2687-98-R; 3150-98-U United Steelworkers of America, Applicant v. Baron Metal Industries Inc., Responding Party.
BEFORE: Christopher J. Albertyn, Vice-Chair.
APPEARANCES: Mark Wright, Charlene Wiseman, Brando Paris and Jennifer Keating for the applicant; David J. Bannon, Caroline Ursulak, Scott Bates and Eric Cella for the responding party.
DECISION OF THE BOARD; July 10, 2001
1This decision concerns requests for reconsideration by the applicant union (“the union”) and by the responding employer (“the employer”/“Baron Metals”) of a decision issued on May 4, 2001. The requests are made pursuant to the provisions of section 114(1) of the Labour Relations Act, 1995 (“the Act”). This decision deals also with issues arising from paragraphs 163 and 164 of the May 4 decision in which the possibility of awards for damages to the union and particular employees was considered. The employer has a preliminary objection to any consideration of damages, which this decision addresses.
2The May 4 decision rejected a suggestion by the employer to bifurcate the hearing between determination of liability and determination of relief. That decision was challenged as part of the employer’s reconsideration request. I address my reasons for the refusal to bifurcate the hearing.
3I organize this decision under the following headings: the employer’s original request to bifurcate the hearing; the employer’s motion to preclude any consideration of the union’s (and the employees’) damages claims; reconsideration generally; the union’s reconsideration request; Baron Metals’ reconsideration request.
Bifurcation of the hearing
4During argument, as explained in paragraph 133 of the May 4 decision, the employer sought to have the case dealt with on the merits first, and then, once a decision had been issued, to address any question of the appropriate remedy. The union resisted that suggestion at the time. I indicated at the hearing that I would consider the suggestion, but the employer should nonetheless present its argument on the question of remedy, as well as liability. The matter proceeded on that basis. The employer’s argument on some of the relief sought by the union was presented and the employer had an opportunity (in fact, was prompted by the union) to respond to all of the relief sought by the union. As a consequence, when I made the decision not to bifurcate the hearing and to determine liability and remedy together, I did so on the basis that an opportunity had been given for the remedies to be argued.
5I have not previously explained my decisions not to bifurcate the hearing. This is a certification application. It has been on the go since November 1998. Normally a representation vote occurs within 5 days of a certification application and the whole matter is resolved within a matter of weeks. Certification applications are relatively urgent. Bifurcating the case would have resulted in still further delay. An adequate opportunity had been given to the employer to present argument on remedy. If liability were determined without a remedy, given the nature of the case and the need for specific performance-type remedies, a delay might have impaired the effectiveness of the remedy.
The employer’s motion to preclude any consideration of the union’s (and the employees’) damages claims
6The employer requested a bifurcation of the hearing between the determination of liability and the determination of remedy. I did not accept that method of proceeding. The employer suggests that, having closed the route to a bifurcated hearing, I should not be giving the union a second opportunity to argue its claim for general damages, as contemplated in paragraphs 163 and 164 of the May 4 decision.
In this case it is arguable that the employees in the bargaining unit on November 16, 1998 were deprived of the opportunity of participating freely and fairly in the certification process and of freely expressing their views in the representation vote on that date. Under section 2 of the Act the first purpose of the Act described is: “To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees” [emphasis added]. Employees have a right under the Act to freely decide whether they want to be represented by a trade union. That right was denied in this case, ultimately on account of the choice made by the company to employ Kuti and Kodi for an improper purpose. Arguably the employees who are still in the employment of the company, who were eligible to vote on November 16, 1998, have suffered a loss for which arguably they ought to be compensated. This issue was, however, insufficiently addressed by the parties in argument. Should the union wish to claim damages under this heading, it may, within 30 days of the date of this decision, request the matter be re-listed for hearing to address the issue. When making the request, the union should provide details of the nature of its claim for the affected employees, with reference to the authorities it will reply upon. The company should respond within 5 days, and provide details of the authorities it will reply upon. I remain seized to hear the matter.
Each of Mr. Sathasivam, Mr. T. Perampalam, Mr. L. Perampalam and Mr. Nagarajah suffered fright, fear and considerable anxiety as a result of the conduct of Kuti and Kodi, for which I have found the company to be ultimately responsible. This issue was, however, insufficiently addressed by the parties in argument. Should the union wish to claim damages under this heading, it may, within 30 days of the date of this decision, request the matter be re-listed for hearing to address the issue. When making the request, the union should provide details of the nature of its claim for the affected employees, with reference to the authorities it will reply upon. The company should respond within 5 days, and provide details of the authorities it will reply upon. I remain seized to hear the matter.
