Canada Cement Lafarge Ltd. v. United Cement, Lime & Gypsum Workers International Union and its Local 368, 1980 CanLII 775

Ontario Labour Relations Board

[1980] OLRB Rep. November 1583

1538-80-U; 1561-80-U Canada Cement Lafarge Ltd., Complainant, v. United Cement, Lime & Gypsum Workers International Union and its Local 368, Respondent.

BEFORE: George W. Adams, Chairman and Board Members J. D. Bell and B. L. Armstrong.

APPEARANCES: F. G. Hamilton, Q.C. and Ross Corbert for Canada Cement Lafarge Ltd.; James Hayes, Elizabeth Shilton-Lennon and George Surdvkowski for the United Cement, Lime & Gypsum Workers International Union.

DECISION OF GEORGE W. ADAMS, CHAIRMAN AND BOARD MEMBER J. D. BELL; November 18, 1980

1. These matters arise out of a common set of facts and were brought on at the same time for hearing and consolidated. Both matters were filed under section 79 and bring into issue the legal effect of section 34e of The Labour Relations Act together with the Board's role with respect to that provision. Section 34e provides:

(1) Before or after the commencement of a strike or lock-out, the employer of the employees in the affected bargaining unit may request that a vote of such employees be taken as to the acceptance or rejection of the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties and the Minister shall, and in the construction industry the Minister may, on such terms as he considers necessary direct that a vote of such employees to accept or reject the offer be held and thereafter no further such request shall be made.

(2) A request for the taking of a vote, or the holding of a vote, under subsection I does not abridge or extend any time limits or periods provided for in this Act.

2. Briefly, by letter dated September 30, 1980, the solicitors for Canada Cement Lafarge Ltd. (hereinafter referred to as "CCL") requested, pursuant to section 34e(l) that there be conducted a secret ballot vote of the employees in the bargaining unit at the company's Woodstock Plant, on the last company offer presented in negotiations with the United Cement, Lime and Gypsum Workers International Union and its Local 368 (herein­after referred to as "the International" and "Local 368", respectively). Pursuant to the direction of the Minister of Labour a vote was conducted under section 34e as requested and the results -of the vote showed 58 ballots in favour of acceptance of the company's offer while 57 ballots were for rejection of the aforesaid offer. On October 17, 1980 representatives of CCL presented to L. King, President of Local 368 for execution a proposed collective agreement incorporating the offer as "ratified" by the section 34e vote. King refused both to accept and to sign the aforesaid document and advised CCL that the International and Local 368 would continue the strike. Indeed, Donald G. Burshaw, Vice-President of the International advised King and Local 368 that they had no authority under the International's constitution and by-laws to sign any agreement with CCL without his concurrence (which was not forthcoming) and that if they did they could be subject to charges filed by the International's Executive Board. Unsurprisingly, picketing of the Woodstock Plant continued and the employees remain on strike.

3. Thereafter, CCL by letter dated October 18, 1980 requested its employees to report for work at 8:00 a.m. Tuesday, October 21, 1980 and, by letter dated October 23, 1980, acknowledged[ to them the confusion surrounding the situation but asked whether it made more sense to return to work and be paid while matters were being sorted out. The response achieved by these letters was the filing of the instant section 79 complaint by the International on October 21, 1980 asking for:

4. A declaration that CCL has violated The Labour Relations Act;

5. A direction that the Ministry supervised vote held on October 16,

1980 be set aside;

3. A direction that CCL cease and desist from:

(a) coercive surveillance of lawful picket line activity including the use of photography and tape recording;

(b) threats, both written and oral, that employees must resign from participating in a lawful strike and return to work;

(c) unlawful threats of plant closing;

4. A direction that CCL deliver to the homes of every member of the bargaining units at Woodstock and Bath a notice signed by the President of CCL advising employees of their statutory right to engage in lawful strike activity without unlawful employer interference;

5. Damages.

6. And in turn, CCL filed its section 79 complaint alleging violation of sections 14, 60, 63, 65 and 67 of The Labour Relations Act and requesting:

7. That the Board declare that the Respondents have violated The Labour Relations Act.

8. That the Board direct the Respondents to execute the Collective Agreement incorporating the Company's offer as ratified by the majority of the employees.

