves two of the same employees (Brogno and Loris Battiston), as well as two new employees, and Centro. I suppose they were scheduled to be heard together because they involve the same parties and many of the same persons, but it did create certain procedural wrinkles which the parties fortunately took a sensible approach to.

60. The applicant alleges that Centro has breached sections 5, 72 and 86 of the Act. Section 5 provides:

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

This is a statement of one of the fundamental underlying principles of the Act. It is not an unfair labour practice provision and has never been considered by the Board to be a provision which can be violated in the sense alleged in a section 96 complaint. That is what the unfair labour practice provisions are for and it is those unfair labour practice provisions which protect the right articulated in section 5. Sections 72 and 86(2) (the operative subsection of section 86 for purposes of this complaint), provide that:

72. 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.

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

(a) the trade union has given notice under section 16, in which case subsection (I) applies; or

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

60. The applicant alleges that Brogno and Loris Battiston were hired by Centro at a wage rate of $27.00 per hour (inclusive of vacation pay) to work 9.5 hours per day and that they were to have their travel, accommodation and meal expenses paid for by the company through a company credit card, and that these were the terms and conditions of employment in effect at the time this application was made and which were in effect at all material times. Centro does not dispute this. The applicant also alleges, that on March 8, 1996 Brogno and Loris Battiston were advised of a unilateral change in these terms and conditions and specifically that Centro would no longer be paying out-of-town employees (which Brogno and Loris Battiston are) their travel or accommodation expenses. Because this change made it impractical for Brogno and Loris Battiston to continue working in Kingston for Centro, they quit. Centro agrees that Brogno and Loris Battiston quit but otherwise joins issue with the applicant with respect to these allegations.

61. Further, the applicant alleges that, on March 11, 1996, two new employees, Mark Eakins and Robert (Kim) Choate were hired by Centro to work in Kingston. The applicant alleges that they were hired at a rate of $27.00 per hour (inclusive of vacation pay), and that notwithstanding what Brogno and Loris Battiston were told, they were advised that their accommodation would be paid for, that they would receive a $20.00 per day meal allowance and that they would be provided with transportation to Kingston. The applicant alleges that these two employees were in fact paid only $25.00 per hour and that there was some problem with their meal allowance.

62. The applicant claims 18 hours (2 days) wages for Brogno and Loris Battiston as damages for the alleged breaches of the Act with respect to them. It also claims the alleged wage differential of $2.00 per hour for a period of 6 weeks for Choate and a period of 2.5 weeks for Eakins.

VII The Facts

63. The evidence reveals the following. Brogno and Loris were both effectively hired by Bruno (again, it is not disputed that Bruno is an "employee" within the meaning of the Act for the purposes of these proceedings). Bruno Battiston telephoned Brogno one Saturday early in June 1995 and asked that he would like to work for Centro in Kingston on starting on the following Monday. They agreed that Bruno Battiston would pick Brogno up at his house, but it is not clear whether Bruno did that or Brogno went to Bruno Battiston's house. In any case, after that, Carmine did go to Bruno Battiston's house every Monday morning. At first, they then proceeded to Malfar Mechanical's shop, which it appears Centro was using, where they picked up another employee and then drove to Kingston. Subsequently, they stopped going to the shop and employees simply met at Bruno's house early every Monday morning and drove to Kingston. At first they used a truck which Bruno rented (and was reimbursed for). Subsequently, they used a truck provided by Centro.

64. These employees (and there were other Centro employees at the Kingston sites as well) stayed in Kingston during the week, returning to Toronto on Friday evening or Saturday morning, apparently depending on how Bruno Battiston felt about it. Brogno was paid $27.00 per hour and all of his travel, accommodations and meal expenses were paid for by Centro. Loris Battiston, who became an employee much later and after the travel pattern was well-established also received $27.00 per hour and had all of his travel, accommodation and meal expenses paid for by Centro. Because he lives with his father, Bruno Battiston, he left with him for Kingston.

65. At the time the application for certification herein was made, four employees travelled together from Bruno Battiston's house in Toronto to Kingston: Bruno Battiston, Loris Battiston (who lives with Bruno), Brogno (who lives approximately one mile away) and Johnny DeSimone (who lives two houses away from Bruno Battiston).