The employer says I should either have allowed bifurcation properly, separating all issues of remedy from the question of liability, or I should not have done so at all. What has happened now, it says, is that the union has a second chance to argue the remedy it seeks in damages. That, argues the employer, is unfair and a breach of the rules of natural justice. No authority was provided to support this proposition.
7The employer argues the union had an adequate opportunity to present what evidence and argument it had on the damages it claimed, and it should not be allowed a second chance.
8In fact, during argument before the May 4 decision, the union presented substantial argument and authority for the grant of damages. The employer replied to the union’s argument on damages. It was not through lack of union argument and employer response that I made the decision to defer consideration of the issue and to require additional submissions. My reasons for doing so concerned the novelty and peculiarity of the issues in this case and the fact that, barring two default decisions in which no employer submissions were made, the question of these types of damages in the context of a section 11 application seems not to have been previously considered by the Board. Furthermore, as explained below, I have limited the union’s damages claim in a manner which neither party could likely have anticipated. The union was seeking damages which arise potentially from the parties’ failure to conclude a collective agreement. I have not accepted that basis for determining the union’s damages. The parties need an opportunity to address the limited basis upon which I will consider any damages being awarded.
9Claims for damages to individual employees arising from a thwarted union organizing campaign are not common. Claims for damages in the circumstances of the loss of a fair opportunity to vote in a Board ordered representation vote have not been considered previously. In circumstances such as occurred in this case the Board would most likely, in years gone by, have automatically certified the union. The Board no longer has that power. The new legislative regime has made it necessary to explore what remedies will appropriately serve to achieve the result of a fair second representation vote in which affected employees get a reasonable opportunity to express their wishes freely. The issue of damages, in the context of this case, was novel. It needed a fuller, and yet more specific, elaboration than was afforded when argument was presented by the parties prior to the May 4 decision.
10The Board will reconsider its decisions if important issues of Board policy are at stake. The questions of whether any damages should be granted to the union, and, if so, in what amount, involve important issues of Board policy. They deserve more detailed consideration and analysis. I decided not to make a determination on damages in the May 4 decision because, unlike the other remedies, which have a clear practical purpose and impact, the question of damages and quantum are less pressing. A certification application is a relatively urgent matter. It is dealt with swiftly by the Board. A result should flow quickly from such applications because they are necessarily disruptive of the normal routines of working life for workers and management. There is a sense of anticipation and uncertainty as to the outcome. The relief, besides damages, in the May 4 decision is all geared to the holding of a relatively quick representation vote so that the union’s certification application can be determined and a result known. The question of damages is not contingent on that process. For all of these reasons the questions concerning damages were left for later determination.
11The union argues the approach followed in the May 4 decision was consistent with the Board’s practice to separate the determination of quantum from liability, as in Forintek Canada Corp., [1986] OLRB Rep. Apr. 453, at 481, ¶59; Consolidated Bathurst Packaging Ltd., [1983], 4 CLRBR 178 (OLRB), at 227, ¶55. The employer distinguishes what I did in the May 4 decision from what was done in those cases. There overall liability was determined and quantum was left for later consideration. Here, the question of damages was argued and a second opportunity is being given to argue it. I agree there is that distinction. However, I am not persuaded the approach in the May 4 decision is either wrong or unfair to the employer. As is clear from my comments herein, the damages which were sought by the union are different from those I have determined might be considered under paragraph 163. What is prescribed in paragraph 163 has not previously been considered by the Board. It is a novel issue. So too is the nature and extent of the damages contemplated in paragraph 164.
12The opportunity to argue the question of damages afresh is an opportunity for the employer too. I did not hear the employer suggest at this juncture that I should determine the question of damages, if any, without further argument.
13The concept of natural justice has no hard and fast definition. It has been described as “fair play in action”. The requirements depend on the circumstances of each particular case: Nicholson v. Haldimand Norfolk (Regional) Police Commissioners, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311, quoting Furnell v. Whangarei High Schools Board, [1973] A.C. 660 and Russell v. Duke of Norfolk, [1949] 1 All E.R. 109. In this matter I am satisfied that fairness is done to both parties by allowing the issues raised in paragraphs 163 and 164 to be addressed afresh.