9. That the Board order the Respondents to cease and desist from all of the acts complained of.

10. That the Board declare that the return to work of employees is neither grounds for expulsion from membership in the Union nor grounds for discharge by the Company.

11. That the Board order all employees to return to work.

12. That the Board order the Respondents, their officers, officials and agents, to cease and desist from any picketing or other interference with operations of the Company.

13. That the Board award damages to the Company for all losses or expenses incurred as a result of the Respondents actions since October 17th, 1980.

14. That the Board direct the Respondents to send copies of the Board's decision, letters of apology and letters committing the Respondent to future adherence to the provisions of The Labour Relations Act to all employees and post the same at the Respondents offices and the Respondents bulletin boards on the Company premises.

15. The additional facts surrounding these complaints are best grouped under the following headings: (a) history of collective bargaining between the parties; (b) CCL's stated reason for requesting the section 34e vote; (c) events immediately prior to the conduct of the section 34e vote; and (d) events immediately following the conduct of the aforesaid vote.

(a) History' of Collective Bargaining Between the Parties

In addition to the Woodstock plant, CCL owns and operates a number of other facilities across Canada and at most of these locations the International together with one of its locals represent the hourly employees. Up until 1975 the following plants negotiated together under a master collective agreement system. These plants included Brookfield, Nova Scotia; Havelock, New Brunswick; St. Constant, Quebec (no longer represented by the International); Bath, Ontario; Winnipeg, Manitoba; Floral, Saskatchewan; Exshaw, Alberta; and Edmonton, Alberta. However, in 1975 these same plants negotiated in smaller groupings with Havelock, Woodstock, Hull and Brookfield constituting one such negotiating unit and this was so as late as the previous round of negotiations which culminated in the July 1,1978 to June 30, 1980 collective agreement (known to the parties as "the mini-master"). In the current round of bargaining, the base of negotiations was reduced even further to basic plant by plant collective bargaining bringing the parties full circle to the position they were in during the early 1950's. It would appear that this fragmentation of bargaining has been at the insistence of the trade unions with CCL preferring the broadest base of negotiations possible. The dissatisfaction from the trade union side appears to have arisen out of a concern for the previous treatment of local issues.

The mini-master expired on June 30, 1980. Separate notices for renewal negotiations were served by the International for each plant. Conciliation meetings were held in Woodstock for the Wood-stock plant on the 7th and 8th of August. The Woodstock plant employs 121 bargaining unit employees. By letter dated August 19, 1980 the Minister of Labour advised the parties that he had decided not to appoint a Board of Conciliation for the Woodstock negotia­tions and a positive strike vote was conducted by Local 368 about this same time. A mediation meeting was held between the parties on September 17, 1980 under the auspices of the Minister of Labour. At this meeting CCL presented its final offer to the trade union negotiating committee and the offer was rejected by the committee without presentation to the membership for ratification or rejection. On Friday, September 19, 1980 no employees reported for work for the 7:00 a.m. and 8:00 a.m. shifts and a strike began. Supervisory staff have been working through the strike and providing around the clock security. Picketing has been peaceful. The status of negotiations at the other plants is relevant. Winnipeg struck on August 11 but by Labour Day the employees there voted to accept an offer similar to that made to the Woodstock plant. The Brook-field plant employees did not go on strike and have voted to accept this same offer. However, due to the intervention of the International Vice-President, the local trade union there has refused to sign a collective agreement and the employees continue to work under the previous terms and conditions of employment. Havelock, New Brunswick employees have also accepted the offer and the agreement was implemented on the signatures of the local union officials. The Exshaw, Edmonton and Bath employees went out on strike in September and they were continuing to strike.

None of CCL's competitors are experiencing strike activity and their employees are represented by the same trade union. The Board was advised that sales in the industry represent about 45% of its capacity and sales are declining. CCL occupies about 25 to 35% of the available Canadian market, but it lost 5% of its pre-existing market share during a strike in 1975. The current strike could therefore once again affect its market share and, thus, its plant utilization. We note that CCL has closed facilities at Port Colborne and Hull over the last few years but the reasons for these closures are not before us.

