4304-96-U Amalgamated Transit Union, Local 1703, Applicant v. McDonnell-Ronald Limousine Service Limited, c.o.b. as Airline Limousine and Peter Zoldhelyi and Smith & Zoldhelyi, Barristers and Solicitors, Responding Parties.

2185-97-R Nick Papaioannou, David Peever et al, Applicants v. Amalgamated Transit Union, Local 1703, Responding Party v. McDonnell-Ronald Limousine Service Limited, c.o.b. as Airline Limousine, Intervenor.

3714-97-U Amalgamated Transit Union, Local 1703, Applicant v. McDonnell-Ronald Limousine Service Limited, c.o.b. as Airline Limousine, Responding Party.

BEFORE: Bram Herlich, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.

APPEARANCES: Cynthia D. Watson and Emile Dagher for Amalgamated Transit Union, Local 1703; Mark A. Stone and Nick Leimonis for Airline Limousine; David Peever and Nick Papaioannou on behalf of the applicants in Board File 2185-97-R.

DECISION OF THE BOARD; October 12, 2000

1. Amalgamated Transit Union, Local 1703 (the “union”) is the bargaining agent in respect of a bargaining unit of employees (which include independent contractors) of McDonnell-Ronald Limousine Service Limited c.o.b. as Airline Limousine (hereinafter referred to variously as “Airline” or “the company” or “the employer”).

2. A certificate issued to the union (or its predecessor) in June of 1994.

3. The collective bargaining process, which included interest arbitration, resulted in a first collective agreement effective from November 8, 1995 until November 8, 1997.

4. Some of the procedural difficulties and their resolution associated with these maters will be discussed in slightly greater detail further in this decision. For the moment, a brief description will assist.

5. This panel of the Board commenced the hearing in these matters in July of 1997. At that time the union had filed a single application (Board File 4304-96-U) in which it was alleged that the responding party employer had violated numerous sections of the Labour Relations Act in conduct which spanned a period commencing at least as early as July of 1996 and culminating in the filing of the complaint in March of 1997. When some further events transpired very shortly after the filing of the complaint, the union filed further particulars which were incorporated into the Board’s inquiry.

6. We note that although Peter Zoldhelyi and his law firm were named as responding parties, the Board, very early in these proceedings, and for reasons provided orally at the time, dismissed the application as against those parties. Airline conceded at that point that Mr. Zoldhelyi, its corporate counsel, was acting on Airline’s behalf and to the extent he may have acted contrary to the Labour Relations Act, 1995, (a conclusion the employer disputed), Airline would be liable for such conduct.

7. On September 15, 1997 and after the Board had heard some 6 days of evidence in the section 96 complaint, an application was filed to terminate the union’s bargaining rights (Board File 2185-97-R). The Board (differently constituted) directed the taking of a representation vote. The vote was held as directed on September 24, 1997. The report of the returning officer indicates that 103 ballots were cast against the union and 83 in favour. There were, however, 36 further ballots which were segregated and not counted pending resolution of the various challenges raised by one party or another in relation to voter eligibility. In view of those outstanding issues and having regard to the union’s position that the termination application ought to be dismissed pursuant to section 63(16) as a consequence of what was asserted to be improper employer conduct in connection with the application, the matter was listed for hearing commencing on October 20, 1997. On that day, the parties (which now obviously included those who had applied for termination of the union’s bargaining rights) executed a procedural agreement whereby it was agreed that the two matters ought to be heard together before this panel and that the evidence already heard in the section 96 complaint would remain part of the record put before the panel.

8. The two matters thus proceeded together. After some five further days of hearing which culminated in December of 1997, the union, on January 12, 1998, filed a fresh application (Board File 3714-97-U) under section 96 alleging that Airline had committed further violations of the Act related principally, though not exclusively, to positions it had adopted and implemented during the course of collective agreement negotiations which were then underway. The union also filed a companion application in which it sought certain interim relief (Board File 3715-97-M) and which formed the subject matter of a hearing held before this panel on February 17, 1998. In a decision dated February 27, 1998 the Board dismissed the union’s request for interim relief.

9. When the hearing into the termination and the first section 96 application resumed in April of 1998, the Board, largely on consent of the parties, concluded that, although this panel would hear and determine the most recent section 96 application as well, it would first continue to hear all of the parties’ evidence in relation to the first two matters. However, prior to hearing legal argument, the Board would next hear the parties’ evidence in relation to the second section 96 application (an exercise in which the applicants for termination would not be required to participate). When that process concluded the Board would hear legal argument in relation to all of the matters before it. The hearings continued on that basis.

10. Some further details will emerge later in this decision, it will be useful, however, to sketch the nature and structure of the employer’s business.

11. Airline, as its name suggests, operates an airport limousine service, transporting passengers to and from Pearson International Airport in Toronto. The operations of the airport are governed by the Greater Toronto Airport Authority (“GTAA”). The GTAA monitors the issuance and administration of permits to operators wishing to pick up passengers at the airport. Airline (and other limousine companies) have been granted and administer a fixed number of such permits.

12. And while Airline retains the direct operation of some of those permits, it is also in the business of entering into service agreements with brokers in respect of individual permits. A single car may be associated with any given permit. Brokers, in turn, either directly manage the operation of (including actually driving) a car operating under the permit (such brokers are often referred to as “broker-drivers”) or lease those rights to others (“lessees”).

13. Typically and whether it is a broker-driver or a lessee who is the effective operator in respect of a particular permit and car, further drivers are engaged to insure a maximum return on and use of the permit and car in question.

14. Thus, there is a wide range of economic relationships in force in respect of any given permit and car.

15. The Board has heard in excess of 30 days of viva voce evidence from some 30 witnesses; 142 documents were marked as exhibits in these proceedings. Two of the principal witnesses (Mr. Leimonis on behalf of the company and Mr. Dagher for the union) spent what they each might have viewed as something close to an eternity in the witness box. Each was subjected to cross-examinations exceeding three days’ duration. The first day of hearing commenced in July 1997; the last day of oral argument was held on December 21, 1998 although further written submissions (some anticipated, others not) continued to be filed with the Board during the first months of 1999.

16. It is difficult, though perhaps necessary, to capture or distill the essential nature of the character of these proceedings and the relentless and unceasing combative atmosphere which permeated the hearing room on a daily basis. And unfortunately, the relationship that developed between (the principal) counsel over the course of these proceedings contributed little to an orderly or economic conduct of the litigation.

17. This Board is familiar with the need to assess the general credibility of witnesses in the course of the litigation process. It was, however, exceedingly difficult for the Board to perform that exercise in this case. We are hard pressed to imagine other instances before this Board where the witnesses have collectively generated less confidence in the quality of their evidence. And, again as a general observation, the apparent reliability of the evidence being proffered appeared to frequently vary inversely with its importance. Thus, in assessing the evidence, we were left, in many instances with the unfortunate task of selecting the evidence we found to be the least unreliable. The atmosphere of continuing combat left us in frequent doubt as to the reliability of much of the testimony we heard, the witnesses often clearly appearing to be motivated by their calculations as to what would best serve the respective goals of the litigation exercise.

18. Of course, while the Board sometimes experienced the sensation of taking in a cast of witnesses that displayed characteristics decidedly Dickensian or perhaps even Damon Runuonesque, these evidentiary frailties obviously varied in their intensity from witness to witness. A few examples need to be highlighted.

19. No one’s evidence was more dramatic, difficult and enigmatic than that of Nick Leimonis, the president of the company. His display in the witness box was truly breathtaking, perhaps its only regular feature being its unpredictability. He frequently engaged in what must have seemed to him to be the edifying sport of attempting to better his cross-examiner. He was evasive, non-responsive and quarrelsome. And yet on other occasions (perhaps when his appetite for the contest waned), he was entirely docile offering his seemingly disinterested and dismissive agreement to suggestions he had earlier resisted with a vengeance. It was impossible to predict from minute to minute which of these personas would emerge in his testimony. We have had, as a consequence, to receive his evidence with caution.

20. This is not to suggest, however, that the evidence of Mr. Leimonis’ chief counterpart, Emile Dagher, the president of the union, was inherently any more reliable. In fact, in an odd fashion, the evidence and attitudes of these two included at least some shared characteristics. For example, within minutes of commencing his evidence in chief, and in an answer which was less than responsive to the question posed, Mr. Dagher launched into a hearsay account of certain alleged employer improprieties. These had never been pleaded, were not part of the union’s case and were never established or even canvassed in any other of the union’s evidence. Mr. Dagher’s onslaught was undoubtedly designed to embarrass and prejudice the employer and was a clear omen of what became his continuing inability to properly distinguish the roles of witness and counsel. Not unlike Mr. Leimonis, Mr. Dagher displayed a haughty kind of arrogance evidencing his contempt for the employer and this Board at regular and frequent intervals. His efforts to continuously attribute all of the parties’ collective bargaining difficulties (and they have had many) at the feet of the employer without acknowledging even the possibility of any union responsibility in some ways captures the very essence of this case.

21. We shall refrain from describing the demeanor of each and every other witness. We will again observe, however, that the parade of witnesses each of the parties brought before the Board resulted in a display of testimony which, in virtually every case, was clearly ideologically driven by the deep workplace cleavages and the location of the witness of the moment in that configuration. Perhaps one of the few exceptions in this regard was Randy Graham, the union’s International Vice-President. Mr. Graham gave his evidence in a restrained and straightforward manner. Unfortunately for the Board, Mr. Graham’s direct involvement in the various matters with which we have had to deal was relatively limited and his evidence has thus not, by and large, been of great assistance to us. We cannot help but comment that Mr. Graham’s limited involvement was no doubt unfortunate for the parties as well. On the very few occasions upon which the parties were able to accomplish anything remotely productive in their collective bargaining relationship Mr. Graham’s participation was clearly key.

22. It is in this context we have been required to assess the evidence of all of the witnesses and to arrive at the findings which follow. Whether or not evident from the decision which follows, it has been a long and extremely difficult task. And unfortunately, the parties have had to wait too long for this decision.

23. We shall proceed to detail and deal with the various issues in roughly the chronological order in which they arose. This decision will thus deal with the following general areas:

I. Events arising as a consequence of the alleged “work stoppage” in December of 1966

II. Termination of Jacques Ohannessian’s lease

III. Discipline under the collective agreement

IV. Various other portions of the first Section 96 complaint

a. The Termination Vote;

b. Insurance Coverage

c. Nomination

d. Mr. Peever’s dues

e. Other events

V. Application to terminate the union’s bargaining rights

VI. Bargaining Conduct (the second section 96 complaint)

a. Union Dues

b. Service Fees

VII. Conclusions and Remedies

I Consequences of the “Job Action”(December, 1996 and following)

24. On or about December 5, 1996 an incident transpired at the airport which generated ripple effects that were the subject of a significant amount of evidence before this panel.

25. The precipitating event is, in and of itself, of little direct significance for our purposes. It resulted from a decision of the GTAA administration which was apparently quite unpopular with a number of airport drivers including those in the employer’s bargaining unit. It further appears that something of a relatively brief “job action” took place at the airport which ultimately resulted in the GTAA imposing 8 demerit points on a bargaining unit member, Tom Bojcevski. An equal number of demerit points were also assessed against the car which Mr. Bojcevski had been driving, the Airline Limousine car bearing Airport Permit 115. Although neither of these assessments created any immediate jeopardy for Mr. Bojcevski, his lessor, or the company, further accumulated demerit points imposed by the GTAA could result in sanctions and loss of driving privileges for individual cars or drivers.

26. On the day following the “job action” but prior to the actual imposition of the demerit points in question, airport authorities had suspended and retained Mr. Bojcevski’s GTAA issued license. As a result of a telephone call Mr. Dagher believes Bojcevski made to the GTAA, those two gentlemen were, at the time, of the view that the suspension was related to the “job action”. However, Mr. Donaldson, the GTAA supervisor of Ground Transportation, testified that the license suspension was imposed as a result of airport authorities performing a random and routine check and discovering that Mr. Bojcevski’s City of Mississauga license had expired.

27. At some point on the following Monday, Mr. Bojcevski (he was with Mr. Dagher at the time) received a telephone call from Mr. Leimonis directing him to attend at Mr. Donaldson’s office to retrieve his license. (Mr. Leimonis was of the view that he had “told” Mr. Donaldson to return the license to Bojcevski.) Dagher and Bojcevski attended at Mr. Donaldson’s office and were able to secure the return of Bojcevski’s license. During the proceedings, however, two developments are of note.

28. First of all, for reasons that were never really explained beyond Mr. Donaldson’s assertion that “this was not a union matter”, the reception afforded Mr. Dagher was less than cordial. Indeed, initially Mr. Donaldson made his antipathy to Mr. Dagher’s very presence plain. Of course neither Mr. Donaldson nor the GTAA is a responding party in these matters and it may simply be that Mr. Donaldson’s immature response to Mr. Dagher is merely indicative of the impact and possible effect of the generally less than exemplary nature of the conduct so brazenly exhibited by many of the participants in these proceedings.

29. In any event and in what might be merely coincidental, Mr. Leimonis chose to call Mr. Donaldson at precisely the moment he was entertaining Bojcevski and Dagher. Mr. Leimonis became livid when he learned that Mr. Dagher was purporting to act in some sort of “representative” capacity on behalf of Bojcevski. Leimonis and Dagher had a brief but heated exchange over the telephone in which the former complained that Dagher’s conduct constituted an improper interference with the company’s business. Leimonis ordered Dagher to attend at the company office the following day. Dagher demurred and told Leimonis to “put it in writing”. The exchange was curt but intense. However, neither the evidence of Dagher nor Donaldson supports Leimonis’ contention that Dagher hung up on him.

30. Sometime after 6PM that day, Mr. Hewitt, the company’s controller, on Leimonis’ instruction, sent a fax to Dagher at the union office purporting to “confirm” the meeting set for 11AM the following day. Dagher’s claim to have not received or collected the fax until after the fact was not seriously disputed. In any event, when Dagher failed to appear at the office the next day, he was promptly taken “off-air” for a period of two days. It also appears that the company felt the need to broadcast the fact of Dagher’s suspension over the air so that all drivers would be aware of it. Dagher made no efforts to attend at the company office during this period but claims to have made unsuccessful attempts to contact Leimonis. The union filed a grievance challenging the suspension; the company denied it. The union chose not to advance the matter any further and, in particular, the grievance was not referred to arbitration. When the (first of) the instant complaint(s) was filed, however, the union pleaded the facts surrounding this disciplinary measure claiming that the company’s conduct had been unlawful.

31. The Board has had considerable difficulty in ascertaining the precise (either purported or real) reasons for the discipline imposed on Dagher. Employer counsel suggested the discipline was imposed as a result of Dagher’s failure to attend at the company office as directed. And while we did hear some evidence from Leimonis to support that contention, there were clearly other motivations at work.

32. On December 13, 1996, the company’s corporate counsel, Peter Zoldhelyi authored two separate letters each addressed to Dagher. In one he warned that disciplinary consequences would flow if Dagher were to again “interfere in the normal day-to-day business operations of Airline Limousine and its corporate affairs”. The transgression which appears to have given rise to this warning is the assertion that Dagher “contacted the GTAA to negotiate on behalf of one of Airline Limousine’s drivers for the return of the driver’s License to enter an airport property”. Whatever the accuracy of the assertion, it is no doubt a reference to Dagher’s visit to Donaldson’s office on behalf of Bojcevski.

33. A companion letter dated the same day asserted that Dagher had authorized or counseled an illegal strike on the day of the job action. It further concluded that Dagher’s failure to attend at the company office permitted the conclusion that the company’s allegations were accurate. Mr. Zoldhelyi went on to indicate that the company had consequently imposed a two day suspension and warned of termination and possible legal proceedings for damages and costs against Dagher personally in the event of another similar incident. We should note that, despite Mr. Leimonis’ assurance to the contrary, we heard no evidence to even suggest, let alone substantiate, that Dagher had counseled, authorized or participated in an unlawful strike.

34. The demerit points assessed by the GTAA on Bojcevski were formally imposed by letter dated December 17, 1996. On the previous day Dagher wrote to the President and CEO of the GTAA expressing various concerns about the manner in which the Bojcevski matter had been handled, including the less than hospitable welcome the union, through Dagher, had received from Mr. Donaldson. Dagher forwarded a copy of the letter to Leimonis. In reaction to this letter, Leimonis, in a letter headed “violations of the Labour Relations Act”, warned Dagher that any future “interference or conduct of this type…will result in disciplinary action…up to and including discharge”.

35. There was yet another “ripple” from the December 5th airport events. On January 2, 1997, Mr. Zoldhelyi wrote to Albert Roy Harland and Norman Fuller. Messrs. Harland and Fuller were the joint parties to a service agreement with the company in respect of the car Bojcevski had been driving on the day of the airport “job action”. Zoldhelyi advised them that the company held them strictly and solely responsible for the actions of their driver Bojcevski. The letter demanded an immediate “written Undertaking to comply and to cause your drivers to comply in full with all of the terms and conditions of the Service Agreement and all of the rules and regulations of the GTAA as issued from time to time”. Zoldhelyi then warned that another breach of the Service Agreement by the recipients or their drivers would require the delivery of a $300,000 bond failing which the Service Agreement would be terminated.