14For all of these reasons, I am not persuaded there has been any injustice to Baron Metals by requiring the questions concerning damages to the union and the four named employees in paragraphs 163 and 164 of the May 4 decision and quantum be dealt with subsequently. I therefore refuse the employer’s motion to deny the union the opportunities which were stipulated in those paragraphs.
Reconsideration generally
15The limitations upon requests for reconsideration are well-known. The Board reconsiders its decisions in limited circumstances. It balances the public interest in the finality of Board decisions against the need to correct decisions which are erroneously made, or which were made on the basis of inadequate or misleading information, or by default. The limited scope for reconsideration is described in Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320, at 324, ¶11; Ellis Don Limited, [1989] OLRB Rep. Mar. 234, at 235, ¶5; John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096, at 1097, ¶5; The Doctor’s Hospital, [1983] OLRB Rep. Apr. 493, at 496, ¶2; Roy Construction and Supply Company Limited, [1983] OLRB Rep. May 716, at 716, ¶1.
16The grounds on which reconsideration may be sought can be summarized as being: the request raises important issues of Board policy which have not been addressed adequately or at all; a party wishing to make a representation has not had an opportunity to do so previously; relevant evidence which could not previously have been obtained by reasonable diligence has become available and would likely affect the decision; or an obvious error has been made by the Board. The Board’s approach is stringent − in the interests of finality, it will reconsider its decisions only when that is clearly required.
17The May 4 decision made some extensive orders of specific performance which require some degree of supervision. In the last of those orders, at sub-paragraph 13 of paragraph 165 of the May 4 decision, I remained seized to address any issues of dispute arising from the implementation of the decision. Some of what the parties seek are variations of orders made on grounds that they are not workable in their present form and need amendment. The usual limitations on requests for reconsideration do not apply to such requests for practical variation of the orders made. The criteria to be applied in deciding whether to vary an order that something specific be done are whether its implementation is causing unnecessary hardship and if the purpose of the order can be better achieved in a less intrusive way.
18Although all the parties’ submissions take the form of reconsideration requests, parts of them concern requests for variation of orders on practical grounds. They are not, strictly-speaking, requests for reconsideration. I will deal with them as part of my jurisdiction to ensure that issues of dispute concerning the implementation of the May 4 decision are addressed.
The union’s reconsideration request
19There are three parts to the union’s reconsideration request. Firstly, it contends that any damages payable to the union arising from the Board’s conclusions in paragraph 163 of the May 4 decision should not have been restricted to employees who were in Baron Metals’ employ on November 16, 1998. The union suggests that any damages should apply to all current employees of Baron Metals. Secondly, it argues that the reimbursement of the union’s organizing costs, in paragraph 140 of the May 4 decision, should have included the union’s legal costs, including those incurred consequent upon these applications. Thirdly, the union suggests the six month time period within which the union may initiate a fresh representation vote (under paragraph 141) should commence from the date on which there is full compliance with the Board’s decision by Baron Metals, rather than from the date of the decision, as provided in paragraph 141. I consider each of these submissions in turn.
Damages for all of the employees
20The union would like to be able to argue that the damages to which the employees are entitled as a consequence of the employer’s unfair labour practice are based upon the loss of an opportunity to have a collective agreement. The union urges that the on-going impact of the employer’s unfair labour practice should be taken into account. With that foundation for the union’s damages, it would make no sense to limit the benefit only to employees who were employed on November 16, 1998.
21I agree with the logic of the union’s argument, though not with its premise. The union is correct to say that it makes no sense to restrict an award for damages to employees employed on November 16, 1998 if the measure of damages is to be the loss of a collective agreement. But the damages contemplated in paragraph 163 of the May 4 decision do not envisage the union being able to establish the loss of a collective agreement as being the reasonably foreseeable consequence of the employer’s unfair labour practice. That loss is treated as being too remote, given the facts of the case. There are too many contingencies for that loss to be the fair measure of damages. The damages contemplated in paragraph 163 are more immediate and limited. They arise potentially from the violation of what is a fundamental right in the Act: employees have lost the opportunity to freely express their wishes in a representation vote as a consequence of the employer’s egregious conduct.