The way the trade union has structured itself is also relevant to the bargaining between the parties and helps to explain the International's position in this matter. Prior to 1954 the trade union dealt with the large multi-national companies in this industry in Canada and the United States on a plant by plant, local by local basis. It, however, discovered that these companies were able to play one plant off against the other to the overall disadvantage of the trade union. Therefore, in 1954 the delegates to the International Convention decided to adopt a more formal bargaining structure which was entitled and remains entitled "The International Bargaining Program". It embraces Canada and the United States. The trade union is divided into ten districts, two of which are in Canada. Each district elects a district council consisting of rank and file members. Each district also elects a number of district representatives who become full-time staff representatives. There is, in addition, a number of International representatives appointed for Canada. Each district council establishes a district policy committee to which local trade unions send their bargaining proposals or resolutions. Where these resolutions are approved by the district policy committees in Canada, they are forwarded to the Canadian Bargaining Policy Committee established in 1974. The Canadian Policy Committee is chaired by the International Vice-President for Canada and its other members include a district representative from each of the two Canadian districts; the two district presidents; the two district secretary-treasurers; and the vice-president of one of the district councils on an alternating basis. The Canadian Bargaining Policy Committee meets on the resolutions submitted to it and formulates the bargaining program for that year. For the current round of bargaining, the Canadian Bargaining Policy Committee met in the second week of February. It is important to note that resolutions are sent from all locals of the trade union including locals representing the employees of other companies and some of these companies operate in other industries. It is understood that the policy which emanates from the Committee is desirable but not always achievable. The International Vice-President then met with representa­tives of all CCL local trade unions on March3rd,4th and 5th, 1980. From these sessions, he assembled an entirely new document to be proposed to CCL. The decision to seek an entirely new collective agreement stemmed from an alleged failure of CCL to honour many past practices not specifically incorporated into the existing collective agreement and increased contracting out. The proposed collective agreement also sought changes in the areas of temporary transfers, scheduling, and requested the exclusive reliance on seniority in job postings together with the right to negotiate job content.

Rule 19 of a union document entitled "Rules and Procedures To Govern Canadian Bargaining Policy Committee" provides:

Upon reaching a tentative agreement with the employer, such agreement must first be approved by an official representative of the International Union. This representative to be the Canadian International Vice President who is also chairman of the Canadian Bargaining Committee.

Upon receiving approval of the Canadian International Vice President, then the question of local union approval must be submitted to a regular or specially-called meeting of the local union. Such approval of the agreement must be by majority vote by secret ballot of the members employed by such employer attending such regular or special meeting.

The above steps in approving the agreement are in conformity with Article 18, Section 3 of the Constitution and By-Laws of the International Union.

Sections 3 and 4 of Article 18 of the Constitution and By-Laws of the International provides:

Section 3-Authority to Negotiate

Neither a local union nor the bargaining committee thereof shall have authority to modify, change, agree to or sign a collective bargaining contract with any employer without first obtaining the approval of the International Vice-President and a majority of the members employed by such employer attending a regular or specially-called meeting. Should any local union fail to comply with the foregoing, the International Executive Board shall have the authority to discipline said local union in any manner it may deem feasible. After full approval, as aforestated, such contract shall be binding upon all members of the local union. Copies of all understandings, memorandums, contracts, agreements and wage scales must be mailed by the local union to the International Vice-President, and the International Vice-President shall supply official copies of all such documents to the General Office of the Inter­national Union.

Section 4— Uniform Agreements

It shall be the established policy of the International Union in dealing with employers having more than one (1) plant that all local unions whose members are employed by the same employer shall always act in unison in developing and concluding collective bargaining negotiations. It shall be a violation of this Constitution and By-Laws for any such local union, acting alone or in concert with another such local or locals, to take any unauthorized action involving the development or conclusion of collective bargaining negotiations. Such local unions shall endeavor to the best of their ability to establish working conditions and all other employment conditions as uniformly as possible. However, all such activities shall be carried on under the full supervision of the International Union and the respective district councils.

It is clear that the International Vice President has conducted himself on the basis of these provisions in responding to the last offer vote which is the subject matter of this case.

