Service Employees Union Local 268 v. Fort William Clinic, 1997 CanLII 15563

Ontario Labour Relations Board

[1997] OLRB REP. MAY/JUNE 406

3510-95-U; 2359-96-U; 2360-96-FC; 2990-96-R Service Employees Union Local 268 affiliated with the S.E.I.U., A.F. of L., C.I.O. and C.L.C., Applicant v. Fort William Clinic, Responding Party; Sharon Coslett and Marnie MacMillan, Applicant v. Service Employees Union, Local 268 Affiliated with the S.E.I.U., A.F. of L., C.I.O. and C.L.C., Responding Party v. Fort William Clinic, Intervenor

BEFORE: Gail Misra, Vice-Chair.

APPEARANCES: Glen Chochia and Glen Oram for the Service Employees Union, Local 268; Fred Bickford and John Johnson for the Fort William Clinic.

DECISION OF THE BOARD; June 11, 1997

1. Board File Nos. 3510-96-U and 2359-96-U are section 96 complaints filed by the Service Employees Union, Local 268 (the "union") claiming violations of the Labour Relations Act, /995. Board File No. 2360-96-FC is an application for first contract direction, pursuant to section 43 of the Act, filed by the union on November 7, 1996. Board File No. 370 1-95-U is a section 96 complaint filed by the Fort William Clinic (the 'employer" or the "Clinic") claiming union violations of the Act. Board File No. 2990-96-R is a termination application filed by a group of employees of the Fort William Clinic on December 10, 1996, which has been deferred until after a decision has been reached in the first contract case.

2, The employer chose at this time not to pursue Board File No. 370 1-95-U, so that matter is adjourned sine die for a period not exceeding one year. Unless within that time either party requests that the Board proceed with the matter, it will be terminated. The parties agreed that any evidence led in these proceedings which may be relevant to the employer's application will be considered should this file be reactivated. I will remain seized of this matter,

3. Twenty one days of hearing were held between November 28, 1996 and May 7, 1997 in order to hear the first contract application and the two union section 96 applications. The parties agreed to waive the provision in section 43(l) of the Act for the first contract application to be heard and decided within 30 days of the date of application.

4. Given the numerous issues raised by the parties to be dealt with by the Board and the vast quantity of evidence heard, this decision has been divided into sections so as to address key questions. While there have been various characterizations given to meetings and events, there is not much dispute about what transpired. The facts as I have found them are outlined in each section. Where it has been necessary to decide whose version of events I am accepting, I have indicated why I prefer the testimony of one witness over another.

Reconsideration of Board's January 29, 1997 decision

5. On December 24, 1996 a decision issued in Board File No. 2990-96-R, the termination application filed by a group of employees. For reasons outlined in that decision, the Board was of the view that it was most appropriate in the circumstances of this case to continue to hear the first contract direction application so that the parties to that application would have a resolution to that matter before the Board embarked on a consideration of the termination application. Thereafter, on January 27, 1997, the employer made a non-suit motion on the first contract application. On January 29, 1997 the Board issued a decision denying the non-suit motion. Following the release of that decision the Board received requests for reconsideration from counsel for the termination applicants and the employer. On February 4, 1997 I ruled orally that I would not be reconsidering my decision. The following are my reasons for that ruling,

6. By letter dated February 3, 1997, counsel for the employer argued that the decision was based on a patently unreasonable finding of fact and that the Board had made an error in its interpretation of section 43. Counsel argued further that the standard of scrutiny on issues of law is one of correctness. Mr. Bickford believed that the Board's findings led to a perception of unfairness.

7. Peter Hollinger, acting for the termination applicants, also wrote to the Board on February 3, 1997 saying he was "surprised" that he had not had the opportunity to appear to argue the non-suit motion and that there had therefore been procedural unfairness at this juncture. Hence he too was seeking reconsideration of the Board's decision. Following Mr. Hollinger's letter to the Board, the Board received a letter from Mr. Bickford stating he too was making this argument in support of' his reconsideration application.

8. Dealing first with Mr. Hollinger's argument, Mr. Hollinger was clearly told by the Board on December 19, 1996 that the Board does not inform interested parties who choose not to attend at the hearing of when any argument will be heard, Indeed, the Board does not know when a motion may be made in which any absent interested party may feel it has an interest in. It is the duty of those interested in a proceeding to make themselves available and there is no obligation on the Board to give parties a running commentary on what is happening. Hence, had Mr. Hollinger been interested in the Board proceedings he had the option of attending at the hearing, or of keeping in touch with counsel for the other parties about what was happening. In that regard, it is noteworthy that the Board did not at any point make the termination applicants a party to the first contract application, It simply indicated that they were free to attend should they wish to do so. For these reasons, there was no legitimate basis requiring me to reconsider my decision.

9. I will now deal with the employer's other grounds for seeking reconsideration, In the decision on the non-suit motion the Board indicated it was applying the standard of proof of a prima facie case. No findings of fact were made and the Board simply indicated it was satisfied that there was some evidence before it upon which the union's application could be sustained. If the employer is dissatisfied with the Board's decision because it believes the Board has incorrectly interpreted the statute or has been patently unreasonable in its findings of fact, it is open to it to seek judicial review. A reconsideration application on these grounds is inappropriate.

10. Finally, the Board considered the employer's argument that there was a perception of procedural unfairness because the Board had made "findings without any evidentiary basis". This argument is completely without merit. When the Board informed the parties that it would consider the employer's non-suit motion, it let the employer make this motion without putting the employer to its election about the calling of evidence. The Board also informed the parties that it would not make any statements in its decision about the evidence so as to give one side a "half-time score". As noted earlier, the Board made no findings of fact in its decision of January 29, 1997. Thus, the Board was of the view there were no grounds for a perception of unfairness in this case.

11. For all of the above reasons the Board declined to reconsider its decision of January 29, 1997.

General Background

12. The Fort William Clinic is a medical clinic providing health care to the general public on a for-profit basis in the city of Thunder Bay. It has been in operation for more than 50 years. The Clinic comprises a partnership of general practice and specialist physicians, and associate physicians.

13. The Service Employees Union, Local 268, was certified on an interim basis to represent all of the employees of the Clinic on May 30, 1995. The union and the Clinic resolved their dispute with respect to the status of two individuals, and the Board issued a final certificate to the union on July 14, 1995. The union gave the employer written notice of its desire to bargain a first collective agreement on June 12, 1995.

Board File No. 3510-95-U, Section 96 Application filed by the Union on December 27, 1995

14. This application made by the union initially contained a number of allegations of violations of the Act. However, early in the hearing the union withdrew all except two allegations and it is with respect to those matters that the Board heard evidence. The union alleged that for at least 15 years prior to November 22, 1995, the employer had given all employees a cash bonus at Christmas time, and had held a Christmas party for all staff, doctors, and their respective partners and spouses. However, on November 22, 1995 the employer advised the union it would not be paying the Christmas bonus, and would not be holding the Christmas party that year. The union claims that through this decision the employer has altered the terms, conditions, rights and privileges of the employees, contrary to section 86 of the Act, and has breached sections 5, 70, 72, and 76 of the Act.

15. The Clinic's position is that the Christmas bonus and party were discretionary items which were decided upon by the Clinic partnership annually, so that they were not working conditions of the sort contemplated by the Act. In addition, since the Clinic was experiencing serious financial constraints at that time, the Christmas bonus and party were only two of a number of cost-cutting measures taken by the partnership. Thus, it is argued that the Clinic has bona fide business reasons for exercising its discretion as it did, and it did not act contrary to the Act. Rather, it is suggested, the employer itself has protection pursuant to section 86 to protect its rights and privileges, and the decision to grant the Christmas bonus and hold the party were within the ambit of its privilege.

16. In order to establish the financial constraints the employer was under there was a fair amount of evidence led about the effect of the imposition of the Social Contract Act on physicians in Ontario such that it resulted in "caps" on and "clawbacks" of fees from April, 1993 to March 31, 1996. Thus there were to be expenditure targets (caps) for the total billings of Ontario physicians, as a group, and if those targets were not met, there would be clawbacks from physicians' fees so that the government targets could be met. As a result of this regime a lot of physicians left Ontario for the United States, and apparently continue to do so to the present. The loss of doctors in the Thunder Bay area is more acute because it is already a designated underserviced area. Thunder Bay was also the first area chosen for the downsizing of hospitals and the reduction in hospital beds, thus making it a less desirable location for doctors to practice. When hospital beds are reduced there is less operating room time allocated to specialist physicians, thereby reducing their ability to work and collect fees based on the Ontario Health Insurance Plan ("OHIP") Fee Schedule. All of the Thunder Bay medical clinics experienced a loss of physicians as a result of these governmental actions. The Fort William Clinic has lost between five and eight doctors since 1993. The Spence Clinic has lost 8 doctors, and the smaller Thunder Bay clinics have lost a total of 10 to 12 doctors.

17. In March, 1995 the Ontario Medical Association ("OMA") informed its members that as a result of expenditure targets having been exceeded there would have to be a diminution in billings. It suggested that physicians reduce utilization by closing their offices or clinics on certain days. In the Thunder Bay area the OMA suggested that there be four "District Rae Days" held for this purpose. The Fort William Clinic closed for one or two days that year thereby losing two days of revenue. From 1993 on, it had also closed for four "decentralized clinic" days per year, which were local association educational days held on Fridays for the physicians. Prior to that time the Clinic had remained open for staff on decentralized clinic days, so that they could do work which it was difficult to get done on busy regular days. However, after the imposition of the Social Contract, the Clinic closed on decentralized clinic days and staff had to either take a vacation day, use banked hours, or go without pay for those four days a year. These days were also intended to lower utilization for the physicians. It seems that while utilization would go down as a result of the Clinic being closed, there would be a heavier schedule of appointments on the day before and the day after as patients would need to see the physicians who had been unavailable on the "Rae Day" or the "Decentralized Clinic Day". This phenomenon is also generally observed after weekends when the Clinic is only closed for two days. Nonetheless, it seems that total revenues from billings would be reduced as a result of the Clinic closing for decentralized clinic days and "District Rae" days.

18. In addition to the days the Clinic was closed, there were changes made to the Fee Schedule so that certain services which previously had been covered by OHIP were dc-listed, and others had their fees reduced. The Clinic suffered adverse consequences as a result because it could not collect the fees from individual patients, and its bad debts went up. Income was reduced by the bad debts and because many patients simply chose not to have a procedure done if they had to pay for it.

19. As a result of physicians leaving the Clinic, between May, 1995 and May, 1996 the Clinic laid off four full time employees who had been Doctor's Assistants, thereby cutting its overhead costs. Between the time of certification and November, 1996 the staff were reduced from 50 employees to 39 employees. These layoffs were due to the number of physicians who had left the Clinic and included Medical Records Clerks, Doctor's Assistants and a Medical Dicta Typist.

20. The Clinic Executive Director, John Johnson, sets an annual budget for the Clinic and then reports to the partnership monthly about how the finances are in relation to the budget forecast. Decisions are made about expenditures and reductions in expenditures based on the progress of the budget.

21. It is of particular importance to the Clinic to keep its expenditures under control because of the impact they have on the total overhead for the Clinic, When recruiting new physicians to the Clinic one of the most important questions posed by prospective physicians is the ratio of expenditures to income. The various Thunder Bay clinics are very competitive in this respect because the extent of overhead affects the amount of profit a clinic makes, and hence, how much the partners can earn, In 1995 the Clinic had lost a number of physicians so that the remaining physicians, both partners and associates, had to absorb an increasing proportion of the cost of the Clinic overhead.

22. The percentage of overhead of the Clinic represents the difference between the total of the billings and other income to the Clinic, the Clinic expenses, and the income of the physicians. For example, an associate physician works in that capacity for one year before entering the partnership. During that year the person receives a 60:40 split, with 60% of his/her billings going back to the physician as income, and 40% being allocated to overheads. Partners generally have a split of between 35 and 55% for overheads, and the remaining percentage as income, depending on the type of practice.

23. In June, 1995, in order to set the annual budget and deal with diminishing income from OHIP billings, all partners of the Clinic were asked to come up with cost-saving ideas to be presented to the Finance Committee of the Clinic at its July meeting. Many ideas were presented, and two lists were developed. The first list included those ideas which the Committee would recommend that the partnership implement. The second list contained ideas which required further work or development. The Finance Committee made its recommendations to the September, 1995 partnership meeting. Some of the recommendations adopted by the partnership included not offering the Christmas bonus, not having the Christmas party, withdrawing the Clinic's sponsorship of the MeKellar Hospital Physician Golf Tournament, not renewing magazine subscriptions, and changing the travel policy for physicians so that they would only be paid for one trip out of town, instead of the former two trips, per year. Ideas accepted for further study included reviewing and increasing non-covered medical procedures, selling parts of the Clinic real property, and planning other uses for the vacant space left in the Clinic building by departing physicians. The partnership apparently considered the Christmas bonus and party as discretionary items, although this view had never been communicated to the employees, who had been receiving the bonus and attending the party for at least IS years.

24. From 1992 up to and including 1995, the issue of the Christmas bonus went to the partnership of the Clinic each year sometime between October and December. According to Mr. Johnson, the partners would decide whether a bonus would be given, and if so, for how much. It appears that for at least 13 years the Clinic had paid a bonus of $75 to each employee. In October, 1992 the decision was made to increase the bonus to $100 per employee. The bonus would be given out on the last working day before Christmas, at a small employee luncheon held at the Clinic. One physician would dress up as Santa Claus and would then call up each employee and give her the bonus (cash in an envelope) and her gift from the employee gift exchange.