66. After the representation vote was held in the certification proceeding, Bruno Battiston decided to quit his job with Centro, having obtained new employment with an acquaintance of his at Network Mechanical in Toronto. I reject Bruno Battiston's assertion that he gave two weeks notice to Centro (something which was suggested in an unresponsive answer he gave to a question he was asked by counsel for Centro in chief). His recollection of material events was less than satisfactory, and this assertion is inconsistent with the evidence of Brogno and Loris Battiston and is improbable in the circumstances.

67. On the evidence, it appears that Bruno Battiston grew tired of travelling to and from Kingston, of living an evening away from home during the week, and of the job itself, and that he decided that if he could obtain a job in Toronto he would leave Centro. He told the other employees, including at least Brogno and Loris Battiston, this, although it is not clear when. Bruno Battiston did obtain such a job, with Network Mechanical in March 1996. On or about March 8, 1996, the last day he worked for Centro, he told the company that he quit and he returned Centro's truck and credit card which he had been using to pay for his and other employees out of town expenses. Bruno Battiston went to work for Network Mechanical on March 11, 1996, the Monday after he quit Centro.

68. Brogno and Loris Battiston both said that they too had obtained jobs with Network Mechani­cal, which they were originally to begin the Monday after that, on March 18, 1996. Accordingly, notwithstanding the lack of communication which they professed in this and other areas, it seems likely that they knew that Bruno was leaving Centro before Centro did. They also clearly knew that they were also going to quit before the travel expenses issue was raised on March 9th or 10th, 1996. Equally clearly, Brogno and Loris Battiston had no intention of advising Centro of their intentions before March 15, 1996 the last day they intended to work for Centro.

69. Nevertheless, the travel issue was raised on march 9th or 10th, 1996. Brogno and Loris Battiston said they met with Cosentino at Centro's office. That seems quite unlikely given that it was a weekend, their professed reluctance to go all the way to Centro's office, and and given what they testified was said. Accordingly, I prefer Cosentino's evidence that he spoke to Brogno on the telephone about this and that he had no direct conversation with Loris Battiston on the issue.

70. I find that in that conversation Cosentino told Brogno that Bruno Battiston had quit, which Brogno said he knew, and that Centro had hired a new working foreman. Cosentino testified that he told Brogno that this new foreman would have control of the company truck, and that because he lived in Oakville, Brogno and Loris Battiston would have to meet him at Centro's office on Monday morning to get a ride to Kingston. Brogno and Loris Battiston testified that Cosentino told them they would have to make their own way to Kingston.

71. I am not satisfied that Loris Battiston had any direct conversation with Cosentino on this issue.

72. Cosentino denied that he told Brogno that there had been a change in Centro's policy with respect to travel or any other expenses, or that he said that Brogno and Loris Battiston would have to make their own way to Kingston. He suggested that if they thought that, Brogno must have misunder­stood what he said. Perhaps Brogno did misunderstand, but perhaps he and Loris Battiston simply didn't want to be put to the inconvenience of having to go to Centro's office in order to obtain a ride to Kingston for what they intended to be their last week with Centro. In any event, the following Monday, March 11, 1996, Brogno and Loris Battiston drove together in Brogno's car to Kingston, picked up their tools, quit their jobs with Centro, and returned to Toronto. It is apparent that at some point they were in contact with Network Mechanical because their start date was moved up to Wednesday March 13, 1996. In the meantime, Brogno and Loris Battiston did not work. Instead, according to Brogno, they went fishing or the Sportsman's Show in Toronto.

73. Choate and Eakins began their employment with Centro on March 11, 1996. They were interviewed by Cosentino and two other Centro personnel on or about March 6, and received telephone job offers on or about March 7, 1996. They were asked if they could start the following morning, Friday March 8, 1996. However, they did not start until Monday, March 11th. Choate and Eakins worked for Centro in Kingston for 6 and 2 1/2 weeks respectively, it appears.