36. Mr. Harland was a bargaining unit member; Mr. Fuller was not. On January 28, 1997, Dagher wrote to Zoldhelyi in response requesting that if (at least in relation to Harland) the company wished to pursue the matter further it could do so through the trade union acting on Harland's behalf.

37. The letter was brief and to the point. It included the following observation:

Perhaps you are not aware of the law in this area, but as the Union is the legal representative for the bargaining unit members it is inappropriate for the employer, through its counsel or otherwise, to bargain or deal directly with such bargaining unit members.

38. Zoldhelyi’s written response followed the next day. In it he asserted that:

As far as I know, the Collective Bargaining Agreement has not overruled the Service Agreement which Mr. Harland and Mr. Fuller have executed with the Company. Accordingly we can still deal with the Service Agreement and its contents and I do not accept you as the legal representative for these parties since it is not strictly under the Labour Relations Act.

[emphasis added]

39. Mr. Zoldhelyi never professed detailed expertise in labour relations law. Indeed, it is clear that the company had retained the separate services of corporate (Mr. Zoldhelyi) and labour relations counsel. All the same one might have anticipated that Mr. Dagher’s suggestion of a lack of legal knowledge of the area might have wounded even the most confident of legal egos. Mr. Zoldhelyi’s response, however, was nothing short of breathtaking. In the final paragraph of his letter, in a foray, which can hardly have been conceived to have had any productive purpose, he advised Dagher that “I do not need lectures in law from someone who has a degree in cab driving; save your lectures for your underlings”.

40. Two days later on January 31, 1997, Zoldhelyi again wrote to Harland and Fuller repeating the company’s earlier demands. Not only did Zoldhelyi fail to demonstrate the courtesy of copying the union which had expressed an interest in the matter, he went further. In the letter he asserted:

We suggest that you respond to this matter personally as our client in this situation will not accept the union as your representative.

41. The union referred the matter to its counsel who engaged in an exchange of correspondence with Zoldhelyi. The level of invective and hostility, which characterized that exchange, was certainly impressive. However, it does appear that the employer experienced some change of heart. On February 13, 1997, Zoldhelyi wrote that:

… If the Union wishes to represent Mr. Harland as his agent, my client advises it has no objection.

42. And while counsel did subsequently continue to exchange their views on the matter, nothing further of note transpired for our purposes (save, of course, that these events formed part of the particulars filed by the union in March, 1997).

43. In reflecting on these events, the Board must observe that, viewed in isolation, their individual significance appears relatively marginal. Apart from Dagher’s suspension there is frankly little in the way of concrete measurable consequences flowing from the employer’s conduct. And even with respect to Dagher’s suspension, the union has provided little in the way of any persuasive explanation for its failure to advance that matter along its presumptive route to arbitration. Having said that, however, and having considered these events and the evidence as a whole, the Board is persuaded that they provide an example of employer conduct which demonstrates a clear antipathy to the trade union and a desire to avoid (at least for as long as such avoidance can be maintained) any obligations to recognize the union as a legal representative of bargaining unit employees. And neither have we failed to appreciate the significance of the employer taking the opportunity to publicly humiliate the union president by announcing the economic sanctions being imposed on him over the air for all drivers to hear. No reasonable explanation was ever provided for so doing.

44. In this context and while the question of remedy remains problematic and to be revisited, the Board is satisfied, in the context of the events just described, that the employer acted, at least in part, on improper anti-union motives thereby contravening sections 70 and 72 of the Act.

II Termination of Jacques Ohannessian’s lease

45. Jacques Ohannessian has worked (though not necessarily on a continuous full-time basis) with the company since 1975. At the material time he was also vice-president of the union. Helen Ananiadis was party to a service agreement with the company. Although Mrs. Ananiadis was the formal party to that service agreement, it appears that her son, Dennis Ananiadis, performed most of the business dealings conducted in relation to the service agreement on her behalf. Mr. Ohannessian, in turn, was the lessee to whom the Ananiadis service contract had been leased. We should note that the only direct evidence placed before us regarding the nature of and practice under the terms of the agreement between Ohannessian and Ananiadis or other dealings between them came from Mr. Ohannessian. The impressive number of witnesses produced before the Board did not include any representative of the Ananiadis family, a group who would clearly have been in a position to shed significant light on aspects of the events we are about to describe. Insofar as the dealings between Ohannessian and Ananiadis are concerned there are some, though few, discrepancies between the evidence of the company (on this point chiefly through Mr. Leimonis) and that of Mr. Ohannessian. To the limited extent it has been necessary to reconcile those conflicts, we have preferred the evidence of Mr. Ohannessian.

46. The terms of the agreement between Ohannessian and Ananiadis were never reduced to writing. It appears, however, that these kind of oral arrangements are not unusual in the industry. The ongoing arrangement was relatively simple – essentially Mr. Ohannessian paid his monthly leasing fee to Ananiadis and then basically stood in Ananiadis’ shoes vis a vis the business operation of the service agreement. He would pay Ananiadis’ brokerage fees to the company and would receive the benefit of the service agreement (such as the plate, stickers, permits, driving privileges and the like) from the company. Ohannessian supplied the car and drivers (including himself) to satisfy Ananiadis’ obligations under the service agreement. Thus, as a practical matter, and apart from collecting what might have been due under the terms of the lease agreement, Ananiadis was virtually entirely absent from the day to day operations of car #31 operated by Ohannessian.

47. At some point in 1996 Ohannessian purchased a new vehicle. Prior to making that significant capital investment and in view of the fact that there had apparently been some contemplation of Ananiadis selling the service agreement, Ohannessian met with Ananiadis to confirm his intentions. Ananiadis assured Ohannessian that he had no intention of disposing of the service agreement and that Ohannessian could therefore go ahead and finalize the purchase of the new vehicle. Mr. Ohannessian’s understanding, and there is little before us to contradict the basis for such, was that the arrangement with Ananiadis would continue for the 5 year period the new vehicle could be expected to operate. But it was not to be.

48. Sometime in February of 1997, a series of exchanges began between Ohannessian and Ananiadis which would culminate in the termination of their ongoing business relationship. It began with a telephone conversation in which Ananiadis inquired as to the identity of one of the car #31 drivers. When advised that it was Sam Dagher (someone who has been driving with the company for some 20 years and is also the uncle of Emile, the union president), Ananiadis indicated that he did not want Sam driving the car. In a subsequent telephone conversation Ananiadis repeated his preference reminding Ohannessian that Ananiadis “owned” the plate and was the “boss”. No reason was proffered for Ananiadis’ expressed preference.

49. Not long after those 2 telephone conversations, Mr. Ohannessian called Mr. Leimonis and explained that Ananiadis had indicated his desire to “fire” Sam Dagher. Ohannessian protested that this was unfair and Leimonis said to leave the matter with him and that he would discuss it further with Ananiadis.

50. Approximately one week later Ananiadis called and inquired once again as to whether Ohannessian had “got rid” of Sam Dagher yet. Upon discovering that Dagher was still driving, Ananiadis let fly a verbal barrage in which Ohannessian was denounced as a “fucking SOB union man”. Before hanging up Ananiadis told him he would be “pulling the plate off him” at the end of March and bemoaned the fact that he “should have done this a long time ago” when the owners were “after me to get rid of this fucking union man”.

51. The following day Mr. Ohannessian (along with Mr. Kirkwood – who, although he testified about other matters, was asked no questions regarding these events by anyone) met briefly with Mr. Leimonis who now indicated that he would not get involved in this dispute and that Ananiadis wanted to directly use his driving rights under the service agreement rather than lease them to Ohannessian.

52. At around this point, Mr. Ohannessian began to seek the more formal assistance of his union. Union counsel wrote to both Mr. Leimonis and Mr. Ananiadis on March 25, 1997. The letter to the company indicated that a dispute had arisen and that Ananiadis was threatening to remove Ohannessian’s plate unless the latter terminated one of his drivers despite there being no just cause to do so. The union insisted that the employer’s refusal to intervene was unwarranted and urged that the company had both a right and an obligation to intervene.

53. In response to this letter, company counsel asserted that the dispute between Ohannessian and Ananiadis was a “simple civil/commercial dispute between two parties governed by their own contractual arrangements” to which the employer was not a party and in which it had no right to interfere. The union was asked to provide some basis for the company’s asserted obligation to intervene. Mr. Ohannessian was encouraged to seek his own legal redress against Ananiadis.

54. While there does not appear to have been any formal written response to this letter from the union, it is clear that discussions continued between union officials and the company regarding Mr. Ohannessian’s difficulties. In particular, as April 1st approached, the company rebuffed numerous efforts on the part of Mr. Ohannessian, or the union on his behalf, to tender various periodic monetary payments due to the company under the terms of the service agreement (payments which, it will be recalled, Mr. Ohannessian, like other lessees, had routinely made to the company (at least technically) on behalf of the holder of the service agreement). Indeed, on April 1st, Ohannessian’s driver Dagher was unable to secure the annual sticker which is effective on that date and is required to permit lawful access to the airport. The company opted to provide the sticker to the broker instead of to Ohannessian or Dagher. Mr. Dagher was placed “off-air” and the following morning was summoned to the company office, advised he could not operate Ohannessian’s car under Ananiadis’ service agreement and was instructed to return the plate authorizing the operation of a car under that service agreement.

55. It also appears that, as part of this dispute around who was going to drive which car under the Ananiadis service agreement, a report was made to police by Ananiadis alleging that the plate which had been affixed to Ohannessian’s car had been stolen (or at least converted). Ultimately, neither Ohannessian nor Dagher had any continuing participation in the operation of a car under the Ananiadis service agreement.

56. But while other arrangements may have been ultimately made to permit Ohannessian and Dagher to continue driving, we must still assess the propriety of the company's conduct, involvement or lack thereof in these particular events in order to determine whether any improper motive tainted the company’s role. In that regard, we have measured and assessed the company’s stated position at the time against its actual conduct and are left with some serious lingering doubts about the company’s motives.

57. There is another dimension to these events and the evidence before the Board which warrants some closer scrutiny. It can perhaps best be described by considering the evidence of Mr. Zoldhelyi in relation to these events and the significant contrast between his evidence in chief and his cross-examination.

58. Mr. Zoldhelyi’s evidence in chief was concise, straightforward and to the point. First and foremost, he testified that he had made his view clear to Mr. Leimonis at the time. The Ohannessian-Ananiadis dispute was to be viewed as a matter between them in which the company should simply not interfere or otherwise be involved. This view was expressed quite forcefully in a letter dated April 1, 1997 addressed to Mr. Leimonis. Of particular interest is the following observation:

With respect to the request by the Broker [Ananiadis] to take the [Ohannessian] car off the air, I advised you in my telephone conversation that it is not appropriate to accept the Broker’s request as it appears to be strictly for purposes of forcing the Lessee [Ohannessian and his driver(s)] off the air, and for no proper or acceptable commercial reason under the Service Agreement.

[emphasis added]

Clearly this was legal advice which the company chose not to follow.

59. The position initially articulated by Zoldhelyi was reflected in the very first exhibit filed in these proceedings - a letter dated April 3, 1997 from Mr. Zoldhelyi to Helen Ananiadis. It reads as follows:

We are solicitors for Airline. Our client has delivered to us a copy of your letter dated April 3rd, 1997 purporting to instruct Airline to "retrieve and deliver to the Broker Airline Plate No.

131 as of April 1st, 1997".

You entered into a Service Agreement (the "Contract") to operate a limousine in accordance with the Contract under Airline's Plate No. 131 (the "Plate").

Pursuant to the Contract, Airline delivered to you the Transport Canada Plate, the Province of Ontario Permit, the two-way radio, and the "Airline Limousine" sign ("Airline's property") for your exclusive use during the term of the Contract. Pursuant to the Contract you registered your vehicle under the name of Airline, for licensing purposes while retaining beneficial ownership of the vehicle.

Although you made arrangements for a third party to operate a vehicle and gave the third party Airline's property, you continued throughout to be solely responsible and liable under the Contract to Airline, and because you had the exclusive right to the use of Airline's property, you had the responsibility for the care and control of Airline's property at all times. Accordingly it is your responsibility to look after, to retrieve, to be in possession of and/or be in control of Airline's property that was given to you for your exclusive use in accordance with the terms of the Contract. Airline has no responsibility to retrieve any of the aforementioned property on your behalf; this is strictly and clearly your responsibility under the Contract! Therefore we strongly suggest that you look after these matters forthwith and arrange for a properly and validly licensed vehicle to operate pursuant to the Contract under Plate No. 131.

Under the terms of the Contract there are very specific requirements for you to maintain on the road and - in service a validly licensed vehicle to provide the services under the Contract for which you are responsible. Our client hereby puts you on notice that if you fail to place and maintain such vehicle on the road in compliance with requirements of the Contract our client will take disciplinary proceedings against you.

Further you are put on notice that you are not permitted to transport passengers on behalf of Airline with the 1997 Lincoln, Plate No. 670 ZYL as long as the vehicle does not have the proper Plate or permit attached to it and while it is not properly and formally insured in accordance with the requirements of Airline.

60. The second exhibit filed was a two page document – each page signed by Helen Ananiadis. One page is a memo to the company stating:

Pursuant to the Service Agreement … made by Helen Ananiadis (the “Broker”) and Airline, the Broker is instructing Airline to retrieve and deliver to the Broker Airline Plate No. 131 as of April 1, 1997.

61. The other page is a more formal document styled DIRECTION AND AUTHORIZATION which, among other things, advises the company that the broker will be “taking back the plate” [then in Ohannessian’s possession] and will have a new vehicle operated by the broker’s sons (to replace both Ohannessian and his vehicle). The document also effectively purports, among other things, to direct the company not to deliver any “renewal sticker or permit required for the Plate” to anyone but the broker and to “remove the Plate, any permit and other equipment…from any other person [i.e. Ohannessian] …and deliver same to the Broker, forthwith.”

62. It should be noted that that although Mr. Zoldhelyi’s letter referred to Mrs. Ananiadis’ letter dated April 3, 1997, both of the above documents were dated April 2, 1997 and no letter dated April 3, 1997 from Mrs. Ananiadis was filed in evidence. Perhaps more significant, however, is the curious fact that the formal “direction” to the company from Ananiadis arrived after Airline had already begun to implement its terms. For whether or not Mr. Zoldhelyi was aware of it at the time, we have already described the company’s refusal to accept, from Ohannessian, the periodic payments due under the service agreement as well as its refusal to issue a renewal sticker for Ohannessian’s vehicle and its decision to take Sam Dagher “off-air”. All of those events preceded Mr. Zoldhelyi’s April 3rd response.

63. In any event, Mr. Zoldhelyi’s response clearly asserts that it is the broker and not the company which must be responsible to take the necessary steps to retrieve the Plate.

64. On April 8, 1997 Mr. Zoldhelyi received a facsimile communication from Ananiadis’ counsel who requested the return of “all of the equipment and expired mot plate in the possession of Jacques Ohannessian”. Attached to the request was another “Direction and Authorization” containing the very same wording as the one described earlier. This one, however, is dated April 7, 1997 and contains a different (or at least a fresh) signature over the name of Helen Ananiadis.

65. We have already indicated that Sam Dagher was held off the air (consistent with Ananiadis’ request) approximately a week before Zoldhelyi received this Direction and Authorization. Ultimately the GTAA, on the joint request of the company and Ananiadis, issued a replacement plate.

66. But if Mr. Zoldhelyi’s evidence (certainly in chief) betrays some conflict between his advice and Mr. Leimonis’ inclinations and ultimate decisions, the picture which emerged in cross-examination displays a much greater degree of company involvement and support for the Ananiadis position in a dispute the company purported to characterize as a purely commercial one in which it was neither involved nor particularly interested.

67. During Mr. Zoldhelyi’s cross-examination, a number of documents were produced which are difficult to reconcile with any view of the company as some kind of passive observer in these events. In particular, it is clear that Mr. Zoldhelyi had in his possession and was actively involved in the drafting of the document which ultimately came to be signed (twice) by Ananiadis as a Direction and Authorization. Indeed, produced out of Mr. Zoldhelyi’s files were at least two predecessor (each marginally different) versions of the direction.

68. Mr. Leimonis, when called upon to explain his role and decision making, did not dispute that, at least in relation to the decision to hold Sam Dagher “off-air” he opted, as he put it, to take Ananiadis’ rather than Zoldhelyi’s instructions. His explanation for that choice or for any of the choices the company made was never more elaborate, sophisticated or enlightening than his comment that “I just did, in my opinion the broker not the driver is the person responsible to the company”.

Section 72(a) of the Act provides:

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

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

69. Further, pursuant to section 96(5) the burden of proof that an employer did not act contrary to this section falls to that employer.