25. The Christmas party was also discussed at about the same time as the bonus, or earlier, so that arrangements could be made to book a location for the party. The party is hosted by the Clinic for all staff, physicians, retired employees and physicians, radiologists from MeKellar Hospital, staff of the store and laboratory which are housed in the Clinic premises, the cleaning staff, and all of their respective spouses and partners. Since 1992 the party had been held at various locations with differing configurations of an open bar, drink tickets, wine at the tables, etc. Each year a decision was made about what would be done, but the main components of a dinner and dance remained constant.

26. Debbie Karpowich, a union steward and member of the negotiating committee, testified that she and her fellow employees took the cancellation of the bonus and party as a punishment for unionizing. It is noteworthy that the union raised the issue of the rumoured cancellation of the bonus and Christmas party at the first evening of negotiations on November 6, 1995. In a December 7, 1995 letter from Glen Chochla to Fred Bickford after the Clinic decided to cancel the Christmas bonus and party, and after the union had raised its concerns about this decision with the Clinic, the union suggested that the employer hold the party and give the bonus in 1995, and that the parties negotiate about these matters at the bargaining table. That did not happen, and the union tabled a new proposal in January, 1996 during collective bargaining. The new proposal, designed to address issues like those raised by this complaint, stated as follows:

Article 32.01

Superior Conditions: The Employer will maintain any and all superior terms and conditions of employment including but not limited to benefits (monetary or non-monetary), working conditions or wages, which existed prior to the date of certification. "Benefits" includes but is not limited to, payment of the annual Christmas bonus and provision of the annual Christmas party.

27. Section 86(1) of the Act, commonly referred to as the ‘statutory freeze provision' states as follows:

28. (1) Where notice has been given under section 16 or section 59 and no collective agreement is in operation, no employer shall, 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, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees.

(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and,

(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or

(ii) 14 days have elapsed after the Minister has released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board,

as the case may be; or

(b) until the right of the trade union to represent the employees has been terminated, whichever occurs first.

28. From all of the evidence, it is clear that there was a well-established and long-standing practice of the employer giving employees an annual bonus at Christmas time, and hosting a Christmas party. As noted earlier, the union was certified to represent the Clinic employees in May, 1995, notice to bargain was given in June, 1995, and between September and November, 1995 the employer decided not to give the bonus or hold the party that year. The Clinic did not have the union's consent to change its practice, and section 86(1)(a) and (b) had not transpired. The question the Board must decide in this case is whether the bonus and party are each a right or privilege of' the employees which the employer altered, in breach of section 86(l) of the Act.

29, In reaching that decision it is necessary to consider the rationale underlying section 86, As the Board has stated in its decision in Canadian General Electric, [1965] OLRB Rep. Dee, 649:

…….In our opinion it is manifest that the aim and policy of this section is directed to the protection of the union's bargaining rights and the promotion of meaningful and effective collective bargaining. Once the notice to bargain is given, this section operates to prohibit all alterations without the union's consent, whether they be beneficial or detrimental to the employees concerned, of their wages or other terms or conditions of employment, including any right, privilege or duty of the employer. The section seeks to protect the union's bargaining rights and to promote effective collective bargaining by preserving and maintaining the union's bargaining position for the period stipulated, on the basis of the contracts of employment existing between the employer and the employees on the date of the notice. In other words, the legislation is directed at maintaining the status quo of the wages and other terms and conditions of employment existing under the contracts of employment between the employees and their employer, during the particular period of time stipulated in the section. The union is, therefore, given the opportunity, during this time, to enter upon negotiations and to bargain for a collective agreement, having regard to a fixed point of departure, namely the wages and working conditions existing at the time of notice. In this respect the union's bargaining during this stipulated period will not be undermined nor will it be required to keep pace with and alter its position in accordance with changes in terms or conditions of employment which might otherwise be made as a result of the employer being at liberty to deal directly with the employees. It will be noted that the section gives similar protection to the bargaining position of the employer.

30. The Board has not taken the statutory freeze provision to mean that an employer can make no changes in the course of running its enterprise. As was recognized in Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 859, the employer has the right to manage the business, qualified by the condition that it must manage as it did before the freeze commenced, i.e. "business as before". This may result in the preservation of an entrenched management right, or of an established employee benefit. The Board was concerned that the employer should not be placed in a "legal strait-jacket" by the section 86 interim legal regime, but nor should an employer action lead employees to perceive of themselves as being penalized for engaging in collective bargaining.

31. In Spar Aerospace the Board considered an employer argument that the granting of merit increases was discretionary, and therefore not caught by the statutory freeze provision. The Board concluded that there was not a complete discretion because the policy of granting the merit increases had been in existence for a number of years. The Board went on to note that the freeze can extend to cover those elements of an employer's discretion which had hardened into a well-established pattern.

32. The Board has attempted to address situations which may arise during the freeze period such as an unprecedented layoff of employees where there is no anti-union animus found. To address such situations the Board has developed the "business as before" test to include a consideration of the "reasonable expectations of employees". In Simpsons Limited, [1985] OLRB Rep. April 594, the Board articulated this test as follows:

33. The reasonable expectations approach clearly incorporates the practice of the employer in managing the operation. The standard is an objective one: what would a reasonable employee expect to constitute his or her privileges (or, benefits, to use a term often found in the jurisprudence) in the specific circumstances of that employer. The reasonable expectations test, though, must not be unduly narrow or mechanical given that some types of management decision (e.g.. contracting out, workforce reorganization) would not be expected to occur every day. Thus, where a pattern of contracting out is found, it is sensible to infer that an employee would reasonabl[y] expect such an occurrence during the freeze…..

34. The Board in Simpsons went on to note that employers would be expected to respond to changing economic conditions, through hiring, terminations, or the attrition of employees, and that this would be a reasonable expectation of employees where there had been a significant downturn in business, The Board found that the magnitude of the employer response must be proportional to the severity of the economic circumstances, The Board went on to state that, where relied upon by the employer, economic justification must be proven, and there must be an absence of anti-union animus (see para, 35). During the freeze period an employer cannot introduce a new means of responding to economic difficulties, as that introduction of a new means would likely be outside the reasonable expectations of employees, and may be found to be a breach of section 86 (see para, 38),

35. Even in cases where the Board has accepted that an employer may have good business reasons for altering a working condition, right, or privilege, it has recognized that the employer's freedom to manage its operations in the most efficient manner must be balanced against the right of the trade union to have the employment relationship which is the subject of negotiations stabilized during the period of the freeze (see Rest Haven Nursing Home, [1979] OLRB Rep. June 554, at para. 15).

36. The first consideration is whether the Christmas party and bonus are "any other term or condition of employment or any right, privilege or duty, of the employer". Having reviewed the submissions of the parties and the evidence before me I am of the view that there is a difference in character between the Christmas bonus and the Christmas party.

37. The Christmas party was an event hosted by the partnership for both employees and outsiders. There was a regular consideration of where it would be held, who would be invited, and the type of function it would be. It was not inherently related to the employment relationship, but was rather more in the character of an act of goodwill by the Clinic for both its employees and others with whom it had dealings during the year. I am therefore of the view that the Christmas party was not the type of right or privilege contemplated by the Legislature as being caught by the provisions of section 86 of the Act.

38. The bonus is a monetary item, of a different character, which could well have been a part of the negotiations for a first collective agreement since it may legitimately be seen as part of the monetary package employees received prior to certification, While it may have been viewed by the employer as a discretionary item, it had been given to employees every year for over a decade, As such the granting of an annual bonus had hardened into a well-established pattern.

39. On all of the evidence before me I am satisfied that from 1993 on, as a consequence of the imposition of the Social Contract Act, the Clinic experienced some negative financial consequences. However, there is a dearth of evidence before me to prove that the employer was in such financial straits that it could no longer afford to give its fewer than 50 employees a bonus of $100 each. As the Board observed in Simpsons Limited, cited above, the magnitude of the employer response must be proportional to the severity of the economic circumstances, and economic justification must be proven. From the financial information provided to the Board by the Clinic (the BDO Dunwoody document) it would appear that from 1993 to 1996 the average medical fees rendered per doctor went down and that the average expenses per doctor went up. However, since the Board was not provided with any financial statements or actual figures regarding total income and expenses it is difficult to reach any conclusions. The Clinic only provided bar graphs and some ratios, and then only with respect to billings, so that it is unclear to the Board if there was income from other sources like rent from the medical laboratory and the store in the Clinic building.

40. In addition, the evidence suggests that the employer had reduced its costs from 1993 on by closing the Clinic on decentralized clinic and Rae days, and by shifting the cost of employee wages onto the employees themselves by having them either use banked hours, vacation time, or take unpaid time on those days.

41. In 1993 and 1994 the employer did not stop paying the Christmas bonus, despite the alleged falling revenues and rising expenses. Yet, after the union was certified in 1995, it cancelled the payment of the bonus. It is not surprising that in these circumstances the union and the employees themselves believed that the employees were being penalized for choosing to participate in collective bargaining. That is precisely the concern that the Board wished to avoid in Spar Aerospace, cited above, by balancing the employer's right to continue to run its business and the union's right not to have its bargaining position undermined. In this case lam of the view that the employer, by cancelling payment of the Christmas bonus, was introducing a new means of responding to its alleged economic difficulties, after it had already had years in which it had apparently also experienced economic difficulties.

42. In the circumstances of this case, and based on the evidence before it, lam of the view that the situation facing the Clinic in late 1995 was not a first time event, and it was therefore not within the reasonable expectation of the employees that they would not get their annual bonus. By deciding not to pay the bonus the employer changed the status quo without the consent of the union, and as is noted above, forced the union to alter its position in bargaining. For all of the above reasons the Board finds the Clinic breached the provisions of section 86 of the Act. The Clinic is directed to implement the payment of the Christmas bonus, retroactive to 1995. The Board will remain seized of this matter to deal with any issues which may arise out of the implementation of this direction,

Board File No. 2359-96-U, Section 96 Application filed by the Union on November 7. 1996

42. The union's second unfair labour practice complaint makes a number of allegations. As the allegations are somewhat unrelated, each is dealt with separately below.

(a) February 6, 1996 letter

43. The union alleges that the employer wrote an inappropriate letter, dated February 6, 1996, which was handed to all bargaining unit members, prior to the fifth negotiation meeting between the parties which was to be held on February 13, 1996. According to the union, the letter, from all of' the partners of the Clinic, was designed to be a veiled threat to the job security of the employees in the bargaining unit and was intended to undermine the bargaining authority of the union. It was to make employees fearful of remaining unionized by highlighting the rising costs to the Clinic, one of which was having to deal with the union. The union is claiming breaches of sections 5, 70, 72, and 76 of the Act, and suggests that the Board should consider the letter in the context of the other allegations made regarding the comments of Karen Menei and Dr. Jean Maskey.

44. The employer responds that it had sent a draft of the letter to the union prior to giving it to the employees, but did not hear any objection from the union. It claims the letter was sent as a response to rumours that the Clinic believed were circulating in the workplace about the closure of the Clinic, and as a means of providing the employees with information about the financial circumstances of the Clinic, In any event, the employer claims it was not linking the departure of physicians to the union certification, and the letter was not a warning to employees about the Clinic's future. The employer argues that the letter was within the bounds of its free speech rights, and does not violate any sections of the Act.

45. The letter is on Fort William Clinic letterhead and is signed by 12 partners of the Clinic. For ease of reference, and because the content of the letter is the matter of controversy, the text of the February 6, 1996 letter is reproduced below:

We have been approached by a number of staff members to inform our employees of recent events that are occurring at the Fort William Clinic. We hope by sharing information on the impact that these events will have on the Fort William Clinic, that our employees will understand the present situation and by way of responding to the rumours that are going around. We would like to share the following information with you:

i) Dr. J L Toppin - resigned from partnership effective August 31st, 1995.

ii) Dr. G.H. Morrison - retired effective August 31. 1995.

iii) Dr. J.B Marchuk - has resigned from the partnership and will be moving from the City effective February 15th. 1996.

iv) Dr. EK. Marchuk - has resigned from the partnership effective March 3 1st. 1996.

v) Dr. P. Morbey - has resigned and will be leaving for the USA upon receipt of his "American Green Card" - estimated March, 1996.

To date, our four associate physicians have declined invitations to become partners in the Fort William Clinic.

The average cost for a physician to carry on a medical practice at the Fort William Clinic is approximately $85.000 each. The loss of five physicians will result in a $425,000 decrease in contribution to overhead for the future.

Aside from this economic loss, other costs or loss of income are also being experienced. It is anticipated that the cost of reaching a collective agreement with S.E.I.U. may reach $50,000. The government has arbitrarily withdrawn a refund of a portion of the medical malpractice insurance physicians must carry. This action could cost the clinic a further $50,000.

In total. it is expected that the remaining partners at the Fort William Clinic will have to absorb approximately $525,000 in added expenses or loss of contribution toward overhead this year.

This cost will mean a significant increase in the cost of doing business at the Fort William Clinic for the remaining partners.