(b) CCL's Stated Reasons For Requesting the Section 34e Vote

Local 368 had conducted a strike vote in August on the basis of the company's offer as of that time. On September 17, 1980 CCL's final offer was materially different and better. The August offer amounted to a 34% increase over a three year contract. The Septem­ber offer increased this to 42% — an offer which constituted an 8% to 10% increase for bargaining unit employees depending on their base rate. The principal changes involved a 30 cent per hour increase instead of the August offer of 20 cents; the immediate folding in of $1.26 of the COLA; a detail plan in the third year; and a fully integrated COLA annually. Not only did the company learn that this revised offer was not submitted to the membership in a ratification vote, it knew of at least two employee petitions that were circulated on behalf of employees who wanted the chance to vote on the September offer. The International Vice-President knew of one petition and admitted that it was never acted upon by the trade union. It was also the company's evidence that a number of bargaining unit employees let CCL representatives know they wished such a vote. A final reason for requesting the Minister to conduct a vote arose out of CCL's concern that the employees thought the offer had been rejected in Winnipeg. Just after the commencement of the strike a news report appeared in a local newspaper quoting a union official as saying the offer was identical to one turned down by CCL employees at its Winnipeg plant. In fact, the offer had been accepted by the Winnipeg employees.

(c) Events Immediately Prior to the Section 34e Vote

The Minister of Labour appointed the Registrar of the Ontario Labour Relations Board to conduct the requested vote. On Tuesday, October 7, 1980 he convened a meeting between the parties to discuss the voting arrangements. At this meeting, CCL representatives proposed that the last offer submitted to the em­ployees should include all items already (tentatively) agreed to between the parties together with its offer of September 17 on all outstanding matters. Mr. Burshaw objected to this proposal. He took a more literal view of what was required and requested that only the September 17th offer (in its entirety) be put to the employees. The Registrar acceded to his request. CCL representatives also asked about any restrictions on the communication of pre-vote information and propaganda to which the Registrar responded that no such rules had been promulgated. He apparently indicated that no such restrictions pertained even on the day of the vote and immediately outside the polling station. When presented to the union in September, the CCL last offer had an attachment styled "Memorandum of Agreement" which provided:

The Company agrees to provide to the Employees at the Woodstock Plant the same compensation (monetary) increased as is negotiated at any of its plants currently under negotiations (excepting local issues) and such compensation changes shall be made retroactive to 1 July 1980. Also, all negotiated wage increases and benefits (excepting insurance modifications) shall be retroactive to 1 July 1980.

The above is contingent on the Woodstock negotiating committee, Local 368 recommending acceptance to their membership of the enclosed Company offer.

At the meeting with the Registrar, CCL representatives offered to delete the last sentence to avoid any confusion over its relevance in the context of a directed vote but the trade union representatives objected and the Registrar decided that the sentence was to remain. By letter dated October 10, 1980 the parties were advised of the vote arrangements. The vote was to be held on Thursday, October 16, 1980 at Room No. 1 of the YMCA in Woodstock. The last paragraph of the Registrar's letter provided, in part:

.... The poll will be open from 2:00 p.m. to 6:00 p.m. The ballots will be counted immediately after the closing of the poll in the presence of officers of your local union and of your employer. The vote itself will be conducted under the supervision of a Returning Officer appointed by me from the staff of the Ontario Labour Relations Board. The Returning Officer is the person to whom any inquiry with respect to the voting procedure should be directed."

It is apparent from the evidence that at no time prior to the holding of the vote did the representatives of the trade union express the view to CCL representatives that they did not believe a vote accepting the last offer under section 34e bound them to execute a collective agreement on that basis. On the other hand, it is clear from all CCL communications to its employees prior to the vote and from its press releases that it believed a favourable vote would end the strike. Before a vote had even been requested by CCL, it wrote to its employees in a three page letter dated September 19, 1980 explaining the details of its September 17, 1980 offer which the trade union had rejected. A press release of October 3, 1980 explains CCL's wish that "our Woodstock Plant workers must be provided with an opportunity to vote on the latest Company offer". A further letter of October 14, 1980 was hand delivered to each employee and explained in summary form the details of the offer to be voted on. This explanation included items which had been tentatively agreed to together with the offer of September 17. The last paragraph of the letter explained this combination of items in the following terms:

You will note that some of the terms on the attached page are not included in the document distributed to you by the Ministry of Labour. That document is identical to the one presented to the negotiating committee at the mediation meeting on 17 September. The attached page summarizes that languages changes on which tentative agreement had been reached during previous negotiating meetings.