70. The company here has failed to meet that onus.

71. There can be no doubt that the actions taken (or not taken) by the company had employment related consequences for both Ohannessian and Sam Dagher as members of the bargaining unit. Mr. Ohannessian’s direct and active involvement in the union is apparent. Mr. (Sam) Dagher’s involvement in the union may have been less so but there was uncontradicted evidence that Mr. Ananiadis tied the reasons for “getting rid” of Dagher to his union involvement and attributed those sentiments directly to the company.

72. There might, at least theoretically, have been innocent, or at least lawful, explanations for the company’s decision to back Ananiadis notwithstanding the resulting deleterious impact on Ohannessian and Dagher. Having weighed and considered all of the evidence we simply do not know what they might have been. When we consider the differences between the company’s purported neutrality and its actual involvement in shoring up the Ananiadis cause, the fact that Mr. Leimonis’ decisions appear to have been in direct contradiction with his advice from Zoldhelyi, we are simply left to wonder whether the latter’s characterization of the lack of proper or acceptable purpose associated with the treatment of Dagher is not of wider application to the company’s motives. Given the general lack of credibility associated with Leimonis’ evidence and his failure to advance any rational explanation for the company’s choices, the company has simply failed to discharge the onus it bears in this case and we must therefore conclude that its decisions in relation to Ohannessian and Dagher were tainted by improper motives contrary to section 72 of the Act.

II Discipline under the collective agreement

73. The employer’s approach to the maintenance of discipline has undoubtedly generated difficulties for the trade union. It is less than clear, however, that these were difficulties that could not have been adequately and, indeed, more expeditiously dealt with by the trade union through the grievance and arbitration procedures, a route the union appears to have studiously and inexplicably avoided.

74. It is critical to understand the function and importance of discipline in the context of the nature of the employer’s enterprise. We heard evidence regarding the imposition of discipline in varying circumstances. Infractions such as violations of dress codes or failure to arrive on time at a scheduled call obviously go to concerns the employer may have about its public perception. Such infractions might well impact on the inclination of customers to use (or reuse) the company’s services. Other infractions such as drivers directly or indirectly appropriating passengers who were or ought to have been assigned to another driver may not have an immediate or visible impact on the employer’s business volumes, but will undoubtedly impact on the integrity of the employer’s dispatching system. The distribution of work to drivers through the company’s dispatch system is a primary locus of the employment relationship. There are rules and systems which regulate an orderly and fair distribution of that work. They depend largely on drivers’ willingness and ability to honestly report their status and location on an ongoing basis. Misrepresentations by individual drivers can result in the receipt of more fares or more favourable fares. Such conduct, apart from being in violation of the rules, works unfairness on fellow drivers who may consequently be deprived of their rightful or full opportunities.

75. In that kind of context it is not difficult to imagine circumstances where a dedicated trade union might, in appropriate circumstances, become as exorcised about the employer’s failure to discipline as it might about the imposition of discipline in other circumstances.

76. But if this is a difficult or at least unusual setting (certainly in relation to more conventional industrial ones), it appears that the task the parties faced was perhaps not made the easier by the unconventional collective agreement provisions initially in place. It is perhaps useful to consider, in its entirety, Article 8 of the agreement which provided as follows:

8.1 A Union representative must be present at all disciplinary meetings.

8.2 No discipline which is not in written form and presented to the employee and the Union shall form any part of an employee’s employment record.

8.3 A discipline notice shall be signed by the driver to acknowledge receipt and this shall not constitute agreement with said notice.

8.4 All discipline shall be removed from a dependent contractor’s record after thirty-six (36) months provided the employee has remained discipline free for the thirty-six (36) month period following the implementation of discipline.

8.5 Dependent contractors shall not be suspended from duty until the grievance procedure and arbitration process has been completed unless it can be shown that the continued presence of the dependent contractors may endanger the physical welfare of other dependent contractors or of the Company.

8.6 Dependent contractors shall receive a written warning for first time, minor disciplinary infractions.

8.7 A copy of any written complaints received from patrons, other dependent contractors or anyone else about a dependent contractor’s work performance shall be immediately forwarded to the Union. Where the complaint has not been submitted in writing, the Company shall prepare a written summary of the complaint and forward it to the Union in the same fashion. No discipline shall flow from any such complaint unless this article has been complied with.

[Italics in original indicate this was a provision determined by interest arbitration]

77. It was clear to the parties early in the term of the collective agreement that there were problems regarding discipline issues both generally and in particular relation to the unique provisions of Article 8.5. Meetings were held in July 1996 which involved, among others, Messrs. Leimonis, Dagher and Randy Graham, the union’s International Vice-President. The continuing lack of mutual understanding between these parties is reflected in correspondence which followed these meetings. In two written communications forwarded to both Dagher and Graham, Mr. Leimonis made the following observations:

It is my understanding that the A.T.U., the Local #1703 and the Company are in agreement that the Company Rules & Regulations must be enforced.

The Company has your full consent, via your handshake, to enforce the Company Rules & Regulations without fear of being grieved, when the offense is legitamate [sic] and the facts are clear.

Finally, the Company, the Local #1703 and the A.T.U. will work together to amend Clause 8.5 for the benefit of all concerned.

[and in a subsequent correspondence]

As we both agreed, any driver who is caught “booking-off” will be penalized with 5 days 10-7 [i.e. off the dispatching system] immediately. This action will not be subject to any previous discussion or grievance action. This penalty is applicable to first time offenders.

Should the same driver be caught a second time, a meeting will be arranged between this driver, management and a union representative. This meeting will determine what course of action will be taken.

78. But if Mr. Leimonis was, even remotely, of the view that he had succeeded in persuading the union to move from a system where, under Article 8.5, no suspension could be imposed before the grievance and arbitration procedure had been completed to one where the employer could impose discipline (in some cases up to a five day suspension) without being subject to any grievances at all, such a view ought not to have survived Mr. Graham’s response. His letter dated July 31, 1996 addressed to Mr. Leimonis included the following:

At the meeting we agreed that the rules and regulations are to be enforced. We agreed that when there is no dispute to the violation or to the penalty imposed, a grievance would not be filed by the union. We indicated to you that it was not the intention of the union to pursue grievances that do not have merit. We also agreed at that meeting, it is in both parties best interest that the union be present at all meetings that might lead to discipline so all information would be shared and speed up the resolve to the problem. We are hopeful, in most cases it would be at that meeting.

79. Mr. Graham went on to confirm the parties’ agreement to review Article 8.5. Indeed, the letter included proposed language to replace that article. In September 1996 the parties executed a written agreement to replace Article 8.5 of the collective agreement with (subject to some minor variations to paragraph (c) not relevant for our current purposes) the very language proposed by Mr. Graham. As a consequence and effective September 8, 1996, Article 8.5 of the collective agreement read as follows:

8.5 (a) Dependent contractors will not be suspended from duty for more than two (2) days until the grievance procedure and arbitration process have been completed unless it can be shown that the continued presence of the dependent contractor may endanger the physical welfare of other dependent contractors of the company, the public, or unless the union has indicated it waives this clause.

(b) Notwithstanding Paragraph (a) above, however, nothing in this article detracts from the right to pursue a grievance on behalf of a dependent contractor suspended i.e.: for suspensions of two (2) days or less or suspensions of more than two (2) days.

(c) Where the union is successful on a grievance during the grievance procedure or at arbitration alleging unjust suspension or termination, it is agreed that the appropriate remedy for damages shall be seventy-five dollars ($75.00) maximum per day of the suspension issued by the company or in the case of termination. Seventy-five dollars ($75.00) maximum per work day lost subsequent to the termination.

(d) It is agreed that any discipline will only be administered by the Manager or a Company official of higher rank (i.e. President), not by a dispatcher. No discipline will be administered prior to the day following an alleged incident with a designated representative of the union in attendance.

80. But if the exchange of correspondence reveals some divergences in the parties’ views of how disciplinary matters were to be handled, there were also significant differences and outright contradictions in the evidence of the employer witnesses. In particular, it is simply impossible to square aspects of the testimony of Mr. Leimonis with that of Mr. Gomez. During the relevant period, Mr. Gomez was the company’s operations manager (a position he had held for some 11 years) and had the primary responsibility for the administration of discipline. On certain important aspects of the company’s approach to discipline, his evidence and that of Mr. Leimonis were like day and night.

81. Mr. Leimonis assured us that drivers would always be told to bring a trade union representative with them when called to the office in relation to a disciplinary matter. Managers had been advised of that procedure and he would have specifically instructed Mr. Gomez that anyone coming to a meeting should be advised that they have (allegedly) committed an offence and that they should bring trade union representation. A copy of the collective agreement was provided to managers including Mr. Gomez. Mr. Leimonis also expressed the view that the union was provided with a letter from the company each time an employee was summoned to attend a disciplinary meeting.

82. Mr. Gomez painted a very different picture. First of all, his manifest and virtually complete ignorance of the provisions of the collective agreement (either before or after the amendment of article 8.5) was truly impressive. He essentially asserted that the company rule book which governed matters prior to the collective agreement continued to furnish the guiding disciplinary process and that after the union came in he simply continued to administer discipline in the same way he had over the last 11 years. That, he said, was consistent with the instructions Leimonis had given him. He was never instructed to provide infraction notices to the union. He would never forward a written customer complaint to the union; the union could only review such a complaint if it appeared at the disciplinary meeting. He had not been instructed to give anything to the union. He was unaware of the former prohibition on suspensions under 8.5 nor was he aware that the parties had amended its terms in September of 1996 – no one from the company ever discussed that change with him or how he should be handling disciplinary matters.

83. The Board has already had occasion to comment adversely on the general reliability of Mr. Leimonis’ evidence. In that regard, the contest between him and Mr. Gomez is perhaps a close one. To the extent that their evidence conflicts around matters related to any systematic approaches to discipline, we find Mr. Gomez’s evidence to be more reliable. But we note that however one might reconcile the conflicting evidence of Leimonis and Gomez on these points, what emerges is the picture of an employer determined to avoid the trade union, the existence of a collective agreement and its provisions. Airline was prepared to forge ahead with a unilateral approach to the discipline process which was exceedingly difficult to rationalize with the provisions of the agreement. And the union did little, and certainly little of any positive effect, to change that.

84. Article 8.1 of the collective agreement makes trade union representation at disciplinary meetings mandatory. Arguably (and even accepting Mr. Leimonis’ evidence), this requirement is not satisfied by the company simply telling employees to bring union representation to disciplinary meetings. Article 8.2 prohibits discipline forming part of an employee’s record unless it is in writing and presented to the union. There is little in the way of viva voce or documentary evidence to suggest that the employer incorporated this requirement into its disciplinary process. Article 8.4 provides for the removal of discipline from an employee’s file after 36 months; Mr. Gomez confirmed that he would consider discipline more than 3 years old in determining penalty. Article 8.7 requires written complaints (or a written summary prepared by the company in the case of other complaints) from patrons to be immediately forwarded to the union. It is clear that the former was never done and neither is there any evidence to suggest that company summaries were ever provided.

85. But if the employer’s general approach to disciplinary matters was obstreperous, calculated to alienate the trade union and, indeed, unlawful, the union’s general response to this state of affairs can only charitably be described as mysterious. For it was not disputed that, during the relevant period (which spans virtually the entire term of the collective agreement), not a single grievance relating to either the process or substance of discipline was ever advanced to arbitration.

86. A brief examination of portions of the evidence of Dagher and of Maurice Khoury, who was a member of the union executive, is instructive. Mr. Dagher was quick to advance the conclusion that the company imposed uneven discipline in accordance with a deliberate scheme to persuade employees that they would be better off without a union. But even if that conclusion were correct (and the Board has been unable to adopt it), we were simply provided with no reasonable explanation for the union’s utter lack of any real or potentially effective measures to combat it. Mr. Dagher’s claim that all of the union’s efforts were futile belies a distorted and ineffective view of the nature and role of a trade union in such circumstances. He protested that none of the grievances the union filed were successful. None were settled and, in his words, most were left at the point where the employer would say “this is it, we deny the grievance, if you don’t like it go to arbitration”. No explanation was provided for the union’s apparent consistent reticence to take the further step. It was as if somehow in Mr. Dagher’s mind, the mere fact that grievances moved to the stage of possible arbitration demonstrated the employer’s lack of bona fides. That conclusion is simply not evident to the Board. Further, Mr. Dagher essentially acknowledged that the union abandoned many grievances which it was now seeking to revive in the context of this complaint before the Board. He felt that a review of these grievances would now provide the Board with a view of how the employer conducted itself in relation to the union. He even further speculated that taking those grievances to arbitration might have aggravated the situation. Frankly, and although the Board is less than impressed with the employer’s general approach to disciplinary matters, we view this state of affairs as at least equally instructive as to the manner in which the union conducted itself.

87. Neither does it appear that this distorted perception of the collective bargaining process was unique to Mr. Dagher. For Mr. Khoury made similar assertions in his evidence. For example, on the subject of alleged uneven imposition of discipline, Mr. Khoury observed that typically the union would grieve a matter relating to a member’s infraction and the company would not respond to it. He asserted that the parties had yet to solve a single grievance or to come to a satisfactory settlement. While, in view of some of the other evidence we heard, Mr. Khoury’s observations (here and in other parts of his evidence) may be somewhat hyperbolic, the curious mind set that Mr. Dagher may have imprinted on the union is evident. Once again the parties’ inability to satisfactorily resolve grievances is pointed to as some kind of irrefutable evidence of the employer’s ill motives. Whatever the truth may be about those motives, a union which opts to forego the opportunity to vindicate its legal position through the arbitration process should not presume that it has thereby conclusively established the villainy of the employer.

88. There were other aspects of Mr. Dagher’s testimony which display a curious approach to collective bargaining, the collective agreement and its administration. For example (in what might be seen to rival some of Mr. Leimonis’s perceptions about some of the parties’ informal agreements), Mr. Dagher thought that there was an agreement to impose discipline in particular cases without any consideration of a driver’s disciplinary record. Such a view is, of course, inconsistent with basic principles of progressive discipline and with the specific provisions of the collective agreement (which suggest, at least inferentially, that an employee’s record –at least within 3 years of any incident- is a relevant consideration). Similarly, Mr. Dagher confessed to no familiarity with the “obey now grieve later” principle and also advocated a curious interpretation of the new Article 8.5 seemingly suggesting that it sets a 2 day suspension as the absolute maximum possible discipline under the agreement.

89. With Messrs. Leimonis and Dagher as the chief daily representatives of the parties, it is not the least bit surprising that the relationship between them would be irrevocably fraught with difficulties.

90. The union pleaded instances of what it asserted were examples of improper or uneven discipline imposed on bargaining unit members known or believed by the employer to be union supporters. Some 15 specific instances were pointed to as examples where excessive or no discipline at all was selectively imposed. The incidents occurred at various times during the course of 1996 and 1997. The comprehensiveness of the evidence we heard in relation to these varied dramatically. In some cases the principal affected persons did not testify, in other cases the company provided coherent explanations for the discipline and quantum thereof imposed in each case having regard to the offence and disciplinary record in question.

91. The Board will not set out or review the details of each and every one of these incidents. While we are satisfied that the ultimate disposition of these matters may well have been different had any of them been referred to arbitration, we are not prepared, in the manner and context in which these incidents are put before us, to review each and every one with a view to whether or not discipline was warranted and, if so, whether the penalty imposed was just and reasonable in all the circumstances. That would have been the inquiry had the union been sufficiently concerned to advance any one of those cases to arbitration. These proceedings are not the opportunity for the union to rectify its previous decisions in that regard. Further, had we been persuaded that these incidents, viewed from the perspective of the merits or motives associated with the actual discipline imposed, either singly or in some sort of cumulative fashion, established a clear and obvious pattern of anti-union conduct on the part of the employer, we would have had no hesitation to intervene. We were not persuaded, however, that there was any substantial nexus between the imposition of discipline and the exercise of protected rights under the Act in any of the individual cases. Notwithstanding the reverse onus in such cases, the employer’s presentation/explanation of why discipline was imposed and how quantum was determined was (despite what an arbitrator may have ruled in individual cases) generally reasonable and sufficient to discharge its onus of explanation.

92. This is not to say that the employer’s general approach to discipline and, in particular, to the disciplinary processes set out in the collective agreement is not, as we have already indicated, problematic. Indeed, we are satisfied that the employer’s approach, at least in respect of its new procedural obligations with respect to the administration of discipline under the collective agreement, was deliberately calculated to evade its contractual obligations and to render the union as powerless as possible in its legitimate efforts to police disciplinary matters under the agreement. We are also satisfied that the purpose for this approach was both to weaken the effectiveness of the union and to foster the view among its members that the union was an ineffective and unnecessary organization. And while the union itself may have made significant contributions to that end, the conduct of the employer was deliberately intended to and did interfere with the administration of the trade union and its representation of employees. Thus, while we are not prepared to review the disciplinary penalties imposed in individual cases, we have no hesitation in finding the employer’s approach to have been unlawful.