The result of this increase in costs to physicians practicing at the Fort William Clinic has put the clinic at a competitive disadvantage in recruiting new physicians.

The Fort William Clinic can only survive by having new partners join the Fort William Clinic as others retire. Because our cost of doing business has risen significantly above the costs of "compet­ing clinics", we will have more difficulty recruiting new doctors. The consequences of this difficulty in recruiting should be clear.

The partnership has an active recruiting program going on. As well, the partnership is looking at all aspects of our business that can reduce costs. This must be done to salvage our clinic.

Because of the economic condition of the province of Ontario, physicians live in a climate of global and personal caps on our production. Therefore, we are unable to meaningfully increase our financial return.

The income of the clinic is largely controlled by the government and for the past 3 years, we have lived through "clawbacks" of OHIP fees of 2.8% April 1993-March 1994, 7.5% April 1994-March 1995, and estimated 10% April 1995-March 1996. It appears that there will be ongoing "clawbacks" for the near future.

With the new powers given to the Minister of Health with passage of the "Omnibus" Bill, plus the unknown costs of hospital amalgamation/rationalization of services and further bed closures in our hospital system, the financial future is uncertain at best.

We hope that the information we have shared with you above will result in a better understanding of the present situation at the Fort William Clinic. The physicians and management welcome your questions and suggestions.

46. The Clinic sent a draft of the letter to Richard Armstrong, the chief negotiator for the union. However, he was not available when it arrived, and consequently never saw it before the employer distributed it to the employees. The matter was subsequently discussed between the parties at the bargaining table on February 13, 1996, after the letter had been given to all employees. The union objected strenuously to the content of the letter.

47. There is no actual evidence before the Board that any bargaining unit members had approached the employer asking questions about the status of the Clinic. Notwithstanding that, the partners' letter is clearly framed as a sharing of information with employees about the Clinic's current situation. According to Mr. Johnson, the letter was drafted by the physicians and he checked the figures for inclusion in it. He suggested that as long as he has been at the Clinic he, as Executive Director, or the Chair of the Executive Committee of the partnership, have sent staff memos about policies or recruitment. Departmental meetings are also held with staff to communicate with them. Minutes of staff meetings are posted in the lunch room as another means of communication. There is no evidence that this particular communication style, a letter signed by the individual partners, had ever been utilized before as a mode of communication.

48. Since the number of physicians working out of the Clinic determines how many other staff are required, particularly as each doctor has a Doctor's Assistant, employees are keenly interested in which doctors are coming or going, and in the state of recruitment of new physicians. The letter explained who was leaving, and why, and explained that the Clinic was actively recruiting.

49. Mr. Johnson testified that the Clinic was looking to the employees to give it ideas to stay competitive, and was trying to impart to the employees that the Clinic had to make changes to stay competitive. While he admitted that all of the Thunder Bay clinics were having trouble recruiting and keeping physicians at the time the letter was written, he conceded that reality was not reflected in the letter to the Clinic staff. Mr. Johnson testified that one of the concerns which had been expressed by the staff prior to the letter being written was that the Clinic may close. He conceded that someone reading the letter may get the impression that there was a spectre of the Clinic not surviving. While no employee had asked about the cost of negotiating a collective agreement, the Clinic felt it wanted to tell the employees about this expenditure item.

(b) Fred Bickford's Comments at the February 13, 1996 Negotiating Meeting

50. The union alleges that the Clinic counsel and chief negotiator, Fred Bickford, made a comment at the February 13, 1996 negotiating meeting to the effect that the Clinic relationship with the union was not necessarily a "long term relationship".

51. The Clinic argues that the comment was one made in the context of negotiations, was part of a larger discussion, and asks that no adverse inference be drawn from the comment.

52. While I am not unmindful of the negative effect this comment had on the union negotiating committee, the Board is satisfied that there is nothing to be made of Mr. Bickford's comment in the context of negotiations. The negotiations between these parties were fractious and sometimes heated, and I am of the view that no purpose is served by taking this comment out of context.

(c) Karen Menei's Comments to Sheila Murray in April or May, 1996

53. The union alleges that in April or May, 1996, Karen Menei, a supervisor at the Clinic, told a bargaining unit member, Sheila Murray, that if the employees did not decertify the union, they would all lose their jobs. The Clinic denies this allegation, argues that neither woman recalls exactly what was said, and states that in any event, this was a personal conversation between them, where Ms. Menei was not acting in a supervisory capacity to Ms. Murray.

54. Karen Menei is the supervisor of Medical Dicta Typists, and when the Executive Director, Assistant Executive Director, and the Switchboard Supervisor (who only works mornings) are away from the Clinic, she is the Acting Manager in charge of the Clinic. Ms. Murray deals with confidential partnership matters and completes Revenue Canada documentation regarding the doctors' incomes. She is excluded from the bargaining unit. Sheila Murray is a Medical Records Clerk, not generally supervised by Ms. Menei, except in the exceptional circumstance of Ms. Menei being the Acting Manager in charge of the whole Clinic, which apparently happens about once a year.

55. In April or May, 1996 Ms. Murray was in Ms. Menei's work area looking for a file when Ms. Menei approached her and had a very short discussion of about one or two minutes duration. Ms. Menei testified that she discussed the fact that doctors were leaving the Clinic, staff were being laid off, the pro's and con's of the union, and that she was concerned about the future of her own and the other employees' jobs. She believed the Clinic would close if a first contract was negotiated. This was the only time Ms. Menei ever discussed the union with Ms. Murray. Ms. Menei conceded her memory had faded, and it was apparent she had a very sketchy recollection of the discussion.

56. Ms. Murray's evidence is that Ms. Menei told her that if the union got a contract for the Clinic the doctors would never allow that and the Clinic would close. It was Ms. Murray's view that Ms. Menei was expressing her fears and was speaking to Ms. Murray out of friendship. Ms. Murray did not add to the conversation, but just indicated she was listening. Ms. Murray and Ms. Menei are casual friends at the Clinic and sometimes take their coffee breaks together sometimes. Ms. Murray was taken aback by Ms. Menei's comments as the two had never discussed the union before. It is noteworthy that the conversation took place in the aftermath of the February 6th letter, and after some staff had been laid off in February and March, 1996, after the release of the letter. Both Ms. Menei's and Ms. Murray's departments had been affected by he layoffs.

57. Both women were honest and straightforward in giving their testimony, and both admitted the limitations of their respective memories. In my view their versions are not so dissimilar that it is necessary to make a finding on the credibility of either witness. However, it seems more likely than not that no "pro's" about the union were discussed in this very short conversation, and that Ms, Menei was expressing a concern that everyone may lose their jobs it' the union was successful in getting a first collective agreement.

58. After the conversation had taken place Ms. Murray told Glen Chochla, counsel for the union, about it, in May or June, 1996, after a union meeting. She told him in the presence of about a dozen of the union members who were still present after the meeting. Ms. Murray regularly attends union meetings, and has only missed two or three meetings since the certification. At these meetings the issue of the Clinic closure has come up frequently as members raise their fears that they may lose their jobs, especially after there began to be layoffs of staff due to the departure of doctors from the Clinic, and the problems the Clinic appeared to be having in recruiting new doctors,

(d) Dr. Jean Maskey's Comments to Debbie Karpowich and Donna Insley

59. The union alleges that in late August or early September, 1996, Dr. Jean Maskey, one of the partners of the Clinic, told Debbie Karpowich, a Doctor's Assistant, that Dr. Maskey had contacted a number of graduating doctors to recruit them to the Clinic, but that none would come to it because it was unionized. On October 17, 1996, when Dr. Maskey was leaving the Clinic to move to British Columbia, she told another Doctor's Assistant, Donna Insley, that the employees had to get rid of the union or the Clinic would close. She warned Ms. Insley that the doctors would always have a job, but that the employees would not be able to get jobs so easily. Dr. Maskey went on to tell Ms. Insley that the partners believed Ms. Insley was one of the union organizers. The union complains that Dr. Maskey's comments were designed to encourage employees to decertify the union, threatened closure of the Clinic, and were intended to threaten, intimidate and coerce employees from their support for the union.

60. The Clinic argues that Dr. Maskey's conversation with Ms. Karpowich was in the context of a doctor/patient relationship, not as an employer to an employee, and was not intended to threaten, intimidate or coerce her. Since Dr. Maskey resigned from the partnership on October 11, 1996, the Clinic argues she was no longer speaking for the Clinic when she had her conversation with Ms. Insley. Dr. Maskey and Ms. Insley were personal friends, and it is alleged that it was in that context that the conversation took place. The Clinic argues that Dr. Maskey's comments cannot be found to have been breaches of the Act.

61. Dr. Maskey did not attend at the hearing, so that the Board did not have the benefit of her evidence. The Board did hear from Ms. Karpowich and Ms. Insley, both of whom were completely credible witnesses.

62. Ms. Karpowich has worked at the Clinic for 16 years, is a union steward and is on the union's negotiating committee. Dr. Maskey was a partner at the Clinic, and as such can be taken to have known of Ms. Karpowich's union positions. Ms. Karpowich was aware that Dr. Maskey was leaving the Clinic to go to British Columbia. In the last week of August and the first week of September 1996 Ms. Karpowich was filling in as Dr. Maskey's Doctor's Assistant. During the course of the work day in early September, in their work module, Ms. Karpowich asked Dr. Maskey if she had found a replacement to take over her practice. The uncontroverted evidence is that Dr. Maskey said she had sent out letters to all of the doctors graduating that year, and in any of the responses she had received, once the fact of the Clinic being unionized came up, no one was interested in coming. Ms. Karpowich told Dr. Maskey that doctors work in unionized hospitals, but Dr. Maskey responded that that was a totally different situation because the Clinic is a privately run practice. Dr. Maskey, as a partner in the Clinic, had signed the February 6, 1996 letter to the employees.

63. Ms. Karpowich and her mother were both patients of Dr. Maskey. However, she was not asking Dr. Maskey about a replacement in relation to their doctor/patient relationship, but rather as an employee of the Clinic who had worked beside Dr. Maskey for 10 years. They also know each other as work friends, having worked in the same module for years. The modules are work areas where a cluster of doctors and their assistants work side by side. Ms. Karpowich normally worked for another physician in the same module as Dr. Maskey.

64. Ms. Karpowich testified that she has attended every union meeting, and that they are usually held about every three months to bring employees up to date on what is happening. Attendance at the meetings is good. The issue of the Clinic closing is a main issue discussed frequently at the union meetings because it is believed that the Clinic does not want to be unionized, and that has contributed to the length of negotiations. Union members therefore ask how much the negotiations must be costing the Clinic, and how long they will continue. They also talk about the number of physicians leaving the Clinic, and that it seems difficult to replace them. Ms. Karpowich recounted that Ms. Murray's conversation with Ms. Menei, and Ms. Insley's conversation with Dr. Maskey, had both been the topics of discussion at union meetings. She has noted that the concerns about closure of the Clinic had increased in intensity by the date of the filing of the first contract application in November, 1996.

65. Ms. Insley has worked at the Clinic for 15 years, and had worked as Dr. Maskey's assistant for 12 years before Dr. Maskey left. She now works for Dr. Maskey's replacement, Dr. Chung. Dr. Maskey left the partnership and the Clinic officially on October 11, 1996. On October 17th she returned to clean out her office the day before she left Thunder Bay. At around 11 a.m., during Ms. Insley's working hours, she and Ms. Insley had a conversation in Dr. Maskey's office. Dr. Maskey told Ms. Insley that, for the record, she was no longer a partner. She then proceeded to tell Ms. Insley that Ms. Insley should get the union out or else the Clinic would close. Dr. Maskey told her that the doctors would always have a job, but the employees would not, and that Ms. Insley's job was hanging on by a string because Dr. Chung was coming. Dr. Maskey told Ms. Insley that she was concerned about Ms. Insley, and that the partners had thought for a while that Ms. Insley was one of the union organizers. Ms. Insley informed Dr. Maskey she was not one of the union organizers and that the partners were looking at the wrong people. Dr. Maskey told Ms. Insley that the two Doctors Marchuk had put their resignations on the table the day the union came in, and that the union was one of the reasons that Dr. Nielipovitz left around the end of August, 1996. Also, she had just heard that another partner was leaving the Clinic, and Dr. Maskey said that if one more partner left, the doctors could no longer operate the Clinic as a business. Ms. Insley thanked Dr. Maskey for her candour and concern, but said she could not change the situation, Thereafter the two women said an emotional goodbye.

66. Ms. Insley took to heart what Dr. Maskey had said as she believed Dr. Maskey was concerned for her well-being, and had not had to say anything. Dr. Maskey had been a close friend, as well as being Ms. Insley's boss, and the two women socialized outside of the Clinic. They had never had a discussion about the union before.

67. Ms. Insley told her friend and co-worker, Ms. Karpowich, about the conversation as she knew Ms. Karpowich was a union steward and on the union negotiating committee. Ms. Insley thought Ms. Karpowich should raise this at a union meeting, and it was raised at the October union meeting. Ms. Karpowich told the meeting what Dr. Maskey had told Ms. Insley, and Ms. Insley confirmed what had been relayed. Fifteen people were present at that union meeting.

68. Like Ms. Karpowich, Ms. Insley has attended all of the union meetings and testified that the possibility of Clinic closure has come up at almost every meeting in the last year. Her evidence with respect to what was discussed at the meetings was similar to that given by Ms. Karpowich, and I do not therefore intend to repeat it.