An advertisement, again reporting the details of its offer, was placed in the London Free Press on Wednesday, October 15, 1980 by CCL. This ad notes that "Canada Cement Lafarge Ltd. workers in Win­nipeg, Manitoba; Havelock, New Brunswick; and Brookfield, Nova Scotia, representing 50% of our clinker producing plants currently involved in these negotiations, have retified this contract offer." However, the most controversial communication was by CCL's President, J. D. Redfern who held "last minute" press conferences in Woodstock at 10:00 a.m. and at Belleville (Bath) at 6:00 p.m. on Wednesday, October 15, 1980. The text for each conference was identical save for the substitution of certain data relevant to the particular location and for the last paragraph. Presumably, the Bath plant local was addressed because it is CC L's intention to request a vote of the employees employed at that plant in the im­mediate future. Key portions of the Woodstock text included:

3. ... Unfortunately, once a strike starts, these groups have very little ability to stop it. Current Legislation puts power into the hands of the one group that loses least — the union executive!

They continue to be paid as they go about deciding what is good for their future and organization, and act accordingly. It is no accident for example that that same union involved here is currently negotiating with other cement producers in Canada without any of these plants being on strike. For union reasons it suits their purposes to strike CCL the only national company. The fact that our employees continue to suffer, and our communities continue to pay the price, is of little consequence to their selfish plans. It is like playing poker where everybody but one player has to use his own money. Without anything to risk he can continue to play in the most irresponsible manner.

Let us see if this pattern or scenario is similar to our specific problem here today.

4. Normally this would be a routine work day and some 168 employees would be involved with the operation of the CCL plant at Woodstock, Ontario. However, not normal is today's picket line (representing an international union headquartered in Chicago) whose aim is to persuade all who are involved, not to work. As a result, this plant, at today's replacement cost of some $70,000,000 sits idle.

5. By itself this would represent a loss to many, but here in Ontario it is compounded by the fact that even without this strike, the cement industry is under-utilized (domestic market equal to about ½ of the existing capacity) and the market has been dropping at an average rate of 5% per year since 1974. Given this scenario, it is not surprising that the selling price of cement in Ontario is one of the lowest in North America....

6. As discussed previously, it could be that the union's strategy, and not the employees' personal well being is being satisfied here. Or, those on the picket line, not completely advised by their union of the details of the contract offer, are acting with­out all the facts. Again, employee indifference or group pres­sure tactics may be stifling the wish or the majority.

7. If this plant remains closed, what is the impact on those involved? For the immediate community it means the interruption of an annual payroll of $3,750,000 and purchases of $2,700,000 in goods and services.

In the Province of Ontario purchase of power $1,480,000 and fuel $3,850,000 is affected.

For Woodstock the potential production of 1,400 tonnes of cement per day is halted. (All truck and rail shipments are cur­tailed). Exports to the U.S. that are needed to help offset low domestic demand and to assist Canada's foreign exchange are lost. In 1979 nearly $14 million of cement went from our Bath plant to U.S. customers, allowing a higher percentage of Ontario sales to be manufactured in Woodstock.

To the investor (pensioner, insurance owner or stock buyer), the potential return hoped for is being eroded. For Canada in need of enormous investment to utilize its potential in the 80's this type of difficulty turns people to saving and no-risk bonds rather than the investment outlet. (Let's look at CCL investors position).

The big loser is, of course, the individual worker and family. He or she loses three ways: (1) an hour's pay lost for each hour on strike; (2) rather than year-round employment, lay-offs become a sad fact due to loss of market to competitors not on strike; (3) due to loss of earnings, the company is not able to reinvest to stay competitive, thus plants grow old and are closed with workers laid off in mid-career. This plant is only here today because previous profits and investor confidence provided the capital needed.

10. How do we solve this problem? Under our conditions and the attractiveness of the offer, the fact that we have been unable to find a workable, efficient solution to what should have been an easy problem, reflects badly on Canadian labour relations and our current system and rules. From the workers' viewpoint, this strike is uncalled for and is a complete denial of their expectations that the union dues they are paying are to improve their conditions of work and compensation. Instead, they are paying the price while the union executives manipu­late the system for their own goals. From any logical point of view, the union should be celebrating the offer of a very good contract without cost to their membership, instead of leading them into hard times through a strike.