IV Various other portions of the first Section 96 complaint

93. There were a number of issues and factual themes which occupied much of the time devoted to the evidence placed before the panel. Yet, despite the time and energy the parties chose (and the panel consequently was required) to invest in these issues, they can be readily disposed of.

94. Before doing so, however, the panel must comment on some of the comprehensive submissions and accompanying authorities presented on behalf of the union. In particular, union counsel urged the Board to accept and rely on much of the hearsay evidence which was placed before us. In urging that result we were referred to numerous authorities including two decisions of the Supreme Court of Canada in criminal matters: R. v Khan (1990), 1990 CanLII 77 (SCC), 59 C.C.C. (3d) 92 and R. v Smith (1992), 1992 CanLII 79 (SCC), 75 C.C.C. (3d) 257. It was suggested that so long as there was good reason for the union’s failure to call first hand evidence, so long as the hearsay evidence relied upon demonstrated sufficient coherence and internal consistency and disclosed a pattern of occurrences which makes it more likely to be persuasive, the Board should not hesitate to rely upon it, even perhaps to the extent of allowing it to form the basis of factual conclusions on key issues.

95. In this context, the union reminded us of the perhaps unanswerable proposition that successful employer intimidation of employees will, by definition, be difficult to prove. It simply cannot therefore follow, however, that the strongest case a union may make to establish such intimidation is the one where it fails to call any direct evidence to establish the intimidation, arguing that its very failure thereby conclusively establishes the success of the employer’s campaign.

96. This Board has a long history of sensitivity to the demands and pressures of the workplace vis a vis the exercise and protection of statutorily guaranteed rights. As the Board observed some four decades ago in Piggott Motors, 63 CLLC 16,264:

In view of the responsive nature of his relationship with his employer and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act.

97. Neither has this Board ever been reluctant, in the appropriate circumstances, to combine its general expertise regarding workplace realities with even the limited evidence that may be before it to infer improper motives and find unlawful or inappropriate conduct on the part of employers.

98. As a general proposition, however, we have found ourselves unable to do so in the present case. First of all, and, again viewing the evidentiary landscape in its broadest outlines, the number of instances in which the union has provided direct evidence to substantiate its many allegations pales dramatically when contrasted with the number of instances where we are asked to make inferences and even draw conclusions on the basis of the asserted unwillingness or fear of employees to come forward to provide relevant direct first hand evidence. And while it is true that a successful campaign of employer interference or intimidation might provide some explanation for that failure, the Board would be more inclined to repose its trust in the hearsay evidence provided by the union witnesses if we were more confident in the general reliability and probity of that evidence. We have already commented on the credibility concerns we have had with the evidence of most of the witnesses who testified in these proceedings. Unfortunately, and again as a general observation, the union witnesses were simply too quick to step forward to volunteer their legal theories and conclusions about the employer’s conduct and motives even in the absence of direct evidence to substantiate such theories and conclusions. We have not found that evidence to be helpful.

99. In that context we turn our attention to what has emerged, at least after our review of all of the evidence, as a number of issues which can most generously be described as secondary.

a. The Termination Vote

100. All three parties called considerable evidence concerning events that took place on the day of the representation vote held in Board File 2185-97-R. There were conflicts in the evidence. There were different versions of the times of arrival or actual presence of various persons at the hotel in which the representation vote was held over the course of the day. There were arguments about the substance of a conversation which took place between Mr. Peever (one of the applicants in the termination file) and Mr. Leimonis on the day of the vote. During the course of the vote, the employer arranged to have a rollodex, which included employee names and photographs, to be delivered to its representative at the poll. There were issues raised about the manner in and purpose for which that delivery was effected.

101. At the end of the day, however, even the argument advanced by the union implicitly recognizes the marginal significance, if any, these events can have in the Board’s ultimate determination. It was not seriously suggested that any of the employer’s actions, principally through Mr. Leimonis, on the day of the vote amounted to unlawful conduct. Indeed, it is difficult to see how the employer’s mere presence at the hotel or even his conversation with a termination applicant are in and of themselves unlawful. Neither are we prepared to accept the invitation to conclude that the delivery and use of the rollodex file at the polling location was either intended to or would reasonably be seen to have the effect of unlawfully intimidating employees or otherwise interfering with the free exercise of their franchise. It is less than apparent to us that any nefarious motives are at play where, in a large bargaining unit of employees many of whom would not otherwise be recognized by the employer’s agent at the vote, use is made of such an aid to verify the identity and eligibility of prospective voters.

102. Ultimately, it was perhaps in aid of assessing the credibility of witnesses that the events on the day of the vote were pointed to. Thus, while we may have little ultimate interest in resolving such relatively insignificant evidentiary conflicts such as determining with any precision the times people arrived or the length of their stay at the hotel or where a vehicle may have been parked, it is suggested that the exercise may be of some benefit or aid in our ultimate assessment of various witnesses’ credibility. As it happens, however, and as previously indicated, the various witnesses involved have already, quite apart from any evidence regarding the events on the day of the vote, provided us with a considerable basis upon which to assess their credibility. We have therefore not found it necessary to make any further determinations regarding the collateral events associated with the day of the vote and need not consider those events any further.

b. Insurance Coverage

103. Insurance coverage was a matter which was the subject of both evidence and submissions by the parties. Obviously, proper insurance coverage is a matter of some concern to all involved. It is clearly of concern to the company since customers (i.e. potential plaintiffs), by and large, perceive themselves as employing the company’s services (rather than those of a dependent contractor). In addition, while the holder of the service agreement or even the lessee may be the beneficial owner of the vehicle used to transport customers, it appears, for reasons that were never fully explained, that legal title of the vehicles in question is vested in the company. Thus, the company’s concern that adequate and effective insurance coverage is in place is not difficult to comprehend. Further, neither was it disputed that it is the obligation of all bargaining unit employees to insure that appropriate coverage is in place in regard to their driving of a vehicle under the company banner.

104. To that end, the company has an insurance plan in place to which individual drivers may subscribe. So does the union. The union has claimed that the company has used various nefarious and unsavoury tactics to pressure drivers to opt for the company rather than the union plan. There is simply no evidence before us to establish or substantiate any such claim. Indeed, notwithstanding the contrary union insinuations, neither does there appear to be any financial benefit or other advantage to the company in maximizing the participants in its insurance plan. The evidence on that point was, ultimately, unchallenged. Similarly, neither are we persuaded that the company’s admitted efforts at ascertaining whether and how various drivers were properly insured can be elevated to the level of improper or unlawful conduct.

105. We are satisfied that the company has not engaged in any unlawful or improper conduct with regard to insurance coverage and the availability of same to bargaining unit employees.

c. Nomination

106. We come to a similar conclusion with respect to what the parties described as the “nomination issue”. Article 6.3 of the collective agreement (an article imposed by the first contract arbitrator) provided as follows:

A broker-driver or lessee shall have the right to nominate any person for a driving position, subject to the Company’s right to approve a person so nominated. Such approval shall not be unreasonably withheld.

107. We heard evidence to suggest that the efforts of at least one bargaining unit member who attempted to nominate a new driver were rebuffed. It was suggested in argument that the employer’s avoidance of the nomination efforts of union supporters married with the hiring of anti-union drivers was part of a deliberate effort to “pad the list” in aid of the termination application. Again, however, the elaborate theory of the union is unsupported by the evidence. In that regard some of the evidence we did not hear may be as significant as that we did.

108. We did, however, hear evidence from the employer that a significant bottleneck was created in the process of approving new drivers as a result of the GTAA decision to suspend its testing of driver applicants. The suspension was apparently in place for a significant portion of 1997. Neither does it appear that this issue, despite the position latterly adopted, is one which was of great or pressing concern to the union. Thus, Mr. Dagher indicated that the last time he discussed the nomination issue with Mr. Leimonis was in the summer of 1996. Leimonis indicated his view that the arbitrator had overstepped his authority in awarding the clause, that he would hire whomever he pleased and if the union didn’t like it they should take the matter to arbitration rather than wasting any more of his time. Mirroring its less than effective posture on discipline issues, the union, as Dagher put it, “didn’t want to come across too strong with Leimonis on the issue” – they knew it was contentious so they gave him “a chance to reconsider his hiring practices”. Despite Mr. Leimonis’ perhaps less than warm invitation, no grievance was ever advanced to arbitration challenging the company’s approach to the nomination issue.

109. We also find it significant that the number of local union members (270 - as attested to in a union audit report executed by union officials including Mr. Dagher) for the period June to December, 1996 appears to be virtually identical to the number of persons (274) on the voters’ list at the start of the representation vote held in September of 1997 (the collective agreement required that bargaining unit employees be members of the union).

110. At first blush that is hardly consistent with the assertion that the employer was both avoiding the nomination issue and hiring new employees who might be counted upon to oppose the trade union. Of course, the mere correspondence of numbers is neither conclusive nor dispositive. It could be that there is a significant divergence in the actual persons who comprise the two groups. But we simply do not know – for we were provided with no reliable evidence upon which to base or even infer such a conclusion. Although there was some evidence of obstacles to the nomination process in one case and multiple generic assertions of resistance to nomination as well as similar (again, predominantly unparticularized and generic) assertions that union opponents were being hired, there was little in the way of concrete evidence pertaining to identifiable individuals. Not a single person was ever properly identified as someone “improperly hired”. Neither is it the case that the union was without the resources to attempt to establish such a case. The “rollodex” referred to earlier in this decision was presented as an employer record (including photographs) of bargaining unit employees as of the date of the vote. None of those individuals was ever pointed to or identified by any of the union witnesses as someone who may have been hired by the employer either improperly or as an alternative to an attempted employee nomination.

111. Similarly, and perhaps even more curious in this regard was the entire absence of any evidence or argument proffered (by any of the parties) with respect to the status of persons whose eligibility to vote was under challenge (a point to which we shall return). There were some 36 ballots marked by individuals whose eligibility to vote was challenged by one or another of the parties. No evidence was called by the union (or others) to substantiate or establish the basis of its challenges.

112. In a context where the evidence on the issue is so vague and unsubstantiated, where the union was insufficiently troubled or otherwise moved to bring the matter of an alleged violation of the collective agreement to arbitration, we do not think it would be an appropriate exercise of the Board’s discretion to intervene in the matter even if a violation of the Act might otherwise have been established.

d. Mr. Peever’s dues

113. Another subject which consumed significant portions of hearing time pertained to the protracted saga of Mr. Peever and his unpaid union dues. To even briefly describe this almost comic series of events is to undoubtedly confer on them significance out of proportion with either their importance or utility in the determinations before us.

114. Although we have described some of these events as near comic, it must be stressed that, at least as between the union and employer, issues relating to union dues have been no laughing matter.

115. For example, despite a collective agreement which clearly obliges the employer to collect dues on behalf of the union, it appears that the employer engaged in no serious or systematic efforts to discharge that obligation until some six months into the term of the agreement. And that only after the issue was the subject of an award of a rights arbitrator (one of only two grievances that the union ever managed to advance to arbitration).

116. It is not difficult to comprehend that traditional industrial models of dues collection and remittance do not easily lend themselves to application in this industry. At the outset, bargaining unit employees do not earn wages from the employer from which union dues can readily be deducted. Indeed, it is a complex and varying web of commercial and employment relationships which surround the dependent contractors who comprise the bargaining unit. An obvious economic unit is the license or, perhaps more practical in the circumstances, the vehicle used to transport customers pursuant to the terms of the license and corresponding service agreement. Various types of bargaining unit members will be tied, in different ways, to each vehicle. They will include broker-drivers (i.e. persons party to a service agreement with the employer who also drive), lessee-drivers (those who have entered into some kind of commercial relationship with a broker) and drivers (who may have arrangements with members of either of the former 2 categories).

117. The dues structure and collection process that was put in place recognized that reality. Essentially, each bargaining unit member was responsible to pay an annual $50 membership fee. In addition, however, $60 was due each month in respect of each car regardless of the number of drivers operating it. As a consequence, the bargaining unit member with the chief day to day responsibility for operating the vehicle (i.e. the broker-driver or the lessee as the case might be – the “operator”) assumed a central role in the dues collection and remittance process. The dues obligations would be factored into the various financial transactions on going between that person and the company (the accounting would include or offset other financial transactions such as voucher redemptions or service fees or others). The common practice was for individual drivers to then pay $2 per day of driving to the operator.

118. The collective agreement requires all bargaining unit members to become and remain members in good standing of the union as a condition of employment. The arbitration award explicitly provides that no dependent contractor shall be permitted to drive if the annual membership fee has not been paid. Both the collective agreement and the arbitrator’s order provide that the union will hold the company harmless for any liability that might arise as a result of the collection of dues or compliance with the arbitrator’s order.

119. An issue arose and persisted for some significant period of time as to whether Mr. Peever had paid his dues and, if not, whether, as a consequence, the company ought to have held him “out of service”. It was not disputed that amounts corresponding to Mr. Peever’s dues obligations had been paid to the company not by Mr. Peever but by Mr. Limnidis (the relevant operator in respect of the car being driven). Nor was it disputed that these monies had been forwarded on by the company to the union in accordance with the collective agreement. The union, however, adopted the position that as Mr. Peever had not himself paid these monies (nor reimbursed Mr. Limnidis for having paid them on his behalf), that he had therefore not paid his required union dues and assessments and was therefore not a member in good standing. As a result, by letter dated October 1, 1996, Dagher wrote to Leimonis asking that Peever’s driving privileges be suspended until he made full payment of his Union dues at the employer’s office (why, on any theory, the monies ought to have been paid to the employer rather than to the union or even to Mr. Limnidis was never explained).

120. This request coupled with Mr. Peever’s continuing refusal to pay (or perhaps more accurately repay his union dues) resulted in a debacle that occupied far more time, energy and expense than it could possibly have warranted for the better part of a year. And frankly few of the participants emerge from this debacle with much dignity or credibility intact. It is, however, undoubtedly Mr. Peever who is the most seriously tainted. Without reviewing the facts in any further detail, suffice it to say that they include a former union official called to testify by the company and undoubtedly perceived as a renegade and turncoat by the union, the issuance of receipts to Mr. Peever (including some he apparently quite deftly issued to himself) which indicate the precise opposite of what was intended or accurate, an ongoing political battle between Messrs. Peever and Dagher which works its way up to high levels in the union and to this Board in another complaint , the employer refusing to accept the union’s assessment of whether or not one of its members is in good standing and other assorted instances of questionable competence or motive.

121. Again, without delving much further into the intricacies of the intrigue, certain truths are evident. Mr. Peever, despite some technical merit to much of his posturing during this ordeal, simply never disputed that he had not paid his dues or ever proffered any enduring reason why he was exempt from so doing. He knew that what he was doing was infuriating the union and that appears to be the precise attraction to him of maintaining his posture and accompanying course of action. (It, of course, comes as no surprise to anyone that Mr. Peever, as is his right as an affected dependent contractor, was and continues to be an opponent of this union.) Similarly, the company, while relying on questionable receipts and its more reliable knowledge that dues associated with the car Peever had been driving had been paid, simply did not possess any authority to set itself up as the arbiter of what constitutes good standing within the union.

122. Reasonable people with slightest modicum of sense and goodwill would have resolved this issue, one way or another, without permitting it to fester for the better part of a year.

123. Indeed, even viewed from the union’s perspective and accepting the questionable motives of the other participants, it remains difficult to understand why the issue was not resolved. The union voiced its objection in writing to the company in October of 1996. No grievance was filed until January of the following year when the matter had not been resolved. It read:

Grievance 2. – Re: Members in Good Standing

This letter also serves as a grievance with respect to the company’s refusal to comply with section 6.1 of the collective agreement with specific regards to “member in good standing”.

The Union requests that the company honor it’s [sic] commitment to that end.

124. It is not at all surprising that the company (however disingenuously) took the position that the grievance was vague and unspecific and purported to deny it on that basis. It did, however, indicate that it was available to schedule a grievance meeting. Like so many other aborted grievances, however, there is no evidence that the union took any steps to facilitate the advancement of this grievance through the grievance procedure or, indeed, on to arbitration, if necessary. The matter (at least of Mr. Peever’s status) was apparently ultimately resolved in April or May when Mr. Peever finally paid the outstanding monies to the union.

125. There can be little doubt that the events just described reflect poorly on all of the participants, but the Board sees no basis for or labour relations purpose to any type of intervention, in respect of the events surrounding Mr. Peever and his dues.

e. Other Events

126. Two final areas warrant comment. An invoice dated January 17, 1997 was forwarded from the company to the union. It claims an amount owing of $7500.00 (plus GST) from the union. The invoice itemizes the claim in the form of a $500.00 per month “service fee” claimed to be payable for each of the 15 months from November 1995 to January 1997. Mr. Leimonis testified that he issued the invoice because, in his words, “we did excessive work on behalf of the union”. No compelling explanation as to what this “work” might have been or whether it referred to anything more than fulfilling the normal obligations arising from a collective bargaining relationship or from the day to day administration of a collective agreement. In any event, Mr. Leimonis acknowledged that he found out later that he could not do this.