69, As the union has alleged breaches of sections 5, 70, 72 and 76 of the Labour Relations Act, 1995 in this application, for ease of future reference, all of these sections are reproduced here:

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

6. 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.

7. 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.

76. 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.

77. In A,N. Shaw Restoration Ltd., [1978] OLRB Rep. May 393, the Board outlined its view about employer communications with employees during the course of bargaining as follows:

78. The existence of this well-established principle of exclusivity of bargaining rights means that employers must be circumspect when communicating with employees represented by a bargaining agent, especially when these communications occur during the course of negotiations. The need for circumspection on the part of employers. however, does not mean that all communications between employer and employees are prohibited. Section [70] of the Act, prohibiting employer interference with the formation, selection or administration of a trade union or the representation of employees by a trade union, expressly provides that this very general prohibition does not "deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats. promises or undue influence". Where communications occur between employer and employees during negotiations, the Board must draw a line dividing legitimate freedom of expression from illegal encroachments upon the union's exclusive right to bargain on behalf of the employees. The line is not an easy one to find, and can only be discovered by asking whether such communications in reality represent an attempt to bargain directly with the employees. If employer communications can be characterized in this manner, they must be regarded as unduly influencing employees and, therefore, falling outside the protection provided to freedom of expression in section [70]. Once outside this protected area, such communications can be characterized as a violation of section [961 of the Act, and also a violation of the duty to bargain in good faith if they serve to undermine the viability of the bargaining agent.

79. In reviewing the employer communications with employees the Board examines not only the nature of the particular communication, but also the timing and particular bargaining context in which those communications occurred (see The Citizen, [1979] OLRB Rep. March 177, at para. 57). Thus, in a mature bargaining relationship, employer communications during the course of collective bargaining will be viewed differently than in a new bargaining relationship, or in the context of an organizing drive. In the latter two circumstances the Board is concerned that "employees are likely to be particularly sensitive to any utterances by management" because the Board has generally accepted that "undue influence" is defined as the "unconscientious use by one person of power possessed by him over another to induce the other to enter into a contract" (see American Can Canada Inc., [1983] OLRB Rep. Oct. 1609, at para. 12).

80. I am in agreement with the following excerpt from Canadian Labour Law (Second Edition, June 1996, p. 10-54) wherein the Honourable Mr. Justice George W. Adams (as he then was) states the following:

The juxtaposition of words used in an employer's communication with employees, not only each in relation to the others but also as an aggregate, may bear special purport in the setting in which they are used. This analytic approach was recognized early by Mr. Justice Learned Hand in N.L.R.B. v Federbush Co.. Inc. cited with approval in Greb Industries Ltd. [1979] 2 Can. L.R.B.R. 56 (Ont.) at p.62]:

Arguments by an employer directed to his employees have such an ambivalent character; they are legitimate enough as such, and pro tan to the privilege of free speech protects them: but, so far as they also disclose his wishes, as they generally do, they have a force independent of persuasion … What to an outsider will be no more than the vigorous presentation of a conviction, to an employee may be the manifestation of a determination which it is not safe to thwart. The Board must decide how far the second aspect obliterates the first.

73. In reviewing the evidence with respect to the letter it appears that, for the most part, the letter is simply informative about physician partner departures, the impact of those departures on the cost of overheads for the remaining partners, and how government clawbacks of OHIP fees have affected the Clinic's income. What is troublesome is that the first specific reference to an increased cost to the Clinic is the anticipated cost of reaching a collective agreement with the union, which the partners believed at that time may reach $50,000. After listing one other cost, the partners indicated that the result of the increases in costs to physicians had put the clinic at a "competitive disadvantage in recruiting new physicians", They then proceeded to outline the consequences of the difficulty in recruiting, and said the partnership was looking at "all aspects of our business that can reduce costs" as this "must be done to salvage our clinic". The partners indicated that the income of the clinic was largely controlled by the government, which had imposed clawbacks in the last three years, the inference being that it was unlikely that income could be increased to offset the increased expenses. The last substantive phrase in the letter is that "the financial future is uncertain at best".

74. Given Mr. Johnson's evidence that this letter was supposed to be a response to employee concerns about the closure of the Clinic, it would not appear to be a very sanguine letter. The emphasis in the letter is on recruiting - but it is clear that the partners are stressing that costs must be reduced if recruitment is to be successful, and costs must be reduced to "salvage" the Clinic. To the average employee the only cost she would have been able to identify as one she may have any control over would be the one associated with having a union.

75. In a case where this letter was an isolated communication from an employer to its employees, it would be unlikely to have been viewed by the Board as a problematic communication. While the Board is very careful to try to protect an employer's right to express itself, in the context of this ongoing first contract negotiation, where the employer had already laid off employees and had cancelled a Christmas bonus, and where there had been limited obvious progress in the collective agreement negotiations (as will become clear later), this letter becomes more suspect. When the letter is reviewed along with all of the verbal communications which followed, the comments made by Ms. Menei and the pointed comments made by Dr. Maskey, along with the lack of progress in collective bargaining, a course of conduct emerges which suggests a veiled threat, is coercive, and unduly influential with employees. In the context of all of the findings in this unfair labour practice complaint, the Board further finds that the letter was designed to undermine the bargaining authority of the union at this early stage in the negotiations,

76. Having reviewed the evidence and the submissions with respect to the Karen Menei/Sheila Murray incident, the Board is satisfied that Ms. Menei, while a supervisor, was not speaking for the Clinic when she made her comments to Ms, Murray. She was expressing her concern about the Clinic closing to her work friend. There is no evidence to suggest that Ms. Murray took the comments as a threat, but it is clear that Ms. Murray was concerned enough about the discussion to inform the union about it. That is not surprising given that the issue of the Clinic closure had been raised at union meetings by bargaining unit members, so Ms. Murray would want to convey to the union that management staff were also expressing similar fears. While the Board finds no breach of the Act arising out of this incident, this conversation does contribute to an understanding of the fears of closure, linked to the presence of the union, which were being fanned in the workplace by management personnel.

77, It is troublesome that Dr. Maskey made the comment she did to Ms. Karpowich, a union representative in the workplace, because it seems clear that the comment was intended to bolster the already rampant fears about Clinic closure due to the problems with doctors leaving and the Clinic's apparent inability to recruit new doctors. This was the first time the partnership had actually tied the presence of the union to the Clinic's inability to recruit. Dr. Maskey had to have known, or could reasonably have expected, that Ms. Karpowich would tell the union and/or her fellow workers about the comment. Ms. Karpowich did tell her co-worker, Donna Insley. about it. Having reviewed the evidence with respect to the Maskey/Karpowich incident, the Board cannot find that the comment made by Dr. Maskey is, on its own, a breach of the Act. However, as will become evident below, the comment is significant to how the employer was building an atmosphere of fear for job security in the workplace.

78. In Keith MacLeod Sutherland, [1983] OLRB Rep. July 1219, the Board quoted with approval from an older case, SaverioA. Greco, [1976] OLRB Rep. June 323, wherein that panel of the Board had said:

79. It is clear from a reading of section [76] that a violation of that section occurs the moment a person 'seeks' to compel another to do one of the acts set out in the section. It is therefore unnecessary for a complainant to prove that he has in fact been intimidated or coerced in doing or refraining from doing anything. The offence is complete once an attempt to compel by intimidation or coercion has been made.

80. Section 76 refers to any "person" and does not require that the person be acting for an employer or employer's organization. Notwithstanding that on October 17th Dr. Maskey was no longer a partner, she had, until one week earlier, been one. She had in February, 1996 signed a letter to the employees which said that the Clinic had to reduce costs, that the union collective bargaining was one of the major costs to the Clinic, that doctors were leaving the Clinic, that the Clinic needed to be "salvaged", and which solicited employee suggestions. In September, 1996 Dr. Maskey told the union steward and member of the negotiating committee that no doctor would come to the Clinic because of the union. It is not a stretch to say that when Dr. Maskey spoke to Ms. Insley on October 17, 1996, she was conveying a message about what the partners felt about the presence of the union in the Clinic. She specifically told Ms. Insley that Ms. Insley's job was hanging on by a thread, and that the partners believed Ms. Insley was a union organizer. She asked Ms. Insley to get the union out or the Clinic would close. The Board is satisfied that Dr. Maskey was seeking by intimidation or coercion to compel Ms. Insley to cease to be a member of the union, and indeed, was advocating a termination application, which in fact did eventually emerge.

81. In reaching this conclusion I have considered the friendship relationship between Dr. Maskey and Ms. Insley. However, that does not change the fact that Dr. Maskey was Ms. Insley's "boss" and a partner in the Clinic. Just because she had left the partnership one week before did not give her license to now say to a bargaining unit member what she had been legally unable to before. If it was possible for an employer to disclaim responsibility for what was said by persons who had been so recently associated with its management, it would leave open the possibility of concocting situations to allow for prohibited speech. In any event, what Dr. Maskey said to Ms. Insley, her friend, was consistent with what the partners and she herself had been suggesting in a roundabout way since February. Furthermore, neither Mr. Johnson, nor any Clinic partner testified before me that any of Dr. Maskey's comments were untrue. The Clinic adduced no evidence which would have distanced the Clinic from Dr. Maskey's comments, except that it suggested that Dr. Maskey was not speaking for the Clinic on October 17, 1996. As noted earlier, in the context of this case lam satisfied that an inference can be drawn from all of the evidence before me that Dr. Maskey was passing on to Ms. Insley the views of the Clinic partnership,

82. For all of the above reasons, the Board finds that the Clinic has violated sections 70, 72 and 76 of the Act.

83. Having found the violations of the Act outlined above, the Board accordingly directs:

a) that the Clinic forthwith, and for a period of 60 days from the date of this decision, post the Notice appearing as an Appendix to this decision; the Notice is to be posted where it will come to the attention of all employees in the bargaining unit; and,

b) that the Clinic, at its own expense, and as soon as possible after receipt of this decision, provide a copy of this decision to every employee in the bargaining unit.

Board File No. 2360-96-FC, Application for Direction that a First Collective Agreement be Settled by Arbitration

83. On November 7, 1 996 the union filed with the Board an application seeking a direction that a first collective agreement be settled by arbitration. A "no-hoard" report had been issued on November 5, 1996, and had been released on November 7, 1996. The union asked that the two section 96 complaints dealt with above be heard with the first contract case as the union is seeking to rely on the factual bases of those applications in the first contract application. The vast majority of the 21 days of hearing in these matters was devoted to this particular application, so much so that the parties took a day each just to make their final submissions on the first contract portion of the case. Given the length of those submissions, I do not intend to reproduce them in full at this point, but rather will give a brief summary of the fundamental positions of the parties. I will then address specific areas of contention and the Board's findings and decisions under sub-headings.

84. The union position in seeking this declaration is that the process of collective bargaining has been unsuccessful because the Clinic has, through its bargaining proposals, refused to recognize the bargaining authority of the union, has taken uncompromising positions at the bargaining table without reasonable justification, and has failed to make reasonable or expeditious efforts to conclude a collective agreement. The union alleges that the Clinic did not want a union at all, and had no intention of concluding a reasonable collective agreement. The gist of the union's position is that 17 months after certification, and after 13 negotiating sessions, the parties only had 50 non-contentious articles agreed to. Eighty five articles were still outstanding, and all of the difficult issues were still on the table. The union contends that for negotiations to be seen to be progressing the parties must be able to see a light at the end of the tunnel, and that was not the case in its negotiations with the Clinic.

85. The Clinic argues that the process of collective bargaining had not been unsuccessful, and states that the union has not met its onus of proving that threshold question. In any event, the employer argues it did recognize the bargaining authority of the union, it had not reached impasse on issues and was still making movements on articles, it did have reasonable justification for its positions, and it made reasonable efforts to conclude a collective agreement.

86. The relevant provisions of section 43 of the Act are reproduced here for ease of reference:

87. (1) Where the parties are unable to effect a first collective agreement and the Minister has released a notice that it is not considered advisable to appoint a conciliation board or the Minister has released the report of a conciliation board, either party may apply to the Board to direct the settlement of a first collective agreement by arbitration.

(2) The Board shall consider and make its decision on an application under subsection (I) within 30 days of receiving the application and it shall direct the settlement of a first collective agreement by arbitration where, irrespective of whether section 17 has been contravened, it appears to the Board that the process of collective bargaining has been unsuccessful because of,

(a) the refusal of the employer to recognize the bargaining authority of the trade union;

(b) the uncompromising nature of any bargaining position adopted by the respon­dent without reasonable justification;

(c) the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement; or

(d) any other reason the Board considers relevant.

87. There is no dispute between the parties that they had been unable to effect a first collective agreement at the time the union made this application to the Board. It is also undisputed that the Minister had released a notice that she did not consider it advisable to appoint a conciliation board (a "no board" report). The requirements of section 43(1) have been met in the circumstances of this case.

88. The question is whether it appears to the Board that the process of collective bargaining has been unsuccessful because of the Clinic's refusal to recognize the bargaining authority of the union, or, due to the uncompromising nature of any bargaining position adopted by the Clinic without reasonable justification, or, because of the failure of the Clinic to make reasonable or expeditious efforts to conclude a collective agreement. The union has specifically asked the Board to also consider the impact of the Clinic's behaviour complained of in the two unfair labour practice complaints filed and dealt with in the course of this hearing.