22The union relies upon Radio Shack, [1979] OLRB Rep. Dec. 1220 as authority for the proposition that the employees should get damages for the loss of the union’s opportunity to bargain. In that case the union was certified, it had endeavoured to bargain a first collective agreement with the employer, but the union’s effort was thwarted by any array of impediments by an employer which had no desire to reach agreement with the union. Had the employer acted as the Act required, the Board concluded the parties would likely have reached a collective agreement. That was the basis of the Board’s award of damages. The Board recognized there is a degree of speculation in ascertaining damages which arise from the loss of an opportunity, but the Board was willing to undertake the inquiry.
23In this case the prospect of the parties concluding a collective agreement is much more remote. The union has not been certified. I found, at paragraph 123 of the May 4 decision, that I could not conclude that the union would not have been successful had the intimidation not occurred. That is not the same as saying that, but for the intimidation, the union would have been certified. It is possible, but uncertain. So, there is a first level of speculation as to whether the union would have been certified, had there been no employer unfair labour practice. Then there is a second level of speculation as to what might have occurred in bargaining. The union is keen to present evidence of the advantages workers would have gained from the conclusion of a collective agreement. It is possible that, if the union had been successful in the representation vote (assuming no employer interference) that a collective agreement would have been concluded. But that is more remote and more speculative than guessing what might have happened in the vote. There is a third level of speculation, viz. whether the union can establish that workers would have been better off with a collective agreement than was the case over the past few years. Even assuming that the union would likely be able to do so, considered as a whole, these levels of speculation affect the basis upon which the union may claim damages. The loss of a collective agreement is too remote as a basis for damages, having regard to the type of employer misconduct and the point in time at which it occurred.
24The restriction expressed in paragraph 163 of the May 4 decision took account of the remoteness of any damages arising from the possibility of the parties concluding a collective agreement. The damages contemplated were those which arose directly from the loss of an opportunity to vote on November 16, 1998. That, as I have said, constituted the loss of a fundamental right under the Act, from which all other collective employee rights flow. Accordingly, I will not reconsider the limitation placed upon the scope of any damages to be awarded pursuant to the comments in paragraph 163.
The reimbursement of the union’s organizing costs
25The union notes that the May 4 decision does not include a requirement that Baron Metals pay the union’s wasted legal costs. The union suggests the decision is either not clear on the point, or, if the Board did not intend to award any legal costs, then it should reconsider that decision.
26The employer argues that the union may not seek reconsideration of this aspect of the May 4 decision. The issue was addressed in argument before the May 4 decision was issued. It was considered by me. I accept the employer’s objection. This is not a proper subject for reconsideration. It does not fall within one of the categories which the Board has said allow for reconsideration.
27Nonetheless, the omission of any award for legal costs in the May 4 decision was intentional.
28The union notes the Board’s general reluctance to make costs orders, but suggests that this case is one in which such an award would be appropriate. It argues that the order in the May 4 decision (paragraph 140) that Baron Metals reimburse the union’s organizing costs between Sept 1997 and November 16, 1998 does not address the substantial legal expenses the union incurred to remedy the wrongs committed in the period leading to the representation vote on November 16, 1998. It says those expenses should be reimbursed as part of the Board’s “make whole” determination. The union referred to the Board’s decision in Academy of Medicine, [1977] OLRB Rep. Dec. 783, particularly paragraphs 46-47:
The respondent’s unfair practices have had an injurious effect on both the employees and the union. Dealing first with the injuries suffered by the union, counsel for the complainants request that the Board order the respondent to “make whole” the union for the resources expended in its efforts to provide collective representation to the employees of the respondent’s Call Answering Service – efforts which have been rendered fruitless by the respondent’s illegal closure of that Division. Counsel pointed out that there is authority for such an exercise of remedial authority in several jurisdictions. (See, for example, in the U.S. (Tidee #1), (1970) 1426 F. (2d) 1243 (USCA District of Columbia); and in Canada, Robinson Little & Co. Ltd., letter decision dated March 15, 1976; November 22, 1976; and Kidd Bros. Produce Ltd., [1976] 2 Canadian LRBR 304, two recent decision of The British Columbia Labour Relations Board, which have granted “make whole” orders. In the former case, the employer, an owner of a chain of retail food stores, shut down its “Kamloops” operation after the management of that store failed in its efforts to rid itself of a newly certified union.) Counsel also noted that the Board, itself, has indicated that damages will be available to a union in an appropriate case. (See the Ottawa Journal case [supra] where an award was not allowed since the union was without clean hands and tardy in seeking Board relief.)