127. There was no suggestion that the union ever took this claim seriously – it appears (not without good reason) that it was simply ignored. And further, given that no steps were ever undertaken in furtherance of this specious claim, the Board is satisfied that even if the issuance of this invoice could otherwise be found to be an unfair labour practice (and we make no determination on the point), no labour relations purpose would be served by entertaining remedial requests in relation to the violation.

128. Having said that, however, the Board simply cannot avoid commenting upon the exquisite arrogance Mr. Leimonis displayed in connection with this invoice. One cannot avoid the conclusion that it was issued for the specific purpose of antagonizing the union. And as if his arrogance at the time did not meet his own high standards, Mr. Leimonis outdid himself in his testimony on the point. With utter disingenuousness, he claimed that he found out later he “couldn’t do it” and so he apologized. When asked when and to whom any apology had been tendered, he indicated that he was apologizing now (i.e. at the time of his testimony) and to the Board. But this was merely one of countless episodes during his testimony that Mr. Leimonis demonstrated his callousness, arrogance and utter lack of trustworthiness.

129. Finally, in this residual group of issues we advert very briefly to the allegations that Mr. Leimonis made (on more than one occasion) threats to decertify the union. We have no doubt that Mr. Leimonis is more than capable of making intemperate, unwise and downright rude comments at the slightest perceived provocation. We are satisfied, however, on the basis of the widely conflicting evidence (and in this regard there was no uniformity of evidence - even as between themselves the witnesses called by the union (or the company, for that matter) varied considerably), that little clarity attaches to precisely what Mr. Leimonis said. Even Mr. Graham who was, without question, the single most credible witness called to testify in these proceedings, testified that Mr. Lemoinis’ comments were ones which he interpreted to be a reference to decertification. In those circumstances and given the excitable climate which can readily attach to the types of meetings involved (exacerbated, no doubt, by the proclivities of the participants) and the fact that no serious complaint or objection was ever lodged against Mr. Leimonis’ alleged threats until the fodder for the instant applications was assembled, we decline to pursue this aspect of the complaint any further.

V Application to terminate the union’s bargaining rights

130. The union argues that the termination application ought to be dismissed or, effectively, deferred for a period of time. The argument is advanced on a number of related grounds. Chief among them is the union’s reliance on section 63(16), which provides:

131. …

(16) Despite subsections (5) and (14), the Board may dismiss the application if the Board is satisfied that the employer or a person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application.

131. The union asserts that, based on the evidence before us, the Board ought to conclude that the employer either “initiated the application” or “engaged in threats, coercion or intimidation in connection with the application”. The Board ought therefore to exercise its discretion in the face of such conduct to dismiss the application.

132. By way of an alternative argument, the union asserts that even if the Board declines to dismiss the termination application under section 63(16), it should, in the circumstances of this case and under its broad section 96 remedial authority, provide the parties with a period of labour relations stability. The effect of the employer’s unfair labour practices has been to rob the union and the employees it represents of such a period. And without such a period, it is unfair to require employees to make a decision about their wishes for continued trade union representation. Such a decision must be reasoned and not coerced.

133. Elaborating on this latter argument, the union asserted that the Board could have refused to have heard the termination application until the first section 96 complaint was resolved (it will be recalled that the section 96 application was filed in March, 1997; the termination application some six months later). Indeed, the union had sought to have the hearing of the section 96 application expedited and heard quickly for it anticipated that once the relevant window opened, it would be facing the inevitable termination application. The relief that the Board grants in respect of the section 96 application ought not to be rendered nugatory by the simultaneous termination of bargaining rights.

134. We have already determined the extent of the employer’s unfair labour practices (under the first section 96 complaint). And while there have indeed been some, we have found both the incidence and severity of that unlawful conduct to be significantly less dramatic than alleged by the union. Thus, while the union has raised some challenging remedial issues which might well require serious and careful attention in the appropriate case, this is not that case.

135. In that regard, we must again return to consider some aspects of the conduct of these proceedings. These applications, these parties and the predicaments they have constructed for themselves have created few heroes. Neither does it appear that anyone associated with or drawn into the vortex the parties have created has emerged entirely intact. Indeed, it may well be that even the performance of the Board has, to some extent, been affected.

136. It is true that despite the union’s request for expedition, the hearing in the first section 96 application did not commence until more than four months after it had been filed. These events transpired during a period a time when, for reasons which are unnecessary to detail and are well known to the labour relations community, the Board’s capacity to respond to its caseload was somewhat impaired. This is perhaps only one of many examples where the Board’s consequent inability to respond to time sensitive matters has impeded its ability to fully serve its community. But if the delay in commencing the litigation may have been unfortunate, its conduct, once commenced, was largely in the parties’ hands.

137. As already noted, the termination application we are now considering was brought some six months after the filing of the union’s first unfair labour practice complaint. A representation vote was directed and held and, in view of the union’s allegations under section 63(16), the matter was listed for hearing. The hearing was scheduled to commence before this panel on October 21, 1997, the same day scheduled for the ninth day of the continuing hearings in the unfair labour practice complaint. The parties were advised to consider and address the question of how these two separate files ought to be heard. On that day the union, the company and the applicants in the termination application executed a procedural agreement. At the time, the Board accepted this agreement and continues to view it as perhaps the singular incident of cooperation and good faith these parties were able to engage in during the entire course of these proceedings. Essentially, the parties agreed to hear the section 96 and termination applications together. They also agreed that it would not be necessary to recommence the proceedings despite the fact that the termination applicants were only then commencing their participation. The evidence which had been heard to date would stand and the two matters would thenceforward continue together. No one suggested that the section 96 application should be heard or heard and disposed of prior to the Board’s consideration of the termination application.

138. Some months later and as these proceedings continued, the parties faced yet another procedural dilemma. In January of 1998, the union filed a further section 96 application complaining of certain employer conduct which occurred after the parties’ collective bargaining process had reached the period of lawful strike/lockout. A hearing was held on February 17, 1998 to deal with the union’s request for interim relief in relation to this new complaint. On February 27, 1998, the Board issued its decision dismissing the request for interim relief.

139. The merits of the second section 96 complaint were listed to be heard before this panel on April 16, 1998, the same day scheduled for the fourteenth day of hearing in the prior section 96 complaint (being heard together with the termination application). The parties were advised to consider and address the question of how these separate files ought to be heard. There was some limited disagreement between the parties as to how to proceed. However, all agreed that the fresh section 96 application ought to be heard by this panel and none suggested that the ongoing two matters ought to be heard or heard and disposed of prior to commencing the hearing into the fresh application. In the result, the Board continued to hear the evidence in the first two applications, next heard the evidence in the fresh application and, finally, heard argument on all three matters.

140. Some 35 days of hearing were held in these matters (including 5 days allotted for argument). The hearings commenced on July 7, 1997; final submissions continued on into January of 1999. With the exception of the termination applicants, the manner in which the parties conducted these proceedings evinced little in the way of a desire for any expeditious resolution of these matters. The Board does not mean to be critical of the parties’ motives in the procedural agreements they entered into. Indeed, there were certainly dictates of economy and rationality in the litigation process to support the manner of proceeding that was adopted. But in other respects the parties (again excepting the termination applicants) displayed little desire for efficiency or economy in the day to day conduct of the litigation process.

141. In that context, the Board finds it exceedingly difficult to attach much credence to the union’s alternative argument. For while it is true that the union did initially seek to have the first section 96 application expedited and did seek interim relief in respect of its second section 96 application, its creative argument aimed at preserving the integrity of the Board’s remedial intervention is simply not consistent with its conduct of these proceedings. Indeed, the argument that the Board ought to recreate conditions as they might or ought to have existed prior to the termination application would be more forceful had the union not contributed so directly (even if not exclusively) to the protracted nature of these proceedings. It was utterly unnecessary for these proceedings to have occupied the number of hearing days that they did. The union and the employer each contributed in significant amounts to the unnecessary elongation of the proceedings. This was war by litigation; the fight was as important as the victory. Both the union and the employer took every opportunity to subject their opponents to extended discomfort.

142. In a context where the union has consented to the multiplicity of proceedings and then contributed to the unnecessary prolongation of same, we are simply not responsive to its urgings that we rewrite that history in our remedial response. This is particularly the case where, as we have already indicated, the violations we have found are neither as extensive nor as dramatic as asserted by the union.

143. This brings us to a consideration of the union’s primary argument under section 63(16) which provides:

144. …

(16) Despite subsections (5) and (14), the Board may dismiss the application if the Board is satisfied that the employer or a person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application.

144. This section was part of the package of sweeping reforms brought about to the processes of certification and termination in 1995. The Board’s resulting approach to termination applications and, in particular, to section 63(16) has been considered and developed in a number of cases including Elirpa Construction and Materials Limited, [1996] OLRB Rep. Jan. 4; Bytown Electrical Services Ltd., [1996] OLRB Rep. Sept./Oct. 721; Tenaquip Limited, [1997] OLRB July/Aug. 742; and Bancroft I.G.A., [1998] OLRB Rep. July/Aug. 543.

145. A useful summary of that approach may be found in the Tenaquip case beginning at paragraph 18:

146. There will no longer be a hearing as a matter of course to inquire into the voluntariness of petitions filed in support of a termination application. Unions should no longer anticipate the holding of such a hearing or any "automatic" opportunity to subject the applicant to cross-examination or to otherwise put the applicant to the proof of establishing such voluntariness.

147. More specifically, and perhaps more significantly for our current purposes, applicants are no longer typically required to persuade the Board that (even mistaken but reasonable) employee perceptions of management involvement in a termination application have not undermined the voluntar­iness of a petition. Generally speaking, the Board is now concerned with actual not perceived employer involvement in termination applications.

148. Consequently, the vast majority of termination applications (which are timely and demon­strate the requisite apparent support) will now be determined by way of a representation vote. Indeed, there is no question that this typifies the Board's experience under Bill 7.

149. There remains, however, a residual category of termination cases where a hearing may be required, namely when the trade union alleges that the employer "initiated the application or engaged in threats, coercion or intimidation in connection with the application". That simple assertion, however, will not result in a hearing unless the union also pleads specific particularized facts disclosing a prima facie case of some section 63(16) conduct.

150. Where such a hearing is held and although the Board clearly has a discretion to direct otherwise, the union, in view of the onus it now bears, will typically be expected to call its evidence first. By its very nature, (the hopefully rare instances of) covert employer initiation of a termination application is unlikely to be an easy matter for a union to affirmatively and directly establish. And while the onus is clearly upon the union, the Board does recognize that circumstantial evidence may be sufficient to lead to an inference of improper employer involvement. An employer who chooses to call no evidence in the face of such circumstantial evidence obviously does so at its peril.

151. It is also useful to consider why, from a labour relations policy perspective, employer initiated termination applications under section 63 are to be viewed with considerable skepticism. An obvious explanation was adverted to in the Bytown decision (cited earlier) which described such conduct as an "improper interference in an area which should properly be within the exclusive terrain of the employees".

152. There are two independent aspects to this explanation. First, the choice of whether or not to be represented by a trade union is and ought generally to be a collective and exclusive choice of affected employees. On that basis, employer interference in such a choice may well be improper.

153. But there is another and, for our current purposes, perhaps more significant aspect to the impropriety of employer involvement in termination applications.

154. This Board has historically been acutely sensitive to the delicate and responsive nature of the employment relationship. As the Board observed over four decades ago in the oft cited case of Pigott Motors, 63 CLLC 16,264:

In view of the responsive nature of his relationship with his employer and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act.

27. The Board went on in that case to cite this concern and the fact that, in the Board's experience, employers in a "not inconsiderable number of cases" had improperly inhibited or interfered with the free exercise of employee rights as the basis for the Board's former practice of requiring applicants to establish the voluntariness of petitions.

28. Does the fact that the Board will no longer, as a matter of course, conduct an inquiry into the voluntariness of a petition, mean that all of the Board's historical concerns about the impropriety of employer involvement in termination applications have now completely dissipated? Clearly not. Such conduct may still amount to a violation of section 70 of the Act and improper employer involvement in a termination application may lead to the dismissal of the application under section 63(16).

29. In the Bytown decision (at paragraph 109) the Board offered the following view as to the interpretation of the word “initiation” found in section 63(16):

30. We consider that the proper interpretation of the notion of "initiation" is to determine whether the employer's conduct amounted to significant or influential employer involvement giving rise to the termination application. In other words, if the application is founded in the conduct of the employer, then it can reasonably be concluded that the employer has initiated that application.

31. That view was adopted in the subsequent Tenaquip and Bancroft decisions although we note that the fact that the impugned employer conduct occurred at “an early and formative stage of the application” was a factor specifically commented on by the Board in the Tenaquip decision (at paragraph 40).

32. How then do we apply the Board’s approach to section 63(16) to the instant case? First, we deal with whether the employer can be said to have initiated the application. There is simply no direct evidence before us to sustain such a conclusion. However, as the union properly reminded us, this Board needs to be alive to and to continue to foster its own ability and expertise to understand many of the less than visible dynamics of workplace pressures and demands vis a vis the free exercise of statutorily protected rights. That, of course, is precisely why and how the Board has indicated its willingness, in the appropriate case, to draw inferences of employer initiation even where the evidentiary foundation for such a conclusion may be little more than circumstantial.

33. We are simply not persuaded that there is sufficient evidence before us (circumstantial or otherwise) to permit even the inferential conclusion that the employer initiated the termination application.

34. Both termination applicants who testified in these proceedings explained whey they were initiated. And while their explanations for why they wished to terminate the union’s bargaining rights may have done little to satisfy the union, that really is of no moment. An employee seeking to terminate a trade union’s bargaining rights generally need not provide any justification for that choice before this Board. Indeed, such reasons may only become relevant to the limited and indirect extent that they either are or are not consistent with any conclusion about improper employer initiation. But in the present case both Messrs. Peever and Papaioannou have (as the union to some extent asserted) long harboured antipathies to the trade union. However rational, reasonable or persuasive those sentiments may be, we are satisfied that they are the sentiments of the applicants who, in filing the termination application, have exercised a legal right available to them. They initiated the application.

35. Neither are we persuaded that we ought to infer any different conclusion about the application’s initiation based on the cumulative weight of a series of individually insignificant events (such as singular and dated examples of alleged preferential dispatch opportunities, the fact that the applicants were seen on the employer’s premises – all operators would have occasion to attend those premises, the fact that Peever and Leimonis exchanged words on the day of the vote or that Papaioannou considered himself to be a friend of Leimonis). None of the various incidents (the preceeding parenthetical list is but a representative sample) shed any light on the initiation of the application. Indeed, there was no evidence relied upon by the union which related to the most basic elements of the initiation of the application. Nothing was directly pointed to which related to its conception, process of filing, or collection of employee support which was said to undermine its bona fides. In the absence of any direct evidence or any circumstantial evidence which supports a contrary inference, we are simply unprepared to conclude that this application was initiated by the employer.

36. We are equally unable to come to any different conclusion with respect to the second branch of the union’s section 63(16) argument. We were urged to conclude that the employer engaged in “threats, coercion or intimidation in connection with the application”. And while this second branch of the potential application of section 63(16) has received relatively little Board attention to date, we find it unnecessary, for our current purposes, to exhaustively probe the limits of its meaning and application.

37. Having said that, however, it is clear that this branch of the section can be invoked only when certain inappropriate conduct is engaged in connection with the application. Thus, and at a minimum, there must be some nexus between the impugned employer conduct and the termination application.

38. For example, an employer who, at or near a polling booth, threatened to discharge employees who voted against a termination application could certainly expect to be found to have engaged in “threats…in connection with the application”. But, of course, the nexus in respect of either the conduct or its effects need not necessarily be so patent on its face. Thus, it may be that employer conduct not so obviously or even necessarily deliberately tied to the termination application might, in the appropriate case, be found to be both improper and to be “in connection with the application”. The connection with the application might also be inferred from the timing of events. Thus, the Board might conclude that conduct engaged in on the eve of a termination application is conduct in connection with the application. Similarly, the Board might conclude that conduct which can be seen to impact the termination application can be considered to have been engaged in “in connection” with it. There are undoubtedly further possibilities in relation to the interpretation and application of this branch of the subsection.

39. However and as we have already indicated, it is unnecessary for us to pursue this analysis any further in this case. First of all, the extent of the unfair labour practices alleged by the union pales in comparison to the extent of the violations which have been established. Second, there is no immediately obvious nexus between the violations which have been found and the termination application. Third, neither has it been demonstrated nor are we prepared to infer that those violations have had any impact (and certainly no significant impact) on the course of the termination application. Finally, we note that not only was the impugned conduct not engaged in at an “early and formative stage of the application” (a consideration perhaps more relevant to the issue of initiation), but there is a significantly large temporal gap (six months and more) between the impugned conduct and the filing of the termination application. Clearly, as such a temporal gap between the conduct complained of and the termination application increases, so too does the difficulty of establishing that the conduct is “in connection with the application”.