89. The Board has long recognized that section 43 is a remedial provision designed to ameliorate situations in which difficulties in reaching a first collective agreement have been encountered by the unjustified intransigence of one of the parties. However, this provision in the Act is not intended to supplant the primacy of collective bargaining (see Nepean Roof Truss Limited, [1986] OLRB Rep. July 1005). The Board has also stated that in considering such applications it should consider the entirety of' the collective bargaining process and that the conduct of both parties is relevant to that consideration (see Teledyne Industries Canada Limited, [1986] OLRB Rep. Oct. 1441). In Teledyne the Board considered whether the "process of collective bargaining has been unsuccessful". While the Board found that there is no minimum number of bargaining sessions that the parties should have participated in, that is one consideration. It will also consider whether the parties have made substantial progress in reaching agreements and whether the bargaining process has been allowed to take its course with the parties having attempted to bargain all or most outstanding matters. In Peacock Lumber Limited, [1990] OLRB Rep. May 584, the Board noted that a party is not required to continue bargaining if it is evident that bargaining has come to a halt and that further negotiations would be fruitless. In MacMillan Bloedel Building Materials Limited, [1990] OLRB Rep. Jan. 58, the Board considered the lack of any meaningful progress, and that there was no reasonable likelihood that the parties would compromise on the central issue in the dispute, in finding that the process of collective bargaining had been unsuccess­ful. The Board, in Metro Taxi Ltd. c.o.b. as Capital Taxi, (Unreported, Board File No. 3081-95-FC, September 9, 1996), stated that whether section 43(2) applies is a question of fact which the Board is to determine by looking at the totality of the parties' conduct during bargaining.

90. The Clinic and union had held 13 bargaining sessions over the course of one year by the time the union applied for first contract arbitration. As was their pattern, they had provided each other with comprehensive reviews of their respective positions on most aspects of their proposals on a number of occasions. While the employer did not respond on any monetary issues until September, 1996, it had the union's monetary proposals on everything except wages from the start of negotiations. On October 29, 1996 the Clinic gave the union its wage proposal and it was discussed, The union's wage proposal is the only aspect of the proposed collective agreement not discussed at a meeting of the parties as the union tendered its wage proposal on November 1, 1996, after the last date on which the parties negotiated.

91, As outlined earlier, the progress made by the parties in the one year of negotiations was agreement on 50 items, with 85 items still outstanding, most of which were substantive provisions (as will become clear later), The Board is satisfied that the bargaining process in this case had been allowed to take its course but that substantial progress had not been made. The parties had addressed themselves to all areas of a potential collective agreement, and had attempted to bargain almost everything that the employer was prepared to negotiate about. While it is true that there was limited discussion on the employer's wage proposal, and none on the union's wage proposal, in the circumstances of this case it is sufficient that the union had had an opportunity to canvass the employer's wage proposal. This is of some importance because had the employer been unwilling to give the union anything in collective agreement language, but had made a generous offer of wages, the union, having been apprised of the employer's proposal, would have had the opportunity to consider whether it wanted to trade wages for language. As it was, the employer was looking for concessions for existing employees in its wage proposal, and a lower rate for all new employees, so that the union knew by October 30, 1996 what money and language was on the table.

92, The Board is of the view that by September, 1996 there was little meaningful progress being made in the negotiations. I am bolstered in that view by the fact that the employer itself thought so and therefore finally introduced its proposals on the monetary issues to see if those would get the negotia­tions moving on the non-monetary items, Having reviewed the employer's position on the issues of union dues and union security on the last day of negotiations, it is patently clear that the parties were not likely to compromise on what was one of the central issues for the union, On all of the evidence, and in light of the considerations outlined above, the Board is of the view that the process of collective bargaining had been unsuccessful. I now turn to the consider whether the employer engaged in conduct which falls within the subsections of section 43(2).

93, The parties' last bargaining session before the union filed its first contract application was on October 30, 1996. As has been noted earlier, the first contract application was filed on November 7, 1996, and at the time of filing the application, of the 135 provisions of the proposed collective agreement, 85 remained outstanding, It is the union's contention that many of the items which remained outstanding were fundamental issues to any collective agreement, and that the parties had made little or no progress on them in the 12 months of bargaining. Given the importance the union has attached to many of the outstanding provisions, the Board will go through some of them to track the progress the parties had made and to provide some indication of the type and number of outstanding issues.

94. Union Security: The union position was that as a condition of employment, all newly-hired employees must become members of the union after passing their probationary period, and must remain members while employed at the Clinic. Current employees are to become union members, or may exercise their option under the Labour Relations Act, 1995,

95. The employer agreed essentially with the provision as it related to new employees. However, current employees are to have the option of becoming union members, or can have the Clinic remit the equivalent of their union dues to a charitable organization, without having to come to the Labour Relations Board to establish a religious exemption. The justification the employer offered was that this provision would protect the current employees' freedom to not join the union without having to spend any time and money on going to the Board,

96. Union Dues: The union wanted union dues deducted for anyone in the bargaining unit. The employer wanted employees, prior to ratification of the first collective agreement, to be able to choose to pay union dues, or to direct the amount of union dues to the charity of their choice, as is allowed by the Act. The employer did not contemplate employees actually having to establish a religious exemption before the Board.

97. The union characterizes the employer's position on these two articles as a failure to recognize the role of the union in the workplace, and sees the Clinic ignoring that the union is now the bargaining agent for the employees. The union tried to bargain these provisions on the last day of negotiations, in the hopes that the employer would get this fundamental issue off the table, but the employer would not agree.

98. Sections 47, 5l(l)(a), and 52 of the Act are relevant to these issues and state:

99. (1) Except in the construction industry and subject to section 52, where a trade union that is the bargaining agent for employees in a bargaining unit so requests, there shall be included in the collective agreement between the trade union and the employer of the employees a provision requiring the employer to deduct from the wages of each employee in the unit affected by the collective agreement, whether or not the employee is a member of the union, the amount of the regular union dues and to remit the amount to the trade union, forthwith.

(2) In subsection (I),

"regular union dues" means,

(a) in the case of an employee who is a member of the trade union, the dues uniformly and regularly paid by a member of the trade union in accordance with the constitution and by-laws of the trade union, and

(b) in the case of an employee who is not a member of the trade union, the dues referred to in clause (a), excluding any amount in respect of pension, superannuation, sickness insurance or any other benefit available only to members of the trade union.

51. (1) Despite anything in this Act, but subject to subsection (4), the parties to a collective agreement may include in it provisions,

(a) for requiring, as a condition of employment, membership in the trade union that is a party to or is bound by the agreement or granting a preference of employment to members of the trade union, or requiring the payment of dues or contributions to the trade union;

52. (1) Where the Board is satisfied that an employee because of his or her religious conviction or belief,

(a) objects to joining a trade union; or

(b) objects to the paying of dues or other assessments to a trade union,

the Board may order that the provisions of a collective agreement of the type mentioned in clause 51(l) (a) do not apply to the employee and that the employee is not required to join the trade union, to be or continue to be a member of the trade union, or to pay any dues, fees or assessments to the trade union, provided that amounts equal to any initiation fees, dues or other assessments are paid by the employee to or are remitted by the employer to a charitable organization mutually agreed upon by the employee and the trade union, but if the employee and the trade union fail to so agree then to a charitable organization registered as a charitable organization in Canada under Part I of the Income Tax Art (Canada) that may be designated by the Board.

(2) Subsection (1) applies to employees in the employ of an employer at the time a collective agreement containing a provision of the kind mentioned in subsection (1) is first entered into with that employer and only during the life of such collective agreement, and does not apply to employees whose employment commences after the entering into of the collective agreement.

99. The Clinic justification for its position on the union security and union dues provisions was that it did not want to remove the freedom of choice from its employees regarding their decision to join or not join the union. The fact is, however, that the employees of the Clinic have a trade union representing them because a majority of them wanted the union. The Act contains protections for employees who may have religious convictions or beliefs which prevent them from joining a trade union or paying union dues. Therefore, the Board is drawn to the conclusion that the employer was simply refusing to recognize the bargaining authority of the union on issues which go to the heart of the security of the bargaining agent, to the integrity of the bargaining unit and which have been recognized as such in the provisions of the Labour Relations Act, 1995, (See also Romatt Custom Woodwork Inc,, [1992] OLRB Rep. March 377).

100. Discharge Grievance Procedure: The employer wanted a clause that discipline or dis­charge on specified grounds would be deemed an appropriate specific penalty, and that the only issue which could be arbitrated was whether the breach of the specified grounds had actually occurred. There were 11 specified grounds listed including in addition to the more usual items, discourteous or rude behaviour to patients, insolence, breach of the Clinic's multi-page dress code and grooming rules, and, any breach of the personnel policies. In its management rights clause the employer also wanted a clause permitting it to continue in force any pre-existing Clinic policies, unless inconsistent with the express provisions of the collective agreement. The union was therefore concerned about the wide breadth of the employer's power to discharge with this specific penalty clause.

101. The union proposal on October 30, 1996 was to permit the employer to have the eleven grounds included in the collective agreement, so long as employees had the right to grieve and without a specific penalty which was not subject to an arbitrator's power to review and alter the penalty. The union had asked during negotiations about the draconian nature of the employer policies on grooming and dress code, and had been told they were non-negotiable items and that the employees needed to know what would be acceptable behaviour and what was not. Mr. Johnson has himself noted in his April 30, 1996 notes that the grooming and dress codes are not negotiable. During cross-examination Mr. Johnson admitted the Clinic did not want to have to take an employee back as a result of an arbitration. He also suggested the issue of the dress code was only not negotiable at that time, suggesting it was still open for negotiation at some time. However, the Board is satisfied that was not the case, and certainly by October 30, 1996 the employer had shown no inclination to negotiate on this issue even though it had been discussed from at least February to October, 1996.

102. Layoff, Recall, and Job Postings: In cases of transfers, promotions, demotions, hiring, layoff or recall situations, the employer wanted to be able to consider such criteria as integrity and established working relationships with a particular physician, or his/her patients, in addition to the usual qualifications. The employer also wanted to be the sole judge of these qualifications, and its decisions were not to be arbitrable except that the employer was not to exercise its discretion in an arbitrary, discriminatory or capricious manner. The Clinic, by September, 1996, had toughened its position to add the integrity and established working relations requirements. The union was of the view that the language proposed, and from which the employer would not budge, would mean employees would essentially have no ability to challenge the employer's decisions. The employer was only willing to consider seniority after it had considered its list of qualifying factors, which in the union's view meant the employer was not prepared to take it into account at all. No justification was provided for this position, and the employer would not explain how "integrity" would be measured. Mr. Bickford simply said during negotiations that in the world today there was no job security and that this workplace was not conducive to having job posting language. The Clinic apparently wanted to have complete control of these issues, and Mr. Bickford told the union that he who paid the bills should have the ultimate say. It was the union's view that the employer wanted its relations to be with the employees, and not with the union.

103. In The Boys' Home, [1992] OLRB Rep. 409, the Board found that a deemed termination provision, which is similar to the one the Clinic is seeking, gave the employer such a degree of discretion that it essentially eliminated any just cause protection, and removed the right to utilize the grievance and arbitration process for review of the penalty. The employer in that case was also seeking to conduct layoffs and job postings based on its sole judgment about a number of factors of a subjective nature, and giving consideration to seniority only after those subjective criteria had been determined by it, The Board in that case found that there was no justification for these positions and went on to state:

104. ... Limiting the scope of arbitral review seriously weakens or eliminates any protection afforded by a just cause clause. Both more standard grievance and arbitration collective agreement provisions and the protection provided by section [48] exist to provide employees with some protection against arbitrary decision-making on the part of an employer. The grievance and arbitration process is a fundamental benefit inherent in collective bargaining. That is evidenced by the mere fact that the Act mandates that there be included in every collective agreement a form of grievance and arbitration process to provide for the resolution of disputes by a neutral third party. While it is contemplated that parties can contract out of section [48] there was no justification provided by this employer for such an extensive limit on the arbitral power to review both employer decision-making and penalty. The mere assertion by the respondent that it is different by virtue of the fact that it is a social service agency providing care to young offenders provides no justification. There is nothing in the evidence that would warrant such a departure for this workplace.

105. The Clinic suggested it was both a different workplace where regular collective agreement provisions were not warranted, and it indicated it did not want to face the costs inherent in grievance administration and arbitration.

106. A consideration of whether an employer has taken uncompromising bargaining positions without reasonable justification requires the Board to assess the content of parties' negotiating proposals with a view to making an objective determination as to their reasonableness (see Bourque Consumer Electronics Service Inc., [1990] OLRB Rep. August 821). In Formula Plastics Inc, [1987] OLRB Rep. May 702, the Board recognized that this is a difficult task in which the Board must draw heavily on its own expertise in labour relations. What the Board was clear about was that "reasonable" means more that a simple rational relationship between a bargaining position and a party's self-interest. In making this determination, the Board has considered whether the employer is insisting on a "no improvements" collective agreement, or a "less than status quo" collective agreement, and whether the employer's positions have been either rigid or so unreasonable as to be the cause of the breakdown of negotiations (see Atwav Transport Inc,, [1991] OLRB Rep. April 425).