In this case, the illegal conduct of the employer has completely thwarted the organizational efforts of the union and deprived it of its statutory right to represent and bargain on the employees’ behalf. There has been no allegation that the union has acted improperly in any way. Nor does the evidence disclose any impropriety. The union filed this complaint immediately after the occurrence of the conduct complained of.
29The union points out, in this case, there have been over 20 days of hearing and the legal costs incurred by the union are substantial. They were incurred purely to remedy a serious wrong by the employer. This is a rare case in which there ought explicitly to be a winner and a loser. There should be no “fruits of its violation” for the wrong-doer (see I.U.E.W.; N.L.R.B. v. Tidee Products Inc. (Tidee #1) (1970), 426 F. 2d 1243, decision of the District of Columbia Court of Appeals). The union made reference to other cases in which legal costs had been ordered as part of a make whole award: Kidd Brothers Produce Ltd. and Miscellaneous Workers, Wholesale Retail Delivery Drivers and Helpers’ Union, Local No. 351, [1976] CLRBR 304; Kendon Waste v. International Union of Operating Engineers, Local No. 115, (1993), 94 CLLC 14, 174.
30There is a difference between this case and those referred to by counsel. In Academy of Medicine the employer had closed up shop, with no prospect of returning. As the Board said there, “the conduct of the employer has made it impossible for the parties to live together in the future” (¶48, p. 795). There was no possibility of a continuing relationship between the union and the employer. The same was true in Kidd Brothers. There the B.C. Board found the union could not rejuvenate support among the employees because of the employer’s actions. The Board treated the union’s investment in its organizing campaign as being a total loss, without any prospect of recovery. The only remedy available to the union was financial compensation for the wrongs done to it. A costs award was part of the compensation to the union.
31In Kendon Waste the B.C. Board was faced with an employer which had ignored its cease and desist order. The employer had failed to appear at the hearing and seemed to be in contempt of the Board’s proceedings. Costs were granted in those circumstances. In contrast, the employer in this case has in large measure complied with the terms of the Board’s orders.
32In this case there is a reasonable prospect of a continuing relationship developing between the parties. There is a prospect of the union recovering its investment in organizing the workers of Baron Metals. Pursuit of this case may be rewarded by the union being certified eventually. If the union is successful in the forthcoming representation vote, the parties will need to endeavour to reach a collective agreement. They may be engaged with each other for years to come. Costs orders are generally not granted by the Board, in part because it is not obvious that the Board has jurisdiction to do so, and in part because such orders tend to rankle; they cause resentment within a relationship in which the parties should expect some degree of legal contest and dispute, some litigation at arbitration. Costs orders add a punitive element to an on-going relationship. They tend to detract from a relationship which should be able to accommodate some degree of give and take.
33For these reasons, I will not reconsider the Board’s decision not to award legal costs to the union in the May 4 decision.
The six month time period should start when there is full compliance by the employer
34The May 4 decision required the employer to comply with each of the obligations imposed on it by a particular date. The employer has not done so to the letter of the decision. Some of the obligations have been fulfilled later than the date stipulated in the May 4 decision. It appears, though, save for one order in the decision, the employer has made a genuine effort to comply in a timely manner. When the parties’ reconsideration requests were argued, on June 13, 2001, all of the many obligations imposed on the employer had been complied with, save for one (that requiring the employer to provide the union with the home addresses and telephone numbers of Baron Metals’ employees), which is an element of Baron Metals’ reconsideration request.
35But for the order requiring disclosure of the home addresses and telephone numbers of employees, Baron Metals complied with the many orders made by the Board within a few days of the date by which compliance was required. There was a delay of only a few days. As a consequence of such substantial compliance the union did not pursue its contempt citation request.
36The union says that the delay, although brief for some of the Board’s orders, shortens the union’s opportunity to create the appropriate climate for a fair representation vote to occur. I will address the employer’s non-compliance with the order requiring production of the home addresses and telephone numbers of all employees in the bargaining unit below. In my view, though, at this stage, there is no need to reconsider the time limit for the union making application for the fresh representation vote. Six months after May 4 still seems to be a reasonable period within which the union can re-establish its presence among the employees of Baron Metals.
37As I said in the May 4 decision, I retain jurisdiction concerning the implementation of the orders stipulated therein. The 6-month provision of the decision is based on practical considerations. I conclude at this stage that circumstances have not changed significantly from when the decision was issued. Accordingly, at this stage, I see no reason to vary the 6-month period stipulated in the May 4 decision.