40. In all of these circumstances, we are not prepared to conclude that the employer’s violations of the Act (even assuming them capable of characterization as “threats, coercion, or intimidation”, a finding we do not make) were engaged in “in connection with the [termination] application”. Accordingly, we see no reason why the termination application ought not to be disposed of on any basis other than the results of the representation vote.

41. We note, however, that those results are, so far, inconclusive. The report of the Labour Relations Officer indicates that, of the ballots counted so far, 89 employees voted in favour of the union while 103 voted against. There remain, however, 36 ballots which were segregated and not counted as a result of challenges having been raised by one or other of the parties to voter eligibility.

42. During the entire course of these proceedings, no evidence was called and no submissions were made by any party to the proceedings which might have shed any light on any of the challenges in question. Accordingly, since no basis has been established for the outstanding challenges to voter eligibility, the Board hereby directs that the segregated ballots be counted. A Labour Relations Officer will contact the parties for that purpose.

VI Bargaining Conduct (the second section 96 complaint)

159. In what was described as Phase II of these proceedings, the Board heard the evidence of the parties in relation to the second unfair labour practice complaint filed by the union on January 12, 1998. Messrs. Dagher and Hewitt were recalled to give evidence about the events complained of.

160. We cannot help but observe, however, that by this stage in the proceedings, the parties had, for whatever reasons, apparently lost their appetite (or perhaps merely their stamina) for unduly protracting the proceedings. Indeed and as a consequence, we may have witnessed some dramatic over-compensation. The perhaps unfortunate result was that, as compared with the intricate minutiae of evidence presented in the first phase of these proceedings, the evidence in the second phase was completed quite expeditiously. We say unfortunate because, as a consequence and as will shortly become clear, there was certain evidence the parties simply declined to put before the Board.

161. The union’s allegations relate principally to two unilateral initiatives undertaken by the employer once the parties were in a legal strike/lockout position. There was no issue that the employer had undertaken the impugned initiatives. Effective January 3, 1998, it ceased collecting union dues. Then, while purporting to continue to apply the “terms and conditions of the existing Service Agreements”, on February 1, 1998, it increased the service fees to be paid by brokers from $775.00 to $925.00 per month.

162. The union also complained that a statement made by Mr. Leimonis at a bargaining meeting on or about February 4, 1998 was unlawful. We deal with this latter allegation first.

163. The evidence of the parties on this point was brief. Mr. Dagher testified that, at the negotiating meeting in question, Mr. Leimonis made a statement directed to Mr. Graham to the effect that “when you fight the company the drivers pay; every time you fight dues go up". There was, however, perhaps less disagreement about the fact of the statement having been made than there was about the context in which it arose. We find Mr. Dagher’s assertion that it simply came “out of the blue” and without any context whatsoever to be improbable. On this point, we prefer the evidence of Mr. Hewitt which was supported, at least indirectly, by certain documentary evidence. Mr. Hewitt advised that at the conclusion of the prior meeting, the union had raised issues relating to workers’ compensation coverage for drivers. We need consider neither the complexity of the matter in this particular industry nor the wisdom of the union in raising the issue (presumably a matter of legal obligation not negotiation) at that stage of the negotiation process. Suffice it to say that the company’s view was that if it were required to make worker’s compensation remittances on behalf of drivers, it would have to revise its $925.00 per month proposed service fee to offset the additional costs.

164. That view was communicated to the union in writing and it was when the issue was revisited at the next meeting on February 4, 1998 that Mr. Leimonis made the impugned comments. Mr. Hewitt was therefore able to attribute a more benign character to the content of Mr. Leimonis’ statement.

165. The Board has no doubt that Mr. Leimonis has a keen ability to make impulsive, exuberant and intemperate comments demonstrating poor judgement. It is a skill he showcased frequently in his testimony before us. But even accepting Dagher’s account of the statement as more accurate, we are simply not persuaded, particularly in the context it arose, that it amounts to an illegality.

166. The other two aspects of the union’s complaint, however, merit closer examination. The employer’s intention to make alterations related to union dues and service fees was announced on December 29, 1997. These changes and others were outlined in a letter dated December 29, 1997 which the company addressed to all brokers, lessees and drivers. It read:

As you may be aware, the management of Airline Limousine have been negotiating with representatives of the Amalgamated Transit Union, Local 1703. The most recent Collective Agreement expired November 8, 1997, and since then, the Company and the Union have had three meetings during which they conducted negotiations. The parties have also had a fourth meeting with a conciliation officer from the Office of Mediation, Ministry of Labour. At this point in time, the Company and the union have not been able to agree on the terms and provisions of a new Collective Agreement.

The Company has delivered to the Union a copy of its proposed new Collective agreement and has clearly indicated to the Union that it would be prepared to resolve all bargaining issues by means of its proposal for a new Collective Agreement. We believe that the Collective Agreement proposals delivered to the Union are fair for the Union and the Dependant Contractors/Drivers.

After the parties met with the conciliation officer on December 10, 1997, the Minister of Labour released a report indicating that he does not think it desirable to appoint a conciliation board to assist the parties to arrive at a new Collective Agreement. Accordingly, effective January 3, 1998, the parties will no longer be bound by the current terms and provisions of the Collective Agreement. For example, effective January 3, 1998, the Company will not be obligated to accept grievances from the Union, the provisions of the Collective Agreement regarding discipline will no longer apply, and the Company will no longer be obligated to collect Union dues.

Despite the fact that the Collective Agreement will no longer have any effect as of January 3, 1998, the Company plans to continue operations and to provide you with existing dispatch services without a Collective Agreement or any of its terms and conditions.

Since your working relationship with the Company will no longer be governed by the terms and conditions of the expired Collective Agreement the Company hereby advises that it wishes to continue your working relationship with the Company effective January 3, 1998, in accordance with the following terms and conditions:

1. The Company plans to operate its existing dispatch service;

2. The Company will continue to apply the terms and conditions of the existing Service Agreements;

3. The Company hopes that there will be no disciplinary issues. However, if such incidents should arise, discipline will be governed by the existing Drivers’ Manual, Rules and Regulations;

4. Until the Company enters into a new Collective Agreement with the Union, it will not be collecting union dues;

5. As you know, for many years now the service fees paid to the Company pursuant to the Collective Agreement, have been $775.00 per month. The Company has been receiving fees far below what other companies in the industry receive. For example, we understand that dependant contractors/drivers working with Airlift or MacIntosh , have been paying service fees in the range of $1,100.00 for the past few years. The Company believes that it has been more than fair in charging only $775.00 per month in service fees. However, this cannot continue or the Company will be in a very difficult economic position.

Accordingly, service fees charged by the Company will remain at $775.00 for the month of January, 1998. The Company is hereby providing 30 days’ notice the service fees will be increased to $925.00 per month, effective February 1, 1998. While this increase of service fees to $925.00 is still below what some other companies in the industry are receiving, Airline Limousine management want to be fair to you by refraining from increasing to market levels at the current time.

The Company will continue to negotiate with the Union in good faith with the goal of arriving at a renewed Collective Agreement. Until the parties are able to arrive at a new Collective Agreement, the above terms and conditions will be in effect.

The Company looks forward to its ongoing relationship with all of you.

Yours very truly,

Mr. Nick Leimonis

President

167. As announced, effective January 3, 1998, the company ceased collecting union dues on behalf of the applicant and, effective February 1, 1998, it increased the service fees by some 20%.

168. The union acknowledges that, as a general proposition, an employer is entitled to make unilateral changes to the terms and conditions of employment once the parties have progressed beyond conciliation and have arrived at a legal strike/lockout position (and there is no issue that the parties were in that position at the time of the impugned changes). It is asserted, however, that in the particular circumstances of this case, the two changes complained of are unlawful.

a. Union Dues

169. Dealing first with the decision to cease collecting union dues, we must comment on the paucity of the evidence. There was no dispute that the employer had discontinued its collection and remittance of dues. It appears that the parties may have been of the view that the Board can make its determination as to the lawfulness of that conduct based on little more than that factual foundation.

170. Ultimately, the employer argued that it did nothing more or less than to exert the very type of economic pressure contemplated by the Act when the parties reach the stage of permitted economic warfare. But despite that ultimate assertion, it called no evidence whatsoever that would shed any light on the employer’s purpose or motives in ceasing to collect the dues. Similarly, the union called no direct evidence which would assist in that regard. Of course, the union’s failure in that regard may be less than surprising. However, the Board notes that the question of the decision to cease collecting union dues (and the employer motive for so doing) was entirely absent from any of the union’s cross-examination of Mr. Hewitt.

171. On the union side, Mr. Dagher’s evidence sounded two themes. First, he described how the absence of incoming dues impacted on the union and its ability to finance these proceedings. Second, he explained to this panel of the Board (whom he obviously felt was in desperate need of education on the point) how a scheme whereby the employer is responsible for remitting dues is the only sensible one in this industry. He referred, for example, to the employer’s power to hold drivers who are delinquent in their dues payment “out of service”, a power the union simply does not possess. Mr. Dagher did not, however, demonstrate or express any understanding of the legal framework under which an employer may be obliged to remit union dues. He clearly had some specific experience with earlier union dues issues (one of only two grievances that ever made their way to arbitration involved union dues; and his experience with Mr. Peever’s protracted dispute with the union also related to the payment of dues). Despite that, Mr. Dagher conceded in cross-examination that he was unaware at the time of the employer’s announcement and only learned later that, as he put it, “it was within their right to stop collecting dues”.

172. At the end of the day, the employer argued that it had merely engaged in the very type of economic warfare contemplated by the Act. And economic warfare is undoubtedly designed and legally permitted to have economic consequences.

173. The union, for its part, asserts that while the employer might well otherwise be entitled to take the action that it did, a lawful act may become unlawful where underlying motives are tainted by anti-union animus. If the employer’s conduct was motivated by a desire to undermine the union, then that inappropriate motivation taints what is otherwise permissible.

174. The Board is not prepared to conclude that the employer’s decision to cease collecting union dues is a violation of the Act. We come to this conclusion for a number of reasons which include the following.

175. The union never clearly asserted which sections of the Act were alleged to have been violated by this conduct and, in particular, whether those sections attract the reverse onus provisions of the Act. There is no direct evidence before the Board as to the employer’s motivation – both parties simply opted not to call or otherwise seek any such evidence.

176. Further, while Mr. Dagher may be correct about some of the peculiarities of his industry, there are aspects of the prior dues collection arrangement under the collective agreement which militate against the conclusion he urges. The employer’s failure to continue that arrangement in the absence of the legal authority and protection offered by a collective agreement may be more readily understandable given the peculiarities of this industry.

177. There is nothing particularly unique about a dues collection structure which imposes the primary administrative burden for collection and remittance on the employer. That is commonplace. But there are certainly features of the dues collection structure under the former collective agreement in this case which are unique. Mr. Dagher pointed to the fact that, unlike the typical industrial setting, the employer was not required to deduct monies from employees’ wages. For under the terms of the collective agreement, employees do not receive wages per se. Rather, the employer was required to factor union dues into the set of disparate financial transactions it engaged in with the operator (e.g. fees and the like owing to the employer balanced against voucher or similar monies payable by the employer). But the peculiarities of the system did not end there. For the employer was not obliged to collect dues directly from each and every bargaining unit member. Rather, monies were collected from each operator. These represented the dues payable by all of the bargaining unit members associated with that operator’s vehicle. That was the scheme (certainly in the wake of the rights arbitration) that was specifically mandated and legally required under the terms of the collective agreement.

178. However, in the absence of a legally binding collective agreement, questions may arise as to the sources of employees’ obligations to remit dues and perhaps more significant for our purposes, to the employer’s legal authority to require same. It may be that union members have a continuing obligation to pay dues as a consequence of their membership and the terms of the union’s constitution. But if the source of that obligation cannot be grounded in a collective agreement, the nature of the employer’s obligation or, indeed, potential liability for acting as the union’s collection agent is less clear. It may well be that this is less problematic in the traditional industrial setting where union dues are deducted from the paycheques of each individual employee. For in that case, the employer might easily decline to make deductions in relation to an objecting employee and leave the matter to be further dealt with as between that employee and the union. The options are less clear where the system has been to deduct monies in respect of a group of employees from the single operator. In that context it is somewhat fanciful for Mr. Dagher or the union to suggest that (it is only) the employer’s arsenal (which) includes the weapon of holding an employee out of service. For it may well be that the availability of such a sanction is also dependent upon the existence of a collective agreement. Again, in the absence of a collective agreement, what would be the source of the employer’s legal authority to hold a delinquent employee out of service? Indeed, and assuming bargaining unit members are covered by the terms of the Employment Standards Act (a proposition which may be less than evident), would an unauthorized deduction not be unlawful?

179. In the present case, the union’s argument may have had greater force had it provided the employer with evidence that bargaining unit members authorized the continuing deductions and that the union was prepared to continue to indemnify the company in the manner previously contemplated under the collective agreement. Rather, the union asserts that the company ought to have simply continued to collect dues without any demonstrated or apparent legal authority to do so. Further, the union claims that the company (with the same suspect level of authority) ought to have enforced the collection of dues by holding operators and/or other bargaining unit members who were delinquent “out of service”. It thus appears that the union was not merely seeking for the employer to act as its administrative agent to facilitate dues collection. Rather and perhaps more significant in the circumstances, the union was seeking to conscript the employer to be the party compelling and enforcing the collection of dues.

180. In all of the circumstances, including the lack of any clear direct evidence of improper motive, the presumptive entitlement of an employer to lawfully alter terms and conditions of employment during a legal strike/lockout period, and the very specific configuration of the dues collection mechanisms under the collective agreement, we are not persuaded that the employer acted unlawfully when it determined to discontinue the collection of union dues.

b. Service Fees

181. Historically, the service agreement has been the legal bedrock of the commercial relationships between the company and its brokers. The existence of the service agreement long predates the onset of the collective bargaining regime. Evidence was placed before us detailing the level of “dispatching and brokerage annual fees” dating back to 1984, some 10 years prior to the certification of the union.

182. It will be recalled, of course, that not all brokers were directly affected by the certification (in the sense that only brokers who also drive would be included in the bargaining unit). Similarly, not all bargaining unit members (only those who are also brokers) would be parties to a service agreement.

183. We were not advised what proportion of brokers were broker-drivers in the bargaining unit compared to brokers who do not drive and who are therefore not in the bargaining unit. Similarly, neither were we advised what proportion of bargaining unit members (which would include broker-drivers, lessees and drivers) were brokers. It is clear, however, that not all brokers are bargaining unit members and, similarly, only a portion of bargaining unit members are brokers.

184. It is only brokers who would be parties to a service agreement with the company. And while, as we have and shall further see, the collective agreement dealt with some matters relating to the commercial arrangements between the company and its brokers (i.e. the territory formerly regulated exclusively by the service agreements), there is simply nothing to which we were pointed in the collective agreement which regulates commercial relations between brokers and their lessees and/or drivers.

185. Thus, while one may readily assume that an alteration to service fees payable by any broker might have some impact on the broker’s other commercial relations, that is simply not a matter which the parties saw fit to regulate in the collective agreement.

186. The service agreements certainly survived the onset of collective bargaining. The collective agreement contains at least two important references to the service agreements. Article 3.2 provides (in part):

The Company shall continue to have the right to require Service Agreements from all brokers and broker drivers.

and Article 16 is as follows:

SERVICE FEES

16.1 The service fees charged by the Company are to remain at $775.00 per month for the duration of this agreement

187. Since January of 1992 service fees had been set at $775.00 per month. They remained at that level until the company’s announced increase on December 29, 1997 was implemented on February 1, 1998.

188. It will also be recalled that in its letter to all brokers, lessees and drivers announcing the various changes, the company indicated that it would “continue to apply the terms and conditions of the existing Service Agreements”. Thus, it appears evident that the service agreements not only predated and survived the onset of collective bargaining, but they appear equally poised to survive both the collective agreement and, depending on the ultimate result of these proceedings, the very existence of any collective bargaining relationship.

189. A number of service agreements were filed as exhibits and it was common ground that, apart from certain details specific to individual brokers, these agreements are all in a common form. The agreements contemplate their annual automatic renewal “on the same terms and conditions save and except for fees and charges which shall be set out in Schedule ‘A’”. That schedule sets out the level of service fees and contemplates “an increase in the total monthly charges based on the formula hereinafter set out”. The formula is set out as follows:

[service] fees increases shall not exceed the Consumer Price Index as published by Statistics Canada for the proceeding [sic] year and 10 (10%) per cent, whichever is less; provided that the Corporation shall be permitted at any time to, after December 31, 1986, make an application for an amount in excess of the Consumer Price. [the parties were in agreement that the provision then continues on the previous page as follows:]

[to] make an application for an increase than [sic] such application shall be proceeded with thirty (30) day written notice to the Broker and such written notice, to be affected [sic], shall be done no later than thirty (30) days prior to December 31, 1982 and on each anniversary date of this Agreement thereafter. The parties agree that a mere notice of intention by the Corporation indicating that an application will be made shall be sufficient on the Corporation’s part; provided that the Corporation may at any time withdraw any application for increase at any time prior to any hearing. The parties agree that the Broker shall be entitled to make representations on his behalve [sic] at the time of hearing of the Corporation’s application for increase.