107. In Bourque, cited above, the Board considered the impact of the employer wanting economic concessions but refusing to provide the union with economic information to support its assertion that as a result of its financial situation, it needed the concessions. At paragraph 65 the Board stated:

More important, in our view, than the survey the company did provide in negotiations, is the information it failed and refused to provide. The company declined several union requests for economic data to support the company assertions. Considering the magnitude of economic conces­sion sought, we view this failure as unreasonable on the company's part. So long as the company refused to provide such information, the union's scepticism regarding the company's claim could hardly be expected to abate. In the circumstances of this case we find the company's refusal to be further failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement.

107. The Board in Bourque went on to find that the presentation of limited economic data at the hearing did not cure the earlier lack of information provided to the union during negotiations. At paragraph 69 the Board said:

…..Section [43] requires the Board to assess the bargaining process; just as first contract arbitration ought not to be viewed as an automatic surrogate to collective bargaining, a respondent to a section [43] application ought not to assume that the hearing is an opportunity to cure its prior intransigence. Section [43] should create an incentive to the parties to bargain in the utmost good faith, it should not encourage either party to withhold vital information or otherwise save its "bottom line" position until such time as the matter is brought before the Board.

108. In the case before me, from a point prior to the beginning of negotiations, the employer claimed it had financial difficulties which were causing it to cancel the Christmas party and bonus. However, when the union asked for financial information to support this assertion, the employer did not provide any substantive information. Thereafter, during negotiations, the employer repeatedly relied on its claim of financial difficulties for the various positions it took. The union asked for financial support for the employer's positions, but received no substantive information. At the hearing of this application the employer produced a document which it has relied upon heavily to claim it had faced financial difficulties. However, even that document had no hard data, as it consisted of percentages and bar graphs based on figures not presented at the hearing. Since the Board does not have before it the background figures which have apparently given rise to the bar graphs and percentages, and is unaware of what the actual financial status of the Clinic is, it is unable to come to any conclusions about whether the Clinic is actually in serious financial difficulty. Hence, given the reliance of the Clinic on its financial position during bargaining, and the union's repeated requests for financial information which the employer did not provide, I find the employer's refusal to respond meaningfully to the union's requests to constitute a failure to make reasonable or expeditious efforts to conclude a collective agreement.

109. There is no evidence before me to suggest that the Clinic is different from any other organized Ontario workplace which has included arbitral review of employer decisions. As outlined above, the Board does not have sufficient evidence before it to establish that the Clinic had serious financial concerns. Like the Board in The Boys' Home, cited above, lam not satisfied that either of the employer's rationales is sufficiently cogent to warrant such a departure from what is one of the fundamental benefits of' collective bargaining to employees, access to grievance arbitration for review of an employer's decision, and an opportunity for an arbitrator to assess whether the penalty imposed by the employer is warranted in all of the circumstances of each case. The Board finds the Clinic position regarding these issues to have been a refusal of the employer to recognize the bargaining authority of the trade union, and uncompromising positions which it adopted without reasonable justification,

110. Hours of Work, Rest Periods and Meal Breaks: The union, from the beginning of negotiations, asked for what the employees already had as rest periods and meal breaks in the existing Clinic policy. Thus it was seeking in the Hours of Work provisions to have a 7.4 hour work day with a 45 minute unpaid meal period, and two 20 minute rest breaks for the majority of the employees (the ultrasound and x-ray employees had a different work day). The employer proposal was that employees should work 7.5 hours per day, have a 30 minute unpaid meal period, and rest periods would be reduced to 10 minutes each. The employer was also unprepared to pay employees any more for the increased work day, and wanted the employees' present hourly rate to be re-calculated down to reflect this. This amounted to the employer seeking 130 minutes a week of extra work without pay for every employee in the bargaining unit. The employer justification for its proposal was that it made sense to have 7.5 hour days, that it made calculations easier, and that this was simply the economic reality because of the financial situation of the Clinic. The union committee was very upset with this employer proposal because the bargaining unit members of the committee felt the employer was penalizing them for having unionized.

111. Wages and Benefits: As noted above, the employer was seeking to have the prevailing hourly rate for bargaining unit employees reduced by seeking extra hours of work for no pay. When it tabled its wage proposal on October 29, 1996, it indicated it was seeking a two-tiered wage grid such that existing employees would be kept at their present (but reduced) rate, and new employees, who also had to join the union and pay union dues, would be paid at a lower rate. In addition, while existing employees would continue to have their benefits covered by the employer, the new employees would have to pay 50% of the cost of benefits. The union proposal for benefits was to maintain what the employees were already receiving. The union was seeking an increase in wages for all employees. The employer justification for its proposals in this area was that it was experiencing financial difficulties. It was unclear how the two tier system, which would only save the employer money if there were new employees hired, would benefit the employer in this regard, especially as the employer by all accounts was in a down-sizing mode. The union saw the employer's proposals as giving the employees a message that the union could not benefit them, and would in fact cost them more. It was therefore seen as an encouragement to employees to decertify the union, and a failure to recognize the bargaining authority of the union.

112. Vacations: The union proposal on vacations was to maintain the entitlements at what the employer had in its personnel policy. The only area in which the union was seeking an increase was for employees who had worked for the Clinic for over 35 years, so that such employees could get one extra vacation day per year of service. The employer position was to change the vacation year and to give vacation entitlements based on full months worked in the year previous, so that an employee who had been away from work sick for any length of time may have her vacation entitlement in the following year reduced. There is no evidence of employer justification for this position. The union argued that by reducing what employees had been receiving before certification, the employer was imposing a penalty on employees for having unionized.

113. With its first proposal for a collective agreement, the union had tabled its proposals on all the monetary issues, except for wages. It repeatedly asked the employer for its monetary proposals, with the exception of a wage proposal. The Clinic was of the view that the parties should deal with the non-monetary issues first, and this is apparently what the parties did with the acquiescence of the union. Unbeknownst to the union, it was also the employer strategy to only put on the table some monetary items when it believed no further progress was being made on the non-monetary items. Thus, in early September, 1996 the Clinic made its monetary proposal on all items except for wages, and on October 29 it made its wage proposal. The union argues that the employer had accepted by early September, 1996 that little or no progress was being made on the non-monetary articles.

114. In Hillview Farms Limited, [1990] OLRB Rep. May 564, the Board conducted a first contract arbitration in which the employer asked for a two-tiered pay structure. The Board found it inappropriate to award a two-tier wage structure which may appear to penalize employees hired after unionization. The Clinic had many proposals which were designed to create a two-tiered structure such that employees hired after certification and after the collective agreement had been reached would have to pay union dues, have to belong to the union, would have to pay 50% of the cost of their benefits package, and would be paid less than employees who had been at the Clinic prior to certification.

115. In addition to the two-tiered proposals, the employer was consistently seeking less than the prevailing status quo for employees in the bargaining unit, By its proposals regarding hours of work, rest periods, meal breaks, wages and benefits, and vacations, the employer was signalling to the employees that they would not benefit from having unionized. As found earlier, the employer did not provide the union with any meaningful financial justification for the positions it was taking. Having regard to the Board's statements in Bourque and Atway Transport, cited above, the Board finds that the Clinic was taking uncompromising bargaining positions without reasonable justification.

116. Probationary Period: In its initial proposal the employer proposed a 3 calendar month probationary period for regular full-time staff, and 520 worked hours for regular part-time staff. By October 30, 1996 the Clinic was proposing that all new full-time employees would be probationary until they had worked 60 consecutive working days, and part-time employees must work 450 hours within any 6 month period to pass probation. The union viewed this as a hardening of the employer position and was concerned that in the future new part-time employees may never get past the probationary period as the employer was imposing a six month rolling time limitation. It was further concerned that since probationary employees have limited rights to grieve, the employer would be able to keep part-time employees on probation endlessly, and could thereby deprive them of access to substantive portions of the collective agreement.

117. The employer's position with respect to a probationary period for part-time workers provi­sion may be viewed as another example of attempting to limit the scope of the collective agreement, and of limiting the number of employees who would have the protection of the collective agreement. As such, it may be seen as a refusal to recognize the bargaining authority of the union.

118. Employees over the age of 65: September 5, 1996, almost II months after the parties had begun bargaining, the employer proposed that employees who reached their 65th birthday be subject to mandatory retirement at the discretion of the Executive Director. Any employee who worked past 65 would no longer be covered by the provisions of the collective agreement. The union argues that the employer was essentially seeking to alter the recognition clause, which had long since been agreed to. The union was certified for an "all employee" unit, with exceptions, and the parties had agreed to a recognition clause reflecting the certificate. The union therefore contends that the employer was refusing to recognize the bargaining authority of the union by trying to bargain this proposal.

119. With respect to the Clinic's proposal to exclude from the protection of the collective agreement those employees over the age of 65, the Board has no hesitation in concluding that the Clinic was proposing to amend the recognition clause, and that such an issue cannot be pressed to impasse at negotiations. The union had been certified for an "all employee" unit, and the employer had already agreed that the recognition clause would reflect that. It is not sufficient justification to suggest that the Human Rights Code does not extend to the protection of those over the age of 65, so that the collective agreement did not have to either. The Board finds that the Clinic was, at a late stage in negotiations, still attempting to limit the parameters of the bargaining unit and was refusing to recognize the bargaining authority of the union.

120. Arbitration Procedure: From the start the employer position was that it wanted a panel of four arbitrators who would be used by the parties on a rotation system. By October 30, 1996 the union was prepared to consider this concept, but wanted to have some of its suggested names of arbitrators on the panel. The employer refused to add a single name from among the union's suggestions to the list of arbitrators, and provided no justification for this position. At one point earlier in the negotiations when Mr. Armstrong had told Mr. Bickford that he was not happy with the names of arbitrators on the list, Mr. Bickford threatened to call the arbitrators and tell them what Mr. Armstrong had said. It is the union's view that the employer took an uncompromising position on this issue without reasonable justification and was purposefully prolonging negotiations as a result.

121. There is no justification for this employer position, and it is indicative of the employer view that it could assert its will over the negotiations. The Board finds that this was simply another example of the employer taking an uncompromising position without reasonable justification, and behaving at the bargaining table in an unnecessarily bullying fashion.

122. Miscellaneous Issues: The union alleges the Clinic refused to discuss a number of the union's proposals, including language on contracting out, bargaining unit work, and operational changes (the use of VDT's while an employee is pregnant). It was the employer's position in negotiations that this was not the type of workplace where such language was needed, and that the Clinic wanted a pared down, simple collective agreement, not a normal collective agreement. The justification for wanting a simple agreement was that Mr. Johnson had worked at the Port Arthur General Hospital and had seen how expensive administering a collective agreement could be. On these issues the Clinic was completely unwilling to negotiate. As the Board has found earlier, there is no evidence before it that this was a unique workplace, nor why the provisions the union was seeking could not be negotiated. By simply refusing to negotiate, the Board finds that the Clinic took an uncompromising position without reasonable justification.

123. It is worth noting that Mr. Bickford had told Mr. Armstrong at one point in negotiations that the language the Clinic was seeking was in another collective agreement. There is no evidence before me that the collective agreement in question is a norm in the industry. However, although the Clinic had the collective agreement it was referring to, it never showed it to the union or informed it who the parties to that agreement were so that the union could get a copy of its own. In any event, the language the Clinic was seeking was more stringent than what was in the collective agreement referred to. Since the Clinic never shared this collective agreement with the union I have found the evidence about it to be of little assistance to me in reaching my decision. What was never discussed fully at the negotiating table cannot be relied upon after the fact, when the union is alleging that the employer had no justification for various of its apparently uncompromising positions.

124. The Clinic argues that it did not refuse to recognize the bargaining authority of the union and cites as examples that it installed a bulletin board in the Clinic when the union asked for one, it invited the chief steward to its health and safety meeting when there had been a water problem in the Medical Records area, and that Mr. Johnson talked to Mr. Armstrong, and gave him a tour of the Clinic when the employer was contemplating layoffs. While the Board is not unmindful of these gestures made by the employer, in the context of the Board's task pursuant to section 43(2), these actions are of little assistance to me in reaching my decision, because the focus of the section is on the process of collective bargaining and the bargaining positions taken by the parties.

125. On the issue of whether the Clinic took uncompromising bargaining positions without reasonable justification, the Clinic argues that "impasse" had not been reached because there was still "movement" on articles and everything was still negotiable. The employer characterizes as "movement" during bargaining the following events: the sending back and forth of comprehensive recitations of the proposals; the Clinic preparing comprehensive proposals; the parties' agreement on items; changing a word or phrase; when either party adopts the other's style of language or format for an article; and, when a party re-submits the same position again. In this vein, the Clinic argues that this application is premature as the union, with its new negotiator, should have given bargaining a chance. The employer relies on the fact that it always provided the union with comprehensive responses for the proposition that it was not taking an uncompromising position. Indeed, it characterizes the union's negotiating strategy on the last day of negotiations as being uncompromising because the union did not give a comprehensive response to the employer's package of the day before, but was insisting on dealing with packages of a few articles only or nothing.

126. It is disingenuous to characterize as "movement" or progress that which the Clinic relies upon. If that were the case a party could endlessly change a word or phrase, send proposals back and forth, and suggest that bargaining was still progressing. What the Clinic has called "movement" is what the Board characterizes as surface bargaining.