Baron Metals’ reconsideration request
38Baron Metals’ reconsideration request falls broadly under the following topics.
The employer’s liability for Kudi’s and Koti’s conduct?
39The employer challenges the Board’s conclusions that Baron Metals is liable for the conduct of the individuals, Kuti and Kodi, and that they acted on behalf of Baron Metals’ management. The employer submits that the Board erred in reaching these conclusions. It suggests that there was no supporting evidence and that the Board’s findings were based on suspicions not proven fact.
40This is not a proper ground for reconsideration. The question of what findings the Board should have made on the evidence presented was fully argued by the parties prior to the May 4 decision being issued. This portion of Baron Metals’ reconsideration request is an attempt to re-argue the matter. The reconsideration request under this heading is denied.
The Order requiring employees of Baron Metals to attend union meetings
41The employer argues that the Board has erred in requiring employees to attend union meetings on company premises. It says the Board has gone further than any previous decision. In earlier cases the employer says that the Board allowed meetings between a union and the employees, but it did not make those meetings compulsory. A departure from Board past practice justifies reconsideration: Atomic Energy of Canada Limited, [1978] 1 CLRBR 92 (CLRB), at 92, ¶1. For reasons which follow, I do not accept this requirement is inconsistent with previous Board jurisprudence.
42For the order to be effective the employer will be obliged to direct all employees to attend the union meetings. This, the employer argues, violates its rights of free association (by that it means its right not to be associated with the union). By requiring it to tell employees to attend the union meetings, the employer is being placed in the situation of appearing to be in league, or associated, with the union. Furthermore, says the employer, the rights of non-association of individual employees are being violated by their being required to attend compulsory union meetings. The employer also suggests the order is not rationally connected to the harm alleged in the complaint.
43I am not persuaded by these arguments. The compulsory meetings are the result of an order of the Board, not the volition of the employer. That is apparent from the May 4 decision and from the notice explaining the decision which was issued to each employee and posted. The meetings are not designed to assist the union. Their purpose is to correct a wrong committed by the employer by making clear to employees that if they choose to support the union, they are entitled to do so under the Act. The meetings are intended to put the union in the position it would have been had Baron Metals’ misconduct not occurred.
44The order requiring workers to attend compulsory meetings where they are addressed by union representatives is consistent with the Board’s jurisprudence: Radio Shack, [1980] 1 CLRBR 99, at 144, Board Order (iv).
The Order requiring the presence of a union office on company premises
45The employer argues this order violates its property rights, its rights of free association and free speech. The employer says the order constitutes a partial expropriation of its property for a period of six months. The order also gives the impression, says the employer, that Baron Metals supports the presence of a union in its establishment. The employer refers to the decision of the Supreme Court of Canada in National Bank of Canada and Retail Clerks’ International Union (1984), 1984 CanLII 2 (SCC), 9 D.L.R. (4th) 10 (S.C.C.), particularly p.31.
46I accept that the order interferes with the employer’s property rights. However, the employer’s right to the exclusive use of its property must yield because of the harm done to the union. The union is entitled to have a presence in the employer’s establishment for the reasons stated in the May 4 decision until the representation vote is held in order to correct the imbalance which resulted from the employer’s unfair labour practice.
47The order in this case is quite different from that in the National Bank of Canada case. There the bank’s President was obliged to sign a letter prescribed by the CLRB. The letter gave no clear indication that it was imposed by the CLRB and it was not the result of a voluntary act of the President. That the Court regarded as a violation of the bank’s and the President’s rights of free thought, belief, opinion and expression. The same does not apply in this case. There is nothing in the May 4 decision which requires the employer to admit its unfair labour practice. The notice to employees contains no requirement that it be signed by the employer (unlike previous equivalent Board decisions, see e.g. the notice to employees attached to Radio Shack, [1979] OLRB Rep. Dec. 1220). It is clear from the May 4 decision and the notice to employees that the directions and orders are those of the Board and not the voluntary acts of the employer.
48I am not persuaded by the free association and free speech arguments. The presence of a union office on company premises is the result of an order of the Board, not the choice of the employer. That is apparent from the May 4 decision and from the notice explaining the decision which was issued to each employee, and posted. No one will reasonably conclude that the union office is the consequence of the employer’s generosity. The notice to the employees makes clear the employer has been compelled by order of the Board to provide it. Furthermore, the employer’s rights of free speech are expressly not restricted by the May 4 decision. That is apparent in paragraph 138.