190. Of course, while this provision of the service agreement contemplates individual dealings and an employer right to increase fees within stated limits, the collective agreement precluded both. Instead, the level of service fees was frozen for the duration of the collective agreement.

191. Mr. Hewitt provided some explanation as to how the employer arrived at and implemented the figure of $925.00 per month. The employer points to two main aspects of that evidence to support what it asserts to be the reasonableness of the fee increase. First, Mr. Hewitt testified that the recent increase served to bring the company’s fees in line with the corresponding fees charged by some of its direct competitors.

192. Second, Mr. Hewitt explained the contents of a spreadsheet he prepared. In it he set out the service fees charged by the employer for the years 1984 to 1998. Along side those he recorded cost of living figures from Statistics Canada for Toronto which he then calculated as annual percentages. By applying these percentages to the service fees on an annual basis, Mr. Hewitt was able to demonstrate what the current level of fees might have been – had the company opted to increase fees by the full consumer price increase each and every year. Had that happened, Mr. Hewitt’s calculation suggests that from 1984 to 1997 (and the expiry of the collective agreement) fees would have moved from $580.00 per month to barely under $900.00 per month (an increase of some 55% over a 13 year period). By contrast, of course, Mr. Hewitt’s chart also demonstrates that in fact the service fees have moved from $580 per month in 1984 to only $775 per month in 1997 (an increase of some 33% over the same period). In other words, over those 13 years the company has forgone its ability to increase service fees to keep pace with the consumer price index such that, as of the expiry of the collective agreement, those fees were some 22% less than they might otherwise have been under the terms of the service agreement.

193. The company, by proposing and then implementing a 20% increase in those fees, is doing nothing more than recapturing the ground it has lost to inflation, something the service agreement contemplates it is able to do.

194. The union, for its part, argues that while the service agreement does indeed contemplate the possibility of yearly increases to service fees tied to inflation, any such increase is tied to the current annual CPI figures. The service agreement simply does not contemplate or permit the employer to adjust service fees to reflect the last 13 years of inflation. Indeed, the union argued that in circumstances which, at the time the argument was advanced, included a judicial pronouncement directly on point, the increase implemented by the employer was patently contrary to the terms of the service agreement. The union urged the Board to conclude that conduct which was so blatantly in breach of the service agreement obligations and therefore “unlawful” under its terms could not possibly be consistent with the employer’s obligation to bargain in good faith and make every reasonable effort to make a collective agreement.

195. It is necessary for us to reflect briefly on the nature and significance of the service agreements in the collective bargaining context.

196. This is not a typical industrial collective bargaining setting. It is anything but. While there is no issue that bargaining unit members are employees within the meaning of the Act, the parameters of their employment hardly conform to the traditional or classic mould. Undoubtedly, the single most significant factor in this regard is their status as dependent contractors. By definition, one might expect “dependent contractors” to exhibit inconsistent characteristics. The independence and risk taking normally associated with an independent entrepreneur is married with an economic dependence typical of more conventional employees. And while dependent contractors in this bargaining unit may (depending on their individual circumstances – ranging from brokers to lessees to drivers) display varying levels of entrepreneurial intensity, the diverse mix of economic contradictions is undeniable. As the union took pains to demonstrate and underline, the capital investment and operating expenses required of a broker are considerable. But however impressive the capital investment may be, without the right to operate on the airport premises and without access to an efficient system of dispatching calls, there is virtually no chance of success in the business. It is the employer who is (at least indirectly) the source of those critical resources. Indeed, it is the transfer of the employer’s operating rights (via brokers) to bargaining unit employees and the maintenance of the dispatch system which are the cornerstones of both the commercial relationship which has always existed between the company and its brokers and the employment relationship between the employer and its dependent contractors.

197. That sometimes inconsistent blend of commercial and employment relationships was clearly not exhausted by the arrival of collective bargaining or a collective agreement. Nor is it likely to evaporate with their departure. The increased prevalence of economic arrangements which diverge from and expand the parameters of classical patterns will necessitate new analytical approaches. But whether we are dealing with the peculiarities of taxi/limousine drivers, actors, ballerinas, teachers or other professionals who may be parties to individual contracts while also subject to collective bargaining, the courts and administrative tribunals will have to be up to the task.

198. In this unusual context, it is perhaps not surprising that the parties have encountered some analytical difficulties, divergences and dislocations in their efforts at reconciling the co-existence and hierarchy of disparate legal relationships.

199. We have already observed that the service agreements have historically been the principal legal vehicle governing the employer’s commercial relationship with its brokers. The collective agreement cannot simply be said to have replaced the service agreements. Its terms were clearly not incorporated by reference into the collective agreement. The parties clearly agreed that the Company would continue to have the right to require service agreements from its brokers. And it did.

200. It is not necessary for us to perform a comprehensive analysis of the relative contents of the service agreement and the collective agreement. In terms of the relative subject matter there are clearly areas of overlap and divergence. Issues related to discipline of drivers and service fees are but two examples of overlapping subject matter. There are, of course, provisions and subjects covered in each of the documents which are not addressed in the other. It is the overlapping provisions related to service fees which are of immediate concern.

201. Again, while the service agreement contains provisions and a code governing the establishment and potential increase to service fees, the collective agreement provision relevant to the subject was limited to an article requiring that those fees remain at the (previously existing) level of $775 per month for the duration of the collective agreement.

202. There can be no doubt that an increase in service fees during the currency of the collective agreement, would, on its face, have been contrary to the terms of the agreement. Any such increase (at least in respect of brokers who were bargaining unit members) might have been the proper subject of a grievance and the rights conferred by the collective agreement could obviously have been enforced at arbitration. One might reasonably have expected the terms of the collective agreement to prevail and prevent even an increase clearly within the range otherwise contemplated by the service agreement.

203. It seems equally likely, however, that, even during the currency of the collective agreement, brokers (at least those who were not covered by the collective agreement) were not stripped of all of the commercial rights and obligations conferred upon them by the service contract. Any dispute of that sort could have been the subject of civil proceedings in the courts.

204. The question of how to enforce individual rights conferred upon bargaining unit members under the service agreements after the expiry of the collective agreement and the unilateral alteration of terms and conditions of employment by the employer is one which is less than certain. Furthermore, it may well be one this Board need not resolve in determining whether the employer has bargained in good faith. One might have thought, particularly in view of the employer’s stated intention to continue to apply the terms of the service agreements, that the rights of parties to those agreements might be capable of vindication in the civil courts. However, the Court of Appeal, at least in the specific factual context in which the issue arose before it, has concluded that the courts are without jurisdiction to rule on the propriety of the employer’s increase to service fees under the service agreements. A little historical background will assist.

205. Unfortunately and as already acknowledged, the duration of these proceedings has been impressive. During that period, the employer’s position as to the legal effect and status of the service agreements has undergone significant refinement. It will be recalled, for example, that in January of 1997, company counsel, Mr. Zoldhelyi, was writing to Mr. Dagher in the following terms:

As far as I know, the Collective Bargaining Agreement has not overruled the Service Agreement. … Accordingly we can still deal with the Service Agreement and its contents and I do not accept you as the legal representative for these parties since it is not strictly under the Labour Relations Act.

206. Approximately a year later (after these proceedings were well under way and after the collective agreement and freeze period had expired), the employer increased the service fees and the union made what is now the last of the three applications which are the subject of this decision. However, at that time, the union also sought to restrain the service fee increase by way of an application for interim relief which was heard (and dismissed) by this panel. At the hearing into that matter the employer advanced a position consistent with that of the views expressed by Mr. Zoldhelyi as cited above. The employer argued quite strenuously that there were aspects of the service agreements between the company and its brokers which were quite simply beyond the purview of the Labour Relations Act. And while it did not quarrel that the issue of bad faith bargaining was properly before this Board, it asserted that any alleged violation of the terms of a service agreement would have to be the subject of civil proceedings. It was not for this Board to determine and enforce the rights of parties to a commercial contract such as the service agreement.

207. It must be stressed, however, that the Board’s dismissal of the union’s application for interim relief was premised on an assessment of the relative harm which would result from granting or denying the application. The Board was satisfied that the union had made out an arguable case and also understood the employer’s (then) assertion that the Board ought not to engage in an interpretation of the rights and obligations set out in the service agreement which it (then) saw as a private agreement between the company and individual brokers.

208. Following the denial of the interim relief sought (and premised no doubt to some extent on the employer’s jurisdictional protestations) a civil action was commenced against the company in the Ontario Court (General Division, as it was then known). The union was not the applicant in those proceedings. The applicants were brokers (or lessees of same) who sought to challenge the service fee increase. They included, among others, members of the union executive (Messrs. Dagher and Khoury). They were represented by union counsel.

209. The issue was clearly not viewed as complex by Brennan J. who, on September 25, 1998 issued a concise endorsement granting the application. He found that the unilateral increase to the service fees was contrary to the terms of the service agreement. The issue of the propriety of the increase was dealt with in the following straightforward fashion:

… The agreement includes a provision whereby the respondent is entitled, without consent of the brokers, to increase the brokerage fee annually. The increase is limited to 10% or an amount equivalent to the increase in the consumer price index for Toronto for the year in question, whichever is lower.

No increase was imposed until February 1, 1998, when the respondent announced an increase to $925.00 per month. That is approximately a 20% increase. The evidence satisfies me that the increase allowable under the consumer price index would be approximately 1%. The respondent takes the position that it is entitled to a cumulative increase, that is, to amounts equivalent to the year-by-year increases in the consumer price index between 1988 and 1998.

In my view, that is contrary to the plain meaning of the words of the agreement…

210. It is perhaps noteworthy that despite the position it had previously advanced, the employer, obviously unsuccessfully, asserted before Brennan J. that the court was without jurisdiction to decide the application.

211. Thus, when the issue of the propriety of the service fee increase was argued before this Board (in late 1998 supplemented by further written submissions in early 1999), the increase had been in place for approximately one year and the judicial pronouncement as to its impropriety had been extant for almost half that period. The employer, although it did not indicate that it had sought or obtained a stay of Brennan J.’s ruling, advised us that the matter was under appeal.

212. In its argument before us, however, the company asserted that the court was without jurisdiction to rule on compliance with the terms of the service agreement (a position which, as we have already indicated and will shortly detail, was ultimately vindicated by the Court of Appeal). The level of service fees was frozen during the life of the collective agreement by virtue of Article 16.1 thereof. Thus, for example, it would have been a violation of the collective agreement for the company to have raised those fees during its currency (even if the increase had otherwise been restricted to the level contemplated by the service agreement). The consequence of that treatment was that the issue of the level of service fees was no longer a service agreement issue; it was transformed into a collective bargaining issue (at least in respect of those brokers covered by the collective agreement). The level of service fees is thus merely an issue to be negotiated by the collective bargaining parties – it is no longer governed by the terms of the service agreement.

213. So long as the terms of the collective agreement were in place (or frozen by statute), we find the employer’s analysis to be useful. It does not of course follow that the collective bargaining regime or the collective agreement had entirely displaced the service agreement or that the latter had somehow ceased to exist. The two clearly continued to co-exist. But to the extent that there may have been operational incompatibilities between them, terms and conditions of employment as set out in the collective agreement would have to be seen to prevail in respect of bargaining unit members. The situation is perhaps not as clear, however, once the parties left the freeze period and entered the realm of strike/lockout and unilateral employer action (particularly where the latter included a commitment to preserve and apply the terms of the service agreement).

214. The decision of the Court of Appeal issued on November 5, 1999 (now reported, Emile Dagher et al. and McDonnell-Ronald Limousine Service Limited (1999), 1999 CanLII 9305 (ON CA), 55 C.L.R.B.R. (2d) 56). The legal analysis contained therein proceeds from the line of cases that are linked to the decision of the Supreme Court of Canada in Weber v. Ontario Hydro (1995), 1995 CanLII 108 (SCC), 125 D.L.R. (4th) 583. It merits being considered at length:

215. With respect to the applications judge, Weber v. Ontario Hydro (1995), 1995 CanLII 108 (SCC), 125 D.L.R. (4th) 583, [1995] 2 S.C.R. 929, 95 CLLC ¶ 210-027, 24 O.R. (3d) 358n, 183 N.R. 241, 30 C.R.R. (2d) 1, 12 C.C.E.L. (2d) 1, 24 C.C.L.T. (2d) 217 is not distinguishable from this case. The fact that the service agreement predated the collective agreement is of no significance. The contractual terms respecting the brokerage fees in the service agreement ceased to govern the parties once the appellant entered into the collective agreement with the respondents' bargaining agent. That collective agreement negotiated with the union as the official bargaining agent of the respondent employees placed the parties to this agreement squarely within the jurisdiction of the OLRB. This is so even after the collective agreement has expired in accordance with its terms where, as here, the parties were negotiating a new collective agreement and one of the parties alleged that the other engaged in unfair labour practices under the Act. In the case in appeal, the central issue that arose following the expiry of the collective agreement was whether the employer violated its obligation to bargain in good faith by imposing the 20% fee increase under the service agreement. This is a matter that was within the exclusive jurisdiction of the OLRB to decide under s. 96 of the Act.

216. It was a mistake for the applications judge to entertain this matter. He could not resolve the overall dispute between the parties and essentially was being asked to determine a subsidi­ary issue in a labour conflict that was already before the OLRB, a fact that was conceded in effect by the respondents' counsel. Under s. 114(1) of the Act, the OLRB has exclusive jurisdiction to exercise power conferred upon it under the Act and to deter­mine all questions of fact and law that arise in any matter be­fore it. The actions or decisions of the OLRB are final and conclusive for all purposes.

217. To properly understand the decision of the Court of Appeal, it is perhaps necessary to resist the temptation of an overly broad interpretation. It appears to have been the fact of outstanding and ongoing legal proceedings at this Board which contributed significantly to the Court of Appeal’s conclusion about the jurisdiction of the applications judge. Certain matters or issues were clearly not dealt with by the court. For example, the court appears to have neither been presented with nor considered the peculiarities of the nature of dependent contractors and the web of employment and commercial relationships associated with that type of enterprise.

218. Neither did the court conclude that the service agreement has been overtaken for all purposes and time. For (perhaps the most obvious) example, had one of the bargaining unit members continued (after the expiry of the collective agreement and the freeze) to operate under the terms of the service agreement but declined to pay the fees or to comply with some other fundamental term thereunder, we do not read the decision of the Court of Appeal as precluding the employer from pursuing its civil remedies. (Indeed, in this regard the decision of the Supreme Court of Ontario in MacIntosh Limousine Service Ltd., 90 CLLC para. 14,016, a matter involving different parties in the same industry, may be instructive.)

219. In any event, the difficult policy laden questions of the precise parameters of the relationship between and availability of common law remedies and access to administrative tribunals in cases involving dependent contractors in the wake of Weber and its progeny need not be determined with any degree of comprehensive precision in the instant case. For whatever else may be said of the route traveled to arrive at the result (a rather circuitous one perhaps for the company), there is (now) no issue between the parties as to this Board’s jurisdiction to determine whether the employer breached its obligation to bargain in good faith. And that is so even and to the extent it may be necessary for the Board to examine the employer’s conduct through the prism of the terms of the service agreement.

220. The Board does not see its principal function as enforcing the terms of the service agreement. We are, however, mindful of the history, purpose and significance of that agreement in the dealings between the employer and its brokers and dependent contractors. The regulation of the level of service fees under that agreement was displaced by the provisions of Article 16.1 of the collective agreement (although in view of the employer’s continuation of its own restraint in altering the level of those fees, there do not appear to have been any practical operational incompatibilities between the two regimes). That article required that the level of those fees not increase during the term of the agreement. That freeze was in turn preserved by the statutory freeze associated with the expiry of the collective agreement. Once the collective agreement and the subsequent freeze expired, the employer opted to, in its word, “continue” to apply the terms of the service agreement (“revive” may have been a more accurate description at least in respect of certain of the service agreement provisions). Concurrent with that announcement, the employer gave notice of its intention to increase the fees payable under that agreement by some 20%. The increase was implemented approximately one month later as announced.

221. The question which we must answer is not whether that increase was contrary to the terms of the service agreement. We must determine whether the implementation of that increase amounts to a violation of the employer’s duty to bargain in good faith. We are satisfied that it does not.

222. The level of service fees was undoubtedly a proper subject for collective bargaining. The parties were free to propose provisions in relation to that subject which differ or even contradict the terms of the service agreement. Indeed, that was the precise result of the last round of negotiations which yielded a freeze in service fees despite a simple employer discretion to implement certain increases under the provisions of the service agreement.