74. Eakins did not testify. Choate testified that the wage rate which was discussed and which he understood he and Eakins were to receive was $27.00 per hour (including vacation pay). He denied that there was any discussion of a probationary or trial period, or that Cosentino wanted to see "how they would work out". Cosentino testified that Choate and Eakins were employed at a starting wage rate of $25.00 per hour which was to increase to $27.00 per hour if they successfully completed a three month probationary period. The other two Centro personnel at the interview, including the individual who it appears actually telephoned to offer Choate and Eakins employment with Centro, did not testify.

VIII Decision

75. Section 72 of the Act is an unfair labour practice provision which prohibits an employer from dealing with employees or perspective employees in a manner which interferes with their exercise of rights under the Act.

76. Section 86 of the Act is commonly referred to as a "freeze" provision. Section 86(1) applies to established collective bargaining relationships. Section 86(2) operates to prohibit an employer from altering the rates of wages or any other term or condition of employment, or any right, privilege or duty of employees, without the consent of a trade union which has applied for certification with respect to those employees, until the application for certification has been disposed of. Section 86 is a strict liability provision in that such changes need not be improperly motivated to constitute a breach. The purpose of section 86 is to maintain the working conditions and circumstances in place, in the case of section 86(2), when an application for certification is made so that changes which may influence the way in which employees might respond to an application for certification, whether or not intended to have such an effect, are not made to the circumstances of employment of the employees.

77. Although the "freeze" label has stuck, it is somewhat of a misnomer. Section 86(2) could be read to preclude any change to anything which effects employment while an application for certification is proceeding. However, the Board has interpreted section 86 as operating to preserve the pattern of employment rather than specific terms, condition or other circumstances of that employment. Accordingly, section 86(2) does not operate to preclude an employer from continuing to manage its operations in accordance with the established patter of rights, privileges and duties established in the employment relationship it has with employees who are effected by an application for certification. In Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 859, this was described as a "business as before" approach. However, as the Board's subsequent jurisprudence demonstrates, this is not always an easy test to apply. Nor does it always lead to an obvious result. For example, the Board has found that the "freeze" provisions do not necessarily apply to preclude first time events (see, for example, Grey Owen Sound Joint Homes for the Aged, [1983] OLRB Rep. Apr. 522, and Corporation of the Town of Petrolia, [1981] OLRB Rep. Mar. 261). In an attempt to clarify the "business as before" approach, and to accommodate first time events and lengthy "freeze" periods, the Board has developed the objective "reasonable expectations" test, first expressly articulated in Simpsons Limited, [1985] OLRB Rep. Apr. 594 (particularly at paragraphs 32 and 33).

78. In the result, the Board has taken a flexible and purposive labour relations approach to the statutory freeze under the Act. It could be argued that section 86 contemplates a more static situation, a "deep freeze" if you will, but the Board's approach recognizes that employment relationships tend to be affected by and reflect the dynamic nature of business activity, and is more responsive to the variety of situations which exist in the real world. I note as well that the Canada Labour Relations Board has tried and rejected the static or deep freeze approach in favour of a "business as usual approach" (see Bank of Nova Scotia (Sherbrooke and Rock Forest, Quebec) (1982)42 di 398, 82 CLLC ~116,l58; aff'd sub nom. Bank of Nova Scotia v. Retail Clerks Int'l Union (1982), 83 CLLC ¶ 14,007 (Fed C.A.); Bank of Nova Scotia, Toronto, Ontario [1982] 2 Can L.R.B.R. 21 (CLRB)). The "business as usual" approach has also been applied to statutory freeze legislation in British Columbia, Nova Scotia, Newfoundland and in the United States by the National Labour Relations Board. Finally, the current Act contains a number of significant differences from the previous legislation, but the operative words of section 86 have emerged intact from the Legislature's review, which suggests that it is appropriate for the Board to continue with the approach it has developed. Since the Legislature must be taken to be aware of the Board's "freeze" jurisprudence (including more recent decision like Mohawk Hospital Services Inc., [1993] OLRB Rep. Sept. 873 and Beef Improvement Ontario Incorporated, [1994] OLRB Rep. April 341), it evidently approves of the "business as usual/reasonable expectations" approach.