49The employer’s request for reconsideration under this heading is denied.
The Order requiring Baron Metals to meet with a union representative when an employee is suspended or discharged
50The employer submits this order gives the union partial rights of certification on an interim basis. The employer argues this order exceeds the Board’s powers to grant substantive interim relief. The union cannot acquire representational rights before being certified, says the employer. Furthermore, the order bears no rational connection to the wrongs committed because there was no suggestion in the evidence that any employee was improperly disciplined or discharged by the employer during the union’s organizing drive.
51The rationale for the Board’s order is contained in paragraph 148 of the Board’s decision. The union must be put in the position it would have been in had the wrong committed by the employer not occurred. The remedy of a union presence when severe discipline is given to employees is part of the Board’s palpable demonstration that the employer is not permitted to trample upon the union’s and the employees’ statutory rights. Certain of the employees were threatened with death. The intention of those threats was that they be conveyed through the workplace. The May 4 decision found that misconduct was ultimately the responsibility of the employer. In such circumstances employees should know that if they are to be severely disciplined (with suspensions or discharge), the union will be made aware of it.
52It should be borne in mind that the substance of the union’s entitlement under this heading is relatively meagre. No just cause standard is imposed (as the union had wanted). There is merely the obligation of a meeting at the union’s instance.
53The Board’s order, although of a limited duration and intended to create the conditions for a fair representation vote when it occurs within 6 months of the May 4 decision, was a final order. It was not in the nature of interim relief. An order which is limited in time does not equate to being an interim order. It was an order issued at the conclusion of a case, following the hearing of all of the relevant evidence.
The Order permitting three union representatives to have access to the employer’s premises
54The employer submits this order is too extensive. It is a significant infringement of the employer’s property rights, in the employer’s submission, and provides further benefits of a status as bargaining agent which the union cannot have until, and only in the event, it is certified.
55I am not persuaded by this argument. The order providing access to up to three union representatives is in accordance with the Board’s endeavour to fashion an appropriate “make whole” order.
56The employer anticipates problems with this order. It suggests the union’s representatives might interfere with production, or they might pose a danger to the health or safety of employees. These concerns are speculative because compliance with this portion of the order was delayed and thus far the parties have insufficient experience of its operation to be able to evaluate whether or not the access will actually constitute a problem.
57If there are specific problems which arise from the access which has been ordered, e.g. if the rights of access are exercised by the union representatives in a manner which compromises the health or safety of employees in the plant, or which undermines the efficiency of production, that can be brought to the Board’s attention. I have remained seized to deal with just such problems. The remedies should properly fit the circumstances. If they do not, then suitable adjustments may need to be made.
The Order that the employer provide the union with the home addresses and telephone numbers of employees in the bargaining unit
58The employer takes particular exception to this order. Counsel explains that several employees have come to management, without any prompting, to request that their addresses and home telephone numbers not be given to the union. The employer is reluctant to provide the union with what it regards as the private information of the employees concerned. The employer draws attention to the federal Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5 and the proposed Ontario Privacy Act. These pieces of legislation suggest that the employer should not be required to provide the union with what amounts to the private information of the employees concerned. The employer suggests the information may properly be given only once a union is certified as the bargaining agent for the employees concerned.
59The employer suggests that a better method for the collection of individual employee home addresses and telephone numbers would be for the Board to direct that a Labour Relations Officer visit the workplace, speak to all of the employees and determine who of them are willing to provide the union with their home addresses and telephone numbers. Those details voluntarily submitted could then be passed to the union.
60The May 4 decision found that the conduct attributable to the employer had a chilling effect upon the employees in the bargaining unit. The union’s organizing campaign was undermined by that conduct. The May 4 decision requires, as far as possible, that conditions be created which restore the status quo which would have existed in the workplace but for the employer’s unfair labour practice. Part of creating those conditions is a requirement that the union be able to contact employees in the bargaining unit away from the workplace, by telephone and, if necessary, by home visit (see Radio Shack [1980] 1 CLRBR 99, at 144, Board Order (v); Plastics CMP Limited, [1981] OLRB Rep. May 726, at 741, ¶44, Order No. 6). The purpose of this order is to give the union access to the employees in the bargaining unit to rectify the employer’s breach of the Act. An order that has the effect of providing the union with this type of information is not restricted by privacy concerns: The Millcroft Inn Limited, [2000] OLRB Rep. July/Aug. 665. The information is normally provided once a union is certified. The employer conceded that. However, in this case, for the reasons explained in the May 4 decision, it is appropriate that the union obtain the information now, in anticipation of the fresh representation vote.