223. Similarly, in the most current round of negotiations, it was open to either party to propose a level of service fees either lesser or greater than that otherwise contemplated or permitted by the service agreement. That is precisely what the employer did. And it was that very proposal tabled at negotiations in December of 1997 which, following the expiry of the statutory freeze, the employer implemented in February of the following year.

224. There is nothing on the face of these events which suggests the conclusion that the employer has failed to make reasonable efforts to conclude a collective agreement. Indeed, as far as the reasonableness of the bargaining proposal ultimately implemented, it was not disputed that the level of service fees in question was comparable to that of one or more of the employer’s chief competitors.

225. Thus, the only attack on the employer’s conduct resides in the union’s assertion that the proposed and implemented service fee increases are “unlawful” under the terms of the service agreement and therefore constitute bad faith bargaining.

226. The Board is unable to make this leap. For even if the union is correct in its claim that the increase imposed was contrary to the terms of the service agreement, we are still not driven to the conclusion that the employer has thereby bargained in bad faith.

227. Once the statutory freeze expired the employer was free to change the terms and conditions of employment. One such term was the level of service fees. So long as terms and conditions of the collective agreement were preserved by statutory freeze, the level of service fees could not be increased. Once the freeze expired they could, subject only to a finding that any such increase constituted bad faith bargaining. The fact that the level of the increase well exceeded the amount allowable under the service agreements (which did not even form part of the collective agreement), does not mean that the employer was in breach of its statutory obligation to bargain in good faith with the union and make every reasonable effort to make a collective agreement.

228. It is simply an event like any other that must be evaluated in the context of the employer’s overall behaviour. At most, the fact that the increase was dramatic and the subject matter of increases was a bargaining table issue may be seen as some evidence of a lack of commitment by the employer to the collective bargaining process, an attempt to undermine the union’s role as a bargaining agent or, perhaps a step taken with the intention of exacerbating tensions or poisoning the well of negotiations. However, we are unable to make those findings.

229. As noted, the employer offered an entirely plausible explanation for the increase. The union was unable to contradict or weaken that explanation.

230. The union may not like the increase. Its members may feel it to be unwarranted. It may be contrary to the terms of the service agreements (on this point we would be inclined to agree with the applications judge), but none of that makes it a breach of the statutory duty to bargain in good faith.

231. The combined effect of this decision and that of the Court of Appeal may leave bargaining unit members who are subject to service agreements perplexed about the resulting status and enforceability of their rights under those agreements.

232. But however clear it may appear to this Board (as it did to the applications judge) that the employer’s increased service fees are inconsistent with the terms of the service agreements, the question of the current status and enforceability of individual rights under those agreements is not one which is before this Board.

233. For that was the question placed squarely before the applications judge. In that regard and with the greatest of respect to the learned members of the Court of Appeal, the Board must confess to some perplexity at aspects of that Court’s characterization. At page 62 of its decision the Court observed that:

“In the case in appeal, the central issue that arose following the expiry of the collective agreement [and, presumably as well, the freeze period] was whether the employer violated its obligation to bargain in good faith by imposing the 20% fee increase under the “service agreement”.

232. There can be and is no question that whether the employer violated its duty to bargain in good faith under the Labour Relations Act is the question that falls to this Board to decide. That question, however, appears to us distinguishable from the question which was before the applications judge.

233. However, there may well be compelling policy reasons to at least defer any Court determination of the different question regarding the status and enforceability of individual rights under the service agreements so long as litigation is in full progress before this Board on the bad faith bargaining issue.

234. What the applications judge might have done was to rule that the matter was premature or otherwise not ripe for resolution. He could have stayed the matter pending this Board’s determination of the section 17 allegations.

235. If that alleged breach was upheld by this Board and, perhaps depending on the remedy, the matter before the courts may well have become moot. If it was not, or if no corresponding remedy was forthcoming, the applicants might then have returned to seek the enforcement of the terms of the service agreement. Perhaps on appeal, if a similar option had been presented to the Court, the possibility of the employees’ return would be clearer. As it is, however, it seems to us that there may be room in the Court of Appeal’s reasons (which relied heavily on the fact that this matter was then pending before this Board) for the matter to receive further judicial scrutiny.

236. That, however, is for the courts to decide if and when they are asked. The possibility that there may now be no remedy for what would appear to be a breach of the service agreements (which we have already stated were not displaced for all time and for all purposes by the collective agreement or the collective bargaining regime) is not a basis upon which we can conclude that section 17 has been breached.

237. Both before and since the seminal pronouncement of the Supreme Court of Canada in McGavin Toastmaster (1975), 1975 CanLII 9 (SCC), 54 D.L.R. (3d) 1, employees, employers, trade unions, practitioners, adjudicators and the judiciary have travelled the sometimes uncertain territory where collective bargaining regimes have replaced and displaced the common law. It is now generally accepted that the trappings, concepts, constructs and legal theories of the common law of individual employment contracts may have little useful place in the sphere of collective bargaining.

238. There are instances, however, where the demarcation points between the two regimes may be less than apparent. A context as the present one is a prime candidate for such imprecise borders. From this perspective, the marriage of collective bargaining with a complex web of commercial arrangements between various players including a range of dependent contractors is perhaps inherently problematic.

239. Within the collective bargaining sphere, however, the level of service fees is clearly a bargainable issue not subject to the constraints of common law commercial relationships. The union may bargain more favourable rates; the employer may seek more onerous ones. And while there may be continuing obligations on the union and employer to bargain in good faith, the employer’s decision to propose increased service fees during bargaining and to implement same once it is entitled to unilaterally alter terms and conditions of employment simply cannot be seen as a violation of its bargaining obligations.

240. If, by so doing, it has breached the terms of a private commercial contract, it is up to a party to that contract to seek its enforcement. It is not for the union to effectively seek to enforce private non-collective bargaining commercial contracts in the guise of a bad faith bargaining charge.

241. In the result, we are not persuaded that the employer has violated section 17 of the Labour Relations Act, 1995.

242. Subsequent to the preparation but prior to the release of these reasons, the union filed further submissions along with an affidavit executed by Demitrios Pyrgos.

243. Mr. Pyrgos testified in these proceedings in relation to one of the disciplinary events which the Board elected not to review in any detail. It is for that reason that his name appears nowhere else in this decision. We have neither referred to nor relied on his evidence in coming to the conclusions we have in this decision. Indeed, Mr. Pyrgos’ evidence was restricted to a specific event which can only be described as marginal in relation to the events giving rise to these proceedings.

244. We have reviewed Mr. Pyrgos’ affidavit and the union’s submissions and we are not persuaded that either are material to the result in these proceedings.

245. The affidavit attests to conversations Mr. Pyrgos had which involved Messrs. Leimonis, Gomez and Stone as well as separate conversations he had with Mr. Papaioannou.

246. The affidavit discloses that at some unspecified time Mr. Pyrgos discussed his evidence in advance of giving it. Messrs. Leimonis, Gomez and employer counsel were involved in that discussion. There is the suggestion that, on Mr. Leimonis encouragement, Mr. Pyrgos tailored his evidence to conform with Mr. Leimonis’ desires.

247. The affidavit also attests to conversations Mr. Pyrgos had with Mr. Papaioannou both prior and subsequent to the meeting with Leimonis. Mr. Pyrgos claims that, after giving his evidence, Mr. Papaioannou gave him approximately $300.00 worth of vouchers and told him that “he (Papaioannou) was going to be taken care of by Nick Leimonis”.

248. We are not persuaded that this affidavit or the union’s submissions in relation to it warrant any change to the disposition of this matter.

249. As the affidavit may, ultimately, do nothing more than tarnish the credibility of its deponent, it is perhaps fortunate that the Board has not placed any reliance on that evidence. In terms of the suggested link between the employer and the termination application, the affidavit provides nothing in the way of direct reliable evidence to establish the asserted link.

250. Had this information been advanced or available during the course of the proceedings, it may well have altered the course of some evidence and cross-examination. We are not persuaded, however, (and whatever other independent steps might be taken) that it warrants reopening or otherwise impacting on the conclusions arrived at in this case.

VII Conclusions and Remedies

251. In summary, we have found that the employer has violated sections 70 and 72 of the Labour Relations Act, 1995 by

(a) in relation to the “job action” events - refusing to recognize the union as the lawful representative of bargaining unit members and by imposing a two day suspension on Emile Dagher;

(b) the direct and indirect role it played in the termination of Jacques Ohannessian’s lease with Ananiadas; and

(c) failing to recognize and apply the procedural and substantive provisions of the collective agreement in the administration of discipline imposed on bargaining unit members.

252. We turn, finally, to a consideration of the appropriate remedies in view of

the violations we have found.

253. The employer’s approach to disciplinary matters under the collective agreement was troubling. So was the union’s. In the circumstances which we have earlier described in greater detail, we are not persuaded that any remedial response, apart from this declaration that the employer’s conduct has been unlawful, is warranted. With respect to the other violations, damages are the appropriate remedy. The company is hereby directed to pay damages to the union in respect of the following:

(a) Emile Dagher is to be compensated for all losses resulting from the two day suspension imposed on him in relation to the “job action” events discussed above; and

(b) Jacques Ohannessian and Sam Dagher are to be compensated for all losses flowing from the termination of Mr. Ohannessian’s lease agreement with Mrs. Ananiadas.

254. All issues pertaining to the quantification of these damages are remitted to the parties. The Board shall remain seized in the event the parties cannot resolve these matters.

255. With respsect to the termination application, the parties will be contacted by a Labour Relations Officer to arrange for an expeditious counting of the remaining ballots.

“Bram Herlich”

for the Board

CONCURRING DECISION OF BOARD MEMBER J. A. RONSON; October 12 , 2000

1. I have only a few comments to make about the circumstances surrounding the discipline imposed on Mr. Dagher and the finding of an unfair labour practice with respect to the “job action” events.

2. It is not often in Board matters that you have the opportunity to watch the chickens come home to roost, but such was my opportunity in this case. In one of the earliest of the taxi cases to come before the Board, I dissented when my colleagues found the applicant to be a trade union despite the fact that its incorporating documents contained the expressed intention to compete with the employer in the taxi business. Then, and now, my concern was that such an object could only act to foul any collective bargaining relationship having to deal with it.

3. And the present case is the proof. To the knowledge of the employer, Mr. Dagher used his protective skin as a union official to gain access to the GTAA in order to try and persuade it to strip the employer of its business licences and give them directly to his bargaining unit members. The reaction of the employer to one of its employees trying to put it out of business was predictable. It could only but taint its subsequent dealings with Mr. Dagher as he drew his protective union cloak even tighter around himself.

4. I can only say again that such a scenario should never be allowed to happen by the Board.

“J. A. Ronson”

PARTIAL DISSENT OF BOARD MEMBER D. A. PATTERSON; October 12, 2000

1. While by and large I join with my colleagues in their findings and disposition of this case, there are some of those findings from which I must dissent. Like my colleagues I have had to determine my findings and conclusions from the evidence we heard, recorded in our notes, and witnessed first hand.

2. Having weighed all the evidence I recorded and absorbed over so many days and months (over 1000 pages of hand written notes, in excess of a hundred exhibits), I come to the following conclusions.

3. The union has provided no direct evidence to establish that the employer played a direct role in the formation and circulation of the termination application brought by David Peever and Nick Papaidannou. I believe these applicants acted independently of the employer in their quest to have the bargaining rights of the representative union terminated. I suspect that their motivation had a great deal to do with the leadership of the local union and the personalities involved. During this hearing it was no secret that the applicants to terminate the bargaining rights and the local union president were not brothers in arms during the relevant periods.

4. However, I concur with my colleagues as to the relevance of the Pigott Motors decision to this case. That case provides some explanation for employee motivations in certain circumstances. I am convinced that the employees in this bargaining unit would have signed anything to ensure they did not have the wrath of the employer coming down on them. Since the certification of the union, employees in this unit have been so embattled and shell shocked as a result of the employer’s attitude and approach to collective bargaining and employee rights, that the only relief they could realize was to sign the termination application. Many would have done so simply to avoid subjecting themselves to the type of treatment they had seen the employer visit on their colleagues who had chosen to take on leadership roles within the union. Eventually, bargaining unit employees chose to do whatever the employer asked and simply kept their heads down and out of the way of Nick Lemonis, his legal counsel or dispatchers or even certain brokers.

5. This case was demoralizing for the writer from the point of view of Labour Relations in the Province of Ontario. I find it painful to contemplate who would have the courage to declare victory or justice done in this case. This case seemed more like open warfare where these parties were attempting to see who could bleed the most and still remain standing.

6. Considering this industry serves the travelling public, it provides a service in a high profile environment where drivers are delivering high profile customers to and from the airport. It gives me pause to ponder how the paying public utilizing this service could have been well served during this pitched battle between these two combatants. Both parties have leveled and heaped some of the worst vitriol on each other I have ever seen or witnessed first hand. This kind of distrust and hatred makes me wonder what kind of progress we have made over the last 32 years.

7. At the end of the day, considering the volatile environment in which these employees worked it is a wonder consequences were not more severe during this period of unrest. I hesitate to comment on the mental scars left on these employees form the point of view of their experience as union members. I can imagine some of these drivers originally believed that the union was the way to protect their rights and the panacea they sought in dealing with their employer. The employees embarked on a course that turned into a labour relations nightmare.

8. From the moment of certification, the employer opted to deny the union, to threaten it, and to refuse to adhere to the certificate issued by the Board. The employer chose to intimidate the executive of the union, punish its officers, demean its elected representatives, and refuse to comply with even the most common form of acceptance of the employees’ wishes. The cumulative effect of the employer’s conduct can leave no illusions about what things must have been like in the trenches day to day between these parties. I draw the most negative of inferences from the employer’s approach and attitude.

9. The union’s inability to produce witnesses who would come forward to give evidence in support of its allegations is consistent with the conclusion that employees in this bargaining unit were openly scared to stand up against the employer

10. I do not believe nor am I convinced that all the allegations made by the union were fabrications simply made up by the union executive or its president. But unfortunately, without the affected employees coming forward to testify to these allegations, the Board had no alternative but to dismiss them; there was simply no direct evidence to substantiate them. The Board cannot and should not make any finding of fact in absence of that first hand evidence. The Boards’ discretion does not extend to finding breaches of the Act in a vacuum. Thus, and despite the appearances to the contrary, the Board could not vindicate these allegations without the evidence.

11. In view of all of the above, my remedial response to the violations which have been found would have differed from that of my colleagues in one material respect. I am of the view that the Board ought to direct the taking of a further representation vote. I would have set aside the vote that was conducted in this matter. Given the context of turmoil in which that vote was held I simply cannot accept that it was truly reflective of employee wishes.

The only reasonable time to determine those wishes would be after the affected employees have some opportunity to properly digest the Board’s decision and remedial response.

12. As an employee member of the Board I have always attempted to remain objective in my interpretation of the legislation which the Legislature passed, there have been times when I did not agree with the proposed changes because of the potential impact those changes would have on the labour relations community in the province. I believe this Act's original intent was to bring balance between the employer/employee community. But alas, it is not my duty or responsibility to judge what was in the mind of the Legislature when it drafted the existing legislation. I swore to interpret the act in the best interests of the labour relations community of this province. In that context it is indeed ironic that my remedial response is, I believe, in total accord with current legislative policy. In the name of workplace democracy, a fresh vote would clear the air for all parties concerned. I would order that vote, and would permit all existing employees as well as former bargaining unit employees to exercise their franchise. I would insure that this vote be held away from the employer’s premises. Once all the employees were fully aware of the Board’s findings, the whole matter should be put in the hands of the people most affected by the actions of the union and the employer. Once this decision was made both the union and the employer would have to abide by the results of the ballot box.

13. If the applicant was to lose the vote in this new vote then it should walk away, realizing the employees either don’t want a union or simply don’t want this particular union or its leadership. Under the current legislation, the Board no longer inquires into the voluntariness (which may be affected by employer conduct) of termination applications.

14. If the employees chose the union, it would then have a mandate to represent them and the employer would be required to deal with the union and its new mandate. The employer might then be less likely to make any attempt to undermine the statutory or negotiated rights of its employees. The union, in turn might be less reluctant to attempt to appease the employer or at least to make reasonable accommodations. More importantly, it might become more vigilant in its approach to representing its members. Both the union and the employer might be better served to concentrate their respective energies on serving the paying public customers.

15. This whole shameful exercise has done nothing to enhance the relationship between the employees and the employer. The union may well lose its bargaining rights after the vote I would direct. If so, the employees will be left at the hands of the employer, who, based on what this Board has seen and heard in these proceedings, may have considerable distance to travel to gain back the respect of those employees. The success of the employer’s business is based on their work.

16. The employer, one way or another must strive to regain its credibility with those employees. These employees are not indentured nor should they be treated as such.

“D. A. Patterson”