11. Our position is clear. As we are satisfied that a fair and attrac­tive offer has been made, we have 3 alternates:

1. Run the plants with the assistance of our unionized employees (working as a team).

2. Run the plants with supervisory personnel within the limits permitted by law.

3. If unable to operate, close down completely to reduce overhead until the dispute is settled.

Only in this way can the amount of harm being inflicted on the public, our shareholders, our customers and our employees be minimized. We owe it to all our employees who average many years in our employ, to preserve as best we can the fiscal stability of their company such that when the strike is over, we have jobs and suitable compensation for them to return to.

12. For the benefit of the employees, the law of Ontario allows the province to conduct a supervised ballot on the last contract offer. The Ontario Government will be conducting such a vote on October 16th for the benefits of the employees of the Wood-stock Plant. (A similar vote will be held in the near future at our Bath Plant.) They are on strike, despite the fact that the Union did not wish them to vote on the offer previously des­cribed. This is not surprising, as the union has tried to prevent other locals across the country from accepting this same offer. Despite this opposition to settlement by the union, plants in Manitoba, New Brunswick and Nova Scotia have voted to accept this contract and, in fact, are presently at work. The extent that the union is working against the members wishes can be illustrated by the fact that at one plant where the members voted to accept the contract by a vote of 77-2, the union executive attempted to keep them from signing.

We would appreciate your help in making the facts known to all. We are confident that our actions will prove to be in the best interests of our employees and the public. Your coverage of this press conference will make a positive contribution towards informing our workers and the public about the latest developments in the present situation.

A positive vote could signal the return to work of the em­ployees involved immediately. A negative vote could, at best, see this plant closed for months, at worst, closed forever. [emphasis added to last sentence by Board]

The salient difference in the Belleville text was the last paragraph of paragraph 12) which reads:

A positive vote could signal the return to work of the employees involved immediately. A negative vote could, at best, see this plant closed for many months and reduced in its period of employment for many years to come, due to the loss of Canadian and export markets to competitors not on strike.

Press coverage of these two conferences reported in newspapers in London, Woodstock, Belleville and Kingston on October 15 and 16, 1980 carried such headlines as "Firm threatens to fold if contract rejected" (London, October 16); "President offers local workers an alternative" (Woodstock, October 15, 1980); "Company may close plant if strike not settled" (Belleville, October 16, 1980); and "Canada Cement takes last step' to end strike" (Kingston, October 16, 1980). However, the text of each article carries a fairly accurate report of the purport of Mr. Redfern's remarks and even the London newspaper report of October 16, 1980 elaborates the head­line and makes mention of market conditions. Other newspaper reports in and around October 9 to II, 1980 contain statements said to have been made by Mr. Burshaw advising that the offer had been turned down by employees in Winnipeg and characterizing the legislation requiring the vote as "unfair", "horrible", and an in­fringement "on our rights, on our bargaining goals". Mr. Burshaw denied stating that the Winnipeg employees had turned the offer down.

The Board was advised that the vote was conducted as scheduled. CCL officials sat in their car in a parking lot near the polling station. They observed a number of union officials at the polling location during the period of the vote. They also observed at least one infor­mation picket and the circulation of a leaflet.

The report of the returning officer reveals that 115 persons cast ballots. 58 marked ballots in favour of acceptance of the final offer. 57 marked ballots for rejection of the offer. Neither party objected to the conduct of the vote and the trade union did not take exception to the company's earlier conduct before the vote was counted. Accordingly, the ballots were immediately counted with officials from both sides in attendance.

(d) Events Immediate/v Following the Vote

Soon after the counting of the ballots Mr. King, President of Local 368, advised CCL representatives that the union's lawyers would be preparing an intervention. He also said that the offer submitted to the employees was not really an offer because the negotiating committee had not recommended it to the membership as required by the attached memorandum of agreement. He expressed concern about the press conference and the earlier press releases of the com­pany. And he may also have said that the execution of an agreement on the basis of the vote was contrary to the trade union's constitu­tion. On Friday, October 17 at approximately 7:55 p.m. CCL officials presented Mr. King with a proposed collective agreement based on the vote for signature. He refused either to accept or to sign the document. He said that all the company had achieved "was to split the union right down the middle". He stated "that at least 57 employees were still on strike and on the picket line". He said that he had been advised by the union's lawyers that the Labour Board would not order them back to work. It was also stated that the exe­cution of the agreement by Local 368 would be contrary to the union s constitution which required the International Vice-Presi­dent's approval. Thereafter, CCL sent a telex to King indicating that it would have to take steps to bring about the completion of the agreement and that the company "[was] holding the union liable for any losses or damages incurred by [it] due to the continuation of the strike."