79. The applicant did not seriously pursue its section 72 allegations. Nor is there anything before the Board which suggests a breach of that section. With respect to section 86(2), it is clear that any change in Centro's policy or practice with respect to paying travel and other expenses of employees who travelled to work from Toronto to Kingston would constitute a breach of section 86(2). However, I am not satisfied that Centro did make any changes in that respect, either with respect to Brogno or Loris Battiston or otherwise.

80. I am mindful of the evidence that establishes that Choate and Eakins were hired by Centro before Brogno and Loris Battiston (or Bruno Battiston for that matter) quit their jobs. However, it was not argued by the application and there is nothing in the evidence which suggests that there was any nexus between this and the travel expense issue. There is nothing in the evidence which suggests that Centro was out to penalize Brogno or Loris Battiston, or that employees who resided in Toronto did not continue to provide Toronto employees with transportation to Kingston. I note that the applicant, which bears the onus of establishing the breach alleged, did not ask Choate about this and called no other evidence on the point. Nor does the fact that Brogno and Loris Battiston were asked to meet the new foreman at Centro's office in order to get a ride to Kingston constitute a breach of section 86(2) in the circumstances. Even if the arrangement between Bruno Battiston and the other employees could be said to constitute an arrangement between the employees and Centro rather than a personal arrangements between the employees, which I doubt, Brogno and Loris Battiston were expressly told that they could make their own arrangements with the new foreman as well. While it is true that the new foreman did not return Brogno's telephone call to him or otherwise contact them in that respect as Brogno requested, Brogno and Loris Battiston continued to be entitled to be provided with transportation to the Kingston job sites and I am satisfied they would have been had they gone to Centro's office. I am not prepared to read anything into the new foreman's failure to contact them, in the absence of any evidence that suggests that there was anything untoward in that failure.

81. Further, Brogno and Loris Battiston drove to Kingston themselves on Monday March 11, 1996. Perhaps in a fit of pique, or perhaps because they already knew they would be starting a Network on Wednesday March 13, 1996, they went to Kingston only to pick up their tools. Having already incurred the expense, the could have in fact have worked the two days the applicant claims damages for, or the whole week for that matter. Instead, they chose to leave and amuse themselves fishing or at the Sportsman's Show. In these circumstances I would not have awarded Brogno or Loris Battiston the damages claimed even if I had found a breach of section 86 of the Act because those damages could easily have been mitigated.

82. I come to a different conclusion in the case of Choate and Eakins. Choate was a credible witness. Cosentino was less so, and I infer from Centro's failure to call as witnesses either of the two company people who were present at the interview that their evidence would not have corroborated Cosentino's testimony.

83. Section 86(2) does not necessarily operate to preclude an employer from hiring new employees at wage rates or subject to terms and conditions different from those of existing employees, although it may do so. Whether or not it does will depend on the particular case. In this case, however, the evidence suggests that all journeymen plumbers, which Choate and Eakins were on the evidence, began work at a wage rate of $27.00 per hour. Further, there is no evidence that any other employee had to go through any probationary or trial period, and however common it may be elsewhere, such periods are not common in the construction industry. Accordingly, I accept Choate's evidence and I find that Choate and Eakins were hired at a wage rate of $27.00 per hour but were paid only $25.00 per hour. Choate and Eakins were therefore entitled to be paid the wage differential as damages. In Choate's case, this amounts to $480.00. Eakins is entitled to $200.00. There is no evidence which establishes any other breach of the Act with respect to Choate or Eakins. In that respect, Choate was asked no questions about the meal allowance issue, and the pay slips which were entered into evidence do not establish that he did not have his meals or accommodation's paid for.

84. In the result, the complaint in Board File No. 0110-96-U is allowed in part. In that respect, the Board:

(a) declares that Centro Mechanical Inc. has breached section 86(2) of the Labour Relations Act, 1995 by changing the wage rate it agreed to pay Robert Choate and Mark Eakins and paying them $2.00 per hour less than agreed;

(b) orders Centro Mechanical Inc. to pay to the applicant, in trust for Choate and Eakins, as damages for the said breaches of section 86(2) of the Act, $480.00 and $200.00, less the applicable statutory deductions, respectively. Choate and Eakins are also entitled to interest on these damages, in accordance with sections 127 through 129 of the Courts of Justice Act.