Setting bargaining dates and the time taken to negotiate:

127. The Clinic argued that it did not fail to make reasonable or expeditious efforts to conclude a collective agreement. A review of the evidence in regard to how the parties set bargaining dates, when and where they bargained follows.

128. As noted earlier, the union gave the Clinic written notice to bargain on June 12, 1995. On that date the union also requested information about the names, addresses, seniority dates and wage rates for bargaining unit employees, who the union would have contact with at the Clinic, copies of all employee benefit plans, and of employer policies relating to wages, benefits, and working conditions. One month later, on July 10, 1995, Richard Armstrong, the Vice-President and Local Director for the union, and its chief negotiator, again wrote to the Clinic because he had not received any of the information he had requested. On August 17, 1995 Mr. Armstrong wrote to Mr. Bickford again requesting the information and indicating he had drafted a collective agreement for consideration by the union's negotiating committee but could not complete it without the information he had requested in June. He indicated the bargaining process would be frustrated without the information. The material was finally sent to the union on August 18, 1995, two months after it had been requested.

129. On August 25, 1995 Armstrong spoke to Mr. Bickford's secretary about the setting of negotiating dates, and as a result, asked Mr. Bickford's office to hold October 25, 26, 27, November 6, December 7,8, 1995, and January 9, 10, 11, 1996 for negotiations, and to confirm these dates with the Clinic. At that early stage, Mr. Armstrong offered the use of the union boardroom for negotiations.

130. On September 8 the union informed the employer of who would make up its union negotiating committee, and on September 13, 1995 informed the employer that it had applied for the appointment of a conciliation officer. It appears this was the union's normal practice in negotiations; Ron Gurevitch was subsequently appointed as the conciliation officer by the Ministry of Labour. On September 18, 1995, almost one month after the union had suggested dates for negotiations, the Clinic responded indicating that it was confirming its availability for all of the dates suggested except October 25. it asked the union to confirm its availability and whether the union would agree to a 9 a.m. start time, and indicated that the employer preferred to use Mr. Bickford's law office meeting rooms for the negotiations. It is unclear why Mr. Bickford was looking for confirmation on the dates from Mr. Armstrong as those dates had been offered by Armstrong, and as Mr. Bickford's secretary appears to have understood, were dates canvassed and confirmed with Mr. Armstrong.

131. It appears that by September 27, 1995 the Clinic had still not decided who would be on its negotiating committee, but had set negotiating dates, That day a partners meeting was held and it was decided that John Johnson, the Executive Director, and two very busy physicians, Dr. Rick Almond and Dr. Morris Mymko, would be on the negotiating committee. Mr. Johnson, on September 28, told Mr. Bickford's office not to confirm the dates already confirmed, as he wanted to check the doctors' calendars.

132. On October 6, 1995 Mr. Bickford wrote to the union and said that since the union had not confirmed the dates outlined earlier, he was now holding all of the October dates for an arbitration hearing, the January 9 date was not available for one of the doctors, and the Clinic was offering January 8, 22 and 29, 1996, He also now changed the meeting time for the start of negotiations to 4 to 9 p.m. for all negotiating sessions. In this letter Armstrong was asked to "address all future inquiries and correspondence to" Mr. Bickford as counsel for the Clinic during the negotiations. On October 13, 1995 Mr. Armstrong spoke to Mr. Bickford's secretary to advise her he was very frustrated about the dates, and that the October dates had been previously discussed. It appears that, in fact, Mr. Bickford was now available for the October dates, but at this juncture the doctors did not want to meet.

133. On October 16, 1995 Mr. Armstrong put in writing his concerns about the change of dates, and of the timing of negotiations. Nonetheless, the union agreed to meet at 4 p.m. at Mr. Bickford's office on November 6. The union suggested that as a compromise to the meeting venue issue, that the parties alternate meeting places between Mr. Bickford's office and the union office. Mr. Armstrong indicated he was not available on two of the new dates the Clinic was offering, but was available on January 10, 11, and 22, and suggested those meetings beheld at the union office.

134. By a letter dated October 24, 1995 the Clinic firmly refused to meet at the union office or to negotiate for the full day on any of the confirmed dates, and reiterated it would only meet in the evenings. Mr. Bickford told the union he was not available on January 10 and 11, so the employer cancelled those dates.

135. On November 6, 1995, five months after the union had given notice to bargain, negotiating began with the union giving the Clinic its proposed collective agreement. At that session the union went through its proposal, and the rumours that the Christmas bonus and party were being cancelled were discussed. The Clinic said it would provide the union with further information about why the bonus and party were being cancelled, and said it would provide further January dates for negotiations. By November 20, 1995 the Clinic had not responded and the union wrote Mr. Bickford a letter asking about these matters, and suggesting that the parties try to find three dates in each of January and February, 1996.

136. Mr. Bickford responded to the union's request on November 22, stating that the Clinic proposed January 9 and 25, 1996, and that all further negotiations would be starting at 5:30 p.m., rather than the earlier 4 p.m. Interestingly, it had been the Clinic which had previously said it could not bargain on January 9, and had cancelled that date. The parties had discussions and exchanged correspon­dence between November and early January regarding the union's decision to file an unfair labour practice complaint about the alleged violations of the statutory freeze. The employer took the position that filing that complaint was a breach of the duty to bargain in good faith, and it filed its own section 96 complaint alleging that the union had breached section 17 of the Act. Thereafter, on January 16, 1996 Mr. Bickford wrote to Mr. Armstrong and said that it did not make sense to continue bargaining on January 22 and 25 as a result of the Clinic's section 96 complaint. The union disagreed. Finally, on January 22, the date set for the negotiation, Mr. Bickford informed the union the Clinic would meet after all, but now at 6 p.m., later again than the previous sessions. The parties also met on February 13, 1996.

137. Ron Gurevitch, the conciliation officer, held a negotiation session with the parties on February 27, 1996 at a neutral site, the Airlane Motor Hotel. Both parties agree that progress was made at that bargaining session. By a letter dated March 4 from Mr. Bickford, the next negotiations were set for March 19 and 26 at Mr. Bickford's office, to begin at 6 p.m. Mr. Armstrong responded on March 14 asking that the parties meet at a neutral site, and that they share the expense. He asked for Mr. Bickford's suggestions for a venue. By March 19 Armstrong had still not heard from Mr. Bickford. On March 19 Mr. Bickford responded in a letter that the Clinic saw no reason to meet at a neutral site and pay extra expenses for it. The Clinic proposed to keep meeting at Mr. Bickford's office. Mr. Armstrong then sent back a letter, that same day, saying the union wanted to meet at a neutral site or cancel that evening's negotiations. The flurry of correspondence continued, with the Clinic then saying it would agree to meet at the union's office that evening, and alternate back to Mr. Bickford's office for the next session. However, the union office was not available. The union asked for more dates in April and May, and suggested the March 26 date be held at the union office. The Clinic agreed, and offered Mr. Bickford's office for that evening's negotiations, but refused to pay to meet at a neutral location. The March 19 negotiation session was cancelled, but subsequently the March 26 session was held at the union office.

138. On March 29 Mr. Bickford confirmed that the negotiations would continue on April 30, June 5, and 19, 1996. The venue was no longer an issue as the employer had finally decided to hold sessions at both Mr. Bickford's and the union's offices. On May 23 Mr. Armstrong wrote to Mr. Bickford suggesting that negotiation dates be set up in late June, July and August. On June 3 Mr. Armstrong cancelled the June 5 date.

139. Mr. Johnson was on vacation for the month of July, so he was unavailable for negotiations. Mr. Bickford, on July 18, offered one day out of four possible early August dates. By July 30, 1996 the parties had confirmed August 6 as the next date, and it is apparent that August 15 was being held by the Clinic team as a possible date. Mr. Armstrong, on July 30, asked that August 15 continue to be held, and he asked for more dates. On August I Mr. Armstrong wrote to Mr. Bickford to suggest that dates he knew Mr. Bickford was available be held for negotiations: August 15, September 16, October 10, 16, and 17. The parties never met on August IS, 1996 because the Clinic cancelled that date. On August 20 Mr. Armstrong wrote to Mr. Bickford stating he had still not heard anything about the dates he had proposed, and indicated it appeared that the Clinic was "intentionally attempting to frustrate the collective bargaining process". Mr. Bickford responded with a letter that same day indicating he would be on vacation for some time between the end of' August and mid-September, but suggested the parties meet in late September, He indicated that his client was also concerned about the amount of time it was taking to do negotiations, and would like to move along more quickly. As a consequence of this, for the first time on August 27, Mr. Bickford indicated to the union that Garth O'Neill of his office would be available for negotiations while Mr. Bickford was away,

140. It appears that Mr. Armstrong was also not available, so the parties agreed to meet on September 16 for the next negotiating meeting. Mr. Johnson was away in the latter part of September, and Mr. Bickford was unavailable in the first three weeks of October, so the Clinic committee had no further dates to offer until late October, 1996. On September 5 Armstrong suggested negotiation dates of October 21, 29, 30, November 12 and 27. On September 10 Mr. Armstrong confirmed the dates of October 29, 30, and November 12 as negotiation dates.

141. The Board set October 29, 30 and 31 as dates in the section 96 complaints. The parties eventually agreed to adjourn these dates, and they met to negotiate on the evenings of October 29 and 30. By October 2 Mr. Johnson was asking Mr. Bickford to set more negotiation dates, and in particular he wanted a date between October 10 and 29. Mr. Bickford was apparently available on October 15, 16 and 2S, although he had not indicated availability in August when the union had first offered October 16, In any event, Glen Oram was taking over negotiations from Mr. Armstrong, and was at this stage not available on any of the October dates now being offered. By a letter dated October 11 Mr. Oram informed the Clinic of his unavailability, and expressed his concern that the employer was now proposing additional dates on less than a week's notice, when it was almost impossible for the union to make itself available. Mr. Oram suggested that the parties meet during the day to speed up negotiations since the employer was now expressing some interest in getting the negotiations moving. This offer was never taken up by the Clinic.

142. At the October 29 meeting Mr. Bickford went through the Clinic's comprehensive response, with Mr. Oram attempting to get clarification of the employer's positions. Mr. Oram told the Clinic it was seeking articles no one would see in a collective agreement, and that the union must have in its first collective agreement a union security clause. He indicated that if the employer would try to identify its "bottom line", the union would too and the parties could move the negotiations along. Mr. Oram decided to take some risks by packaging some articles together and attempting to identify the things which were likely important to each side. He intended to group a few articles together, make some movement towards the employer's position on some and to try to move the employer towards the union's position on others, but the grouping would have to be accepted as a package. In the event that it was not, each party would revert to its original position.

143. Hence, the first package offered on October 30, 1996 included a union proposal that the employer and union would interpret the collective agreement in accordance with the provisions of the Human Rights Code and the Employment Standards Act; the union proposal for union security; a proposal that there be no discrimination by either party or any employee on the basis of membership or non-membership, or activity or lack thereof in the union; and the union was prepared to withdraw its proposed article on sexual harassment. When the employer returned the union's proposal it did not accept it as a package, but only accepted the provisions where the union had moved towards the Clinic position. On the issue the union was most interested in, union security, the employer added a Letter of Understanding essentially allowing any current employee to opt out of union membership and the payment of union dues to the union if the employee asserted a religious belief or conviction. There was no further discussion on the package.

144. The union then offered a package in which it essentially accepted the employer's manage­ment rights clause with the most substantive change being the addition of the word "reasonable" so that the employer could "make, enforce and revise from time to time reasonable rules and regulations"; in the Clinic's complaints and grievance procedure provision the union was seeking to have the time limits apply only to the processing of a grievance, not to its initiation, and to soften the language on time limits; in the Clinic's discharge grievance procedure provision, the union made some changes to modify the specific penalty clause to allow employees to be disciplined, up to and including discharge, for the employer's list of infractions, but to allow employees the right to file a grievance; and, the union amended the Clinic language on the filing of a discharge grievance to include discipline or suspensions, to allow an employee 5 working (as opposed to calendar) days to file a grievance, and to have the employer notify the union within 3 working days of the dismissal of an employee. The Clinic response was to remove the word "reasonable"; to reinsert a provision that all of the Clinic's pre-existing policies would continue in force unless inconsistent with the collective agreement; to essentially revert to its original proposal on specific penalties; to revert to the S calendar days, but to agree to tell the union within 5 calendar days of the dismissal of an employee. The package was abandoned.

145. The last package proposal the union made on October 30 was for the arbitration clause. The union proposed four names of arbitrators for the panel proposed by the employer, and asked for its language with respect to the general types of arbitration provisions about the composition of the board of arbitration, who pays the expenses of the board of arbitration, their jurisdiction, etc, The employer in response did not accept one of the union's names for the list of arbitrators, substituted one of its own names with another name of its choice, and essentially re-submitted its own arbitration clause.

146. The parties accomplished nothing in the course of October29 and 30, 1996. The Clinic was of the view that Mr. Oram had thrust a new approach to bargaining on them, and they were not used to it. It felt he had "broken the rules" by not simply going through the whole list of outstanding items as the parties had always done before. The union felt that as long as it bargained in good faith, it was prepared to try a new negotiating method to break the logjam. In Mr. Oram's experience this had been an effective method of negotiating. Mr. Oram was of the view the employer was hardly moving at all on relatively straightforward issues, and he wondered what would happen when the parties got to what are usually contentious issues, like monetary items. The employer was refusing to agree to standard clauses, and Mr. Oram felt there was no point in negotiating any further after the October 30th experience because if the employer had been serious about reaching a collective agreement, it would have taken some of the outstanding articles off the table after one year of bargaining. On October 30 the employer informed the union that it may be applying for a "no board" report from the conciliation officer.