61Accordingly, Baron Metals is directed to comply immediately with the May 4 decision.
Remaining Issues
62During the course of the hearing into the reconsideration requests of the parties, the union became aware for the first time of certain evidence which might be germane to some of the findings made in the May 4 decision. The union raised the possibility of seeking to re-open this matter to present this evidence.
63On June 28, 2001, subsequent to the hearing of the reconsideration requests, the union filed the particulars of the evidence it wishes to lead. The particulars are as follows:
At the original hearing of this matter, Mr. T Perampalam and Mr. Satasivam testified that that Kuti had emerged from a management office with a list of the names and addresses of the four individual complainants. They further testified that the list was written on blue-lined paper with Baron Metal's Logo at the top. At paragraph 38 of the Decision, the Board considered evidence of the employer's witnesses, who testified that "Baron Metals has no printed blue lined paper with its logo." It found that "it seems most unlikely that the lined paper had a company logo", and that testimony to this effect was "a subsequent embellishment in Mr. T. Perampalam and Mr. Sathasivam's evidence."
The Union seeks to submit for the Board's consideration a piece of blue-lined paper with Baron Metal's logo on it. It is submitted that this fresh evidence is highly relevant to the issue of whether the list was in fact obtained from management. The evidence also casts serious doubt on the credibility of the employers' witnesses. The circumstances giving rise to the discovery of the paper are as follows:
Selliah Kathiravelu worked as a shipper/receiver at Baron Metals from 1987 until approximately the beginning of 1997. At some time in 1996 or 1997, Mr. Kathiravelu was using a pad of paper at work for note-taking purposes; the pad of paper in question was blue-lined and had the Baron Metal logo on it. While Mr. Kathiravelu does not remember doing this, he must have brought the pad of paper home and put it away. He did not see it again, and completely forgot about it.
Several weeks after the Decision, and approximately four years after leaving his employment at Baron Metals, Mr. Kathiravelu was at home with his young daughter. He observed her drawing on a piece of paper. He noticed that the paper was blue-lined and had the Baron Metal logo on it. He immediately appreciated the significance of the paper, as he had been aware of the proceedings before this Board and the fact that the existence of this kind of paper had been at issue.
Mr. Kathiravelu quickly contacted Brando Paris, his representative at the United Steelworkers of America. Mr. Paris did not believe that anything could be done about Mr. Kathiravelu's discovery, as the Decision had already been issued. Nonetheless, Mr. Kathiravelu gave the paper to Mr. Paris the next time he saw him, on June 5, 2001, which was approximately one week after his discovery of the paper. Mr. Paris took the paper into his possession, but continued to believe that nothing could be done about the discovery.
On June 13, 2001, the day of the reconsideration hearing of this matter, Mr. Paris found the paper among his notes and decided to show it to me, even though he continued to believe that nothing could be done about it. I informed Mr. Paris that the paper was fresh evidence, in light of which the Board could reconsider its findings. Mr. Paris instructed me to seek reconsideration on this basis.
64The union’s request to advance this evidence meets some of the threshold requirements for reconsideration. The evidence was not available previously and it is relevant to the issues in the case. However, there is no practical value to re-open the hearing on the issue the union raises. The union has succeeded handsomely in this case. The findings and outcome favour the union. The employer has been found to have violated the Act and engaged in unlawful conduct. The union has obtained virtually all of the remedies it sought. Assuming, without finding, that the union could prove the facts it now seeks to present, the relief obtained by the union will not change. Even if the evidence of the employer’s involvement were shown to be even more manifest than it was when the May 4 decision was written that would not alter, or enhance, the conclusion that the employer is liable for the unlawful conduct. In the circumstances, there is no purpose in re-opening the hearing of this matter.
65The union’s request to re-open the hearing to lead the evidence described is therefore denied.
66The union’s damages claim, pursuant to paragraphs 163 and 164 of the May 4 decision, will now proceed. A further hearing day will be needed for that purpose.
67The matter is referred to the Registrar.
“Christopher J. Albertyn”
for the Board