147. On October 29 the employer had made a wage proposal that created a two tier system such that present employees would be paid at their present rate (but for working more hours) and new employees would be paid at a lower rate. Mr. Oram felt the employer could not be seriously negotiating if this was its opening position when it was not even moving on any language in the collective agreement. On November 1, 1996 the union sent the employer its wage proposal, seeking an increase.

148. It took four months for these parties to start negotiations after the notice to bargain had been given by the union. In all, the parties held 13 negotiating sessions over the course of the twelve months in which they met. Upon the employer's insistence, the sessions were evening sessions held between approximately 6 p.m. and 9 or 10 p.m., of about four hour durations each. It is noteworthy that the employer started out suggesting a start time of 4 p.m., and gradually moved it to 6 p.m. At one point in June, 1996 the union suggested that the parties meet on a weekend so as to be able to negotiate for a full day, but that never happened. In early October, 1996 Mr. Oram again suggested that the parties meet during the day to speed up negotiations. There is no indication in the evidence that it was ever seriously considered by the Clinic. The Board is prepared to take notice of the fact that it is difficult for people to be as productive in the evening and night, after a full day of work, than they would be if they began a task first thing in the morning, or at any point during the day. Given the number of issues these parties had outstanding, and the slow pace of negotiations, it was unreasonable for the Clinic not to agree to some daytime negotiations during the year of bargaining.

149. While the employer suggested that both the union and the employer had had trouble in finding dates on which to meet, and while that seems to be true, on all of the evidence before me it was the union which consistently attempted to get the Clinic to commit itself to more negotiating dates, and it was not until early October, 1996 that the Clinic decided it wanted to speed up negotiations and so began to offer some dates. While it was the union which offered numerous dates from the start, by August, 1996 it had become even more concerned about the pace of negotiations. As is clear in the discussion about the negotiations, this was not a groundless concern. The Clinic on a number of occasions would not take dates the union offered, only to ask close to the date to meet to negotiate on a date it had earlier rejected,

150. The question of the venue of the negotiations should never have been such a point of contention, but the employer insisted that the meetings be held at the employer counsel's office. Hence, although at the very outset of negotiations, in October, 1995, the union had suggested the compromise of alternating meetings at Mr. Bickford's office and its own office, it was not until the fiasco of March 19, 1996 that the Clinic finally conceded to meet at alternating locations. It is self-evident that the union negotiating committee would like to meet on its own "turf' from time to time, and it was simply an unreasonable show of power on the part of the Clinic to force the issue to the March 19 cancellation of a negotiating date. The Board finds that this was an example of the Clinic refusing to recognize the bargaining authority of the union and of attempting to undermine the union.

151. The Clinic suggested that the union wasted negotiating time by bringing "operational issues" to the bargaining table for discussion. It was referring to Mr. Armstrong asking the Clinic about such matters as the Christmas bonus and party, about layoffs, and about a health and safety issue. I am satisfied that the union did not see itself as having any option but to bring issues to the bargaining sessions for discussion because that is what Mr. Bickford had told Mr. Armstrong to do in a conversation on September 28, 1995. That admonition was followed up with a letter on October 6, 1995 wherein Mr. Bickford reiterated that he wanted Mr. Armstrong to "address all future inquiries and correspondence to me as counsel for the Clinic during these negotiations". The only place the union could meet with both the employer and Mr. Bickford was at the bargaining sessions, so it is not surprising that it raised its concerns in that venue. In any event, in the course of negotiations which spanned one year it seems there were only three or four issues ever discussed, and it appears that an untoward amount of time was not spent on these matters.

152. The employer argues strenuously that if the union had not filed its first unfair labour practice complaint, then things would have moved along more expeditiously. It is suggested that the union spent its energy on preparing that complaint rather than focusing on the negotiations. The Clinic argues the union should have indefinitely adjourned that complaint as it was also bargaining for a provision in the collective agreement for superior benefits anyway, and the activity on the Board file was disruptive to the parties' relations. The employer makes no mention of its own unfair labour practice complaint, and the effect it had on the negotiations. There is no evidence before the Board to suggest that the same persons who were negotiating also had carriage of the unfair labour practice complaint. Indeed, all ot' the correspondence with respect to the complaint came from Glen Chochla, the counsel for the union, and not from Messrs. Armstrong or Oram, who were the negotiators for the union. In any event, a party has the right to file an unfair labour practice complaint if it believes it has reason to do so. Furthermore, failure to do so in a timely fashion may even prejudice a union if it later seeks to rely on a stale allegation which had not been raised. The Board, in this instance can see no delay caused to bargaining as a result of the filing of the complaint.

153. The union argues that the employer had made the decision that the parties would go through all provisions of the proposed collective agreement at each bargaining session, and that between negotiating dates, the parties would exchange proposals through the mail. It is suggested that this method of negotiating slowed down the negotiations.

154. The evidence suggests that commencing from April 17, 1996, the union had agreed to this method of preparation between bargaining sessions. Hence, in May, June, September, and October there are examples of the union and employer sending each other updated versions of their respective proposals.

155. There is nothing particularly unusual in this system, and indeed, given the breaks between bargaining dates and the pace of negotiations, it appeared to have kept the parties doing something constructive between their meeting dates. I am of the view that this system was agreed to by the union, and that it did not, in itself, have any negative impact on the process of bargaining.

156. The Clinic has argued that the union's change in negotiator had a deleterious effect on negotiations as Mr. Oram had not been present previously, and did not know how the parties had been bargaining. In addition, Mr. Oram introduced a new method of negotiating which the Clinic found unsettling. It ought not to be surprising to anyone that, when negotiations take more than a year, personnel changes may occur, In The Boys' Home, cited above, the original union negotiator had to be replaced with a new negotiator when she went on sick leave. The Board in that case found that the new negotiator brought a fresh approach to the bargaining table and attempted to kick-start the stalled negotiations. In the case before me I am satisfied that Mr. Oram was an experienced negotiator, he had reviewed the parties' progress to date, had prepared himself for the negotiations, and he did bring a fresh approach which he hoped would help the parties to get past some fundamental issues which, to his surprise, were still on the table after a year of negotiations.

157. On all of the evidence before me, and for the reasons outlined above, I am of the view the Clinic, by its decisions about when, where, and at what times it would negotiate, failed to make reasonable and expeditious efforts to conclude a collective agreement.

158. The union has argued that the Board should consider the evidence in the unfair labour practice complaints when it considers the section 43 application because what led to the unfair labour practice complaints was all a part of the context of the bargaining for a first collective agreement in this workplace. The Christmas party and bonus issues are clearly linked to the terms and conditions of work, and the employer let rumours about their cancellation filter out to the employees before the first day of bargaining in November, 1995. The union argues that the employer undermined the union's recognized bargaining authority by its actions, compounded by the comments made by Mr. Bickford at the bargaining table.

159. The union relies on the February 6, 1996 letter from the employer to all of the employees to suggest that the employer was purposefully making the employees feel insecure about their continued employment, and pointing to them the cost of bargaining a first collective agreement as a contributing factor in the Clinic's insecure future. The letter was compounded, according to the union, by the comments made by Dr. Maskey and Karen Menei about the need to decertify the union or else the Clinic would close.

160. Hence, the union asks that the Board consider the linkage between the unfair labour complaints and the first contract direction application, as the complaints show the poisoned atmosphere the employer created at the time the parties were supposed to be engaging in collective bargaining, In particular the union asks the Board to consider the evidence that at most union bargaining unit meetings for about a year before November 7, 1996, the employees of the Clinic asked questions about the Clinic closing, and the costs being incurred by the employer in the process of collective bargaining because they were concerned about their jobs. It is argued that the employer, by its actions complained of in the unfair labour practice complaints, undermined the union.

161. The Clinic argues that the unfair labour practice complaints and the section 43 application are separate and unconnected in subject matter, and that the Board should not consider the evidence in the complaints when deciding the first contract application. It argues there is no evidence that the events complained of emasculated the union, and suggests that it remained open to the union to engage in a strike or continue to bargain. The Clinic concedes that the Board can consider the section 96 complaints as part of the backdrop to collective bargaining between these parties. The employer states that the cases the union relies upon in its argument are distinguishable because all had a demonstrated lack of success in bargaining, and most of them had the employer taking uncompromising positions. There was also a pervasive pattern of negative conduct by the employer, which goes to the state of mind of the employer, and from which the Board can draw inferences about the employer's bargaining position.

162. The Board has, in the past, considered the impact of allegations made in a section 96 complaint when assessing the merits of a section 43 application. In The Corporation of the Town of New Tecumseth, (Unreported, Board File No. 3106-95-FC, September 26, 1996) the Board was asked to consider a union's allegations made in a freeze provision complaint, which had not been litigated at the time the parties were pursuing the section 43 matter. While the Board did consider the complaint, in that case the Board indicated that on the evidence before it, it could not find a failure to recognize the bargaining authority of the union.

163. In this case, although it was not necessary to do so for the purposes of my analysis of the evidence with respect to the bargaining itself, I have considered the section 96 complaints as they had been heard and argued with the section 43 application, and do form a part of the background to the bargaining. Given my findings on the two complaints, I am of the view that the Clinic's breaches of the Act contributed to a poisoned atmosphere in the bargaining unit because the employer's actions set an early and negative tone in the bargaining, and encouraged a sense of insecurity among the employees, which grew as the bargaining extended over the course of a year. By the end of October, 1996 the employees of the Clinic had been certified for almost a year and a half, and had nothing to show for it but a growing sense of unease, fuelled by the employer's comments through its partners.

164. As the Board stated in The Boys' Home, cited above, "the risk that a party runs by simply exercising overt power is the potential for concluding its first set of negotiations at interest arbitration rather than by negotiated settlement". In the case before me it is apparent that because the Clinic had caused fear about job security and the viable continuation of the business of the Clinic, the employer did not believe that the union could mount an economic challenge to the employer's negotiating position. It therefore bargained from what it believed was a position of superior strength, and included a number of punitive elements in its bargaining positions. While the Clinic professed to want to move forward in the negotiations, it did not behave as if it wished to do so on October 29 and 30, 1996, or at any point in the year previous. Had it done so, such fundamental issues as union dues and union security would not still have been outstanding. It is disingenuous for Mr. Johnson to have testified at this hearing that everything was still negotiable when the Clinic had taken no significant steps to prove that, even in the face of the union constantly attempting to meet the Clinic part-way on the adoption of the Clinic's language.

165. On all of the evidence before it and for the reasons outlined above, the Board is satisfied that the Clinic's approach to bargaining was designed to not only defeat collective bargaining, but in the process to also communicate to the employees that unionization was not going to benefit them. The evidence suggests that bargaining unit members were constantly raising at union meetings their fears of the consequences of the cost of collective bargaining for the employer, and that the Clinic may close. The employer's proposals to reduce many working conditions below the status quo before certification seem designed to indicate to the employees that the union could not gain any tangible benefits for them, and had caused the reduction in what they had heretofore had. The fact that a termination application has been filed suggests that at least some of the employees got the employer's message. In all of the circumstances it is difficult to avoid the conclusion that the employer was unwilling to reconcile itself to a collective bargaining regime. In the course of bargaining, as evidenced by its positions on the probationary period; collective agreement coverage for employees over age 65; union security and dues, discharge, layoff, recall and job posting provisions; and the arbitration procedure, the Clinic tried continuously to maintain its unfettered discretion. It is apparent that the Clinic wished to continue to deal with its employees as though there had been no certification of a bargaining agent, and the Board finds this to be a refusal to recognize the bargaining authority of the union. For all of the reasons outlined above, the Board is satisfied that it appears that the process of collective bargaining has been unsuccessful because of the refusal of the employer to recognize the bargaining authority of the union, because of the uncompromising nature of the bargaining positions adopted by the employer without reasonable justification, and, due to the failure of the Clinic to make reasonable and expeditious efforts to conclude a collective agreement.

166. Having regard to the findings outlined in this decision, the Board finds it appropriate to direct that a first collective agreement between the Fort William Clinic and the Service Employees Union, Local 268, be settled by arbitration. Pursuant to section 43(23) of the Act, the termination application in Board File No. 2990-96-R is therefore dismissed.

Appendix "A"

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by order of the Ontario Labour Relations Board

THE BOARD, AFTER A LENGTHY HEARING, HAS DETERMINED

THAT THE FORT WILIAM CLINIC HAS BREACHED SECTIONS

70, 72, 76 AND 86 OF THE ACT.

THE BOARD HAS ALSO DETERMINED THAT AS A RESULT OF

TEE CLINIC'S ACTIONS DURING COLLECTIVE BARGAINING, IT

IS APPROPRIATE TO DIRECT THAT A FIRST COLLECTIVE

AGREEMENT BETWEEN THE FORT WILLIAM CLINIC AND THE

SERVICE EMPLOYEES UNION, LOCAL 263, BE SETTLED BY

ARBITRATION.

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

This notice must remain posted for 60 consecutive days.

DATED this 11th day of June, 1997.