CCL sent the following letters to its employees:

October 18, 1980

Dear

Following approval of the new collective agreement by a majority of the hourly employees, the company will resume operation of the Woodstock plant at 8:00 a.m. Tuesday 21 October, 1980.

You and all other employees are requested to report for work at 8:00 a.m. Tuesday 21 October, 1980.

If you are unable to return at that time, you are required to advise the plant within five (5) days of receiving this letter of your intention to return to work. In addition, you must return to work within two (2) weeks from the date of receiving this notification.

I look forward to seeing you back again and I will appreciate you help in returning the plant to normal operation.

October 23, 1980

Dear

On Thursday, October 16, most employees voted be secret ballot on the final company offer. The result was 58 to 57 in favour of acceptance, but the strike continues.

We appreciate the confusion arising from two conflicting stories, one from the union executive, and from the company. Doesn't it make more sense to return to work and be paid while the confusion is sorted out?

The Union is quoted in the Press as having threatened anyone who crosses the picket line with expulsion and loss of his job. This is unlawful under The Labour Relations Act.

1-CCL Option 2-Union Option

Return to work and get paid an Stay on strike and collect strike

average of $85.00 per pay. The pay.

Company offer is as stated and

we guarantee that the Company

will stand behind it.

Canada Cement Lafarge has made an offer. The majority has accepted it. Let's get back to work. You have everything to gain.

The October 18th letter was modelled on the recall provision of the preceding collective agreement between the parties. However, CCL made no decision about what action to take against employees who failed to accede to the company's request and has, to this date, made no such decision.

CCL suspected that some employees would not return to work and was concerned for the safety of anyone who tried. Therefore, in order to deter any incident and to safeguard the passage of all persons into the plant, the services of a security firm were retained. A CCL witness also advised the Boa7d that the Ontario Provincial Police had been reluctant to play any prominent role. On Tuesday, October 21, 1980 a large number of pickets congregated about the entrances to the plant from 6.30 a.m. onward. By 8:00 a.m. their numbers had swelled to sixty or seventy people. A company witness testified that some of the employees were picketing while others were simply waiting around their cars. Salaried and supervisory staff entered the plant without incident but no hourly employees reported to work. This situation prevails although the company continues to ship a very reduced quantity of product through the efforts of its supervisory staff. The Board was advised that cameras have been used by the security forces when staff or trucks are entering or leaving the plant "to deter any improper actions" on the picket line. Some twenty-five security staff have been involved in the effort to date. Apparently, a helicopter has been recently used to transport staff into the Bath plant in order to avoid picket line incidents and because of a CCL perception that employees are potentially more militant at that location.

Submissions of the Parties

6. It was the position of CCL that section 34e clearly overrides the trade union's constitution and that a vote in favour of acceptance either immediately resulted in a collective agreement or obligated union representatives to execute such an agreement. Counsel relied on the explicit wording of the section and its relationship to other provisions such as sections 34d, 34c and 34b. It was submitted that the trade union's refusal to execute the collective agreement submitted to it on October 17, 1980 constituted a violation of its bargaining duty under section 14 and the Board was requested to direct the trade union to execute the document as submitted. The Board was referred to Municipality of Casimer, Jenning and Appleby, [1978] OLRB Rep. June 507 in support of this request. Counsel further submitted that, in refusing to sign the collective agreement and in continuing to support the strike, the trade union was also in breach of sections 60, 61. 64, 65, 67 and 69. He therefore reiterated his request for all of the relief reproduced at the outset of this decision. In defence of the trade union's allegations, counsel submitted that the Board should be reluctant to play the role of "censor" in monitoring pre-vote communications or propaganda emanating from either party. In this respect we were referred to Noranda Metals Industries Limited, [1975] 1 Can LRBR 145 (BCLRB). In the alternative, it was submitted that none of CCL's communications violated the statute or any reasonable standard of voting conduct in the circumstances. It was further argued that the use of external security services only commenced when there was a bona fides concern for the safety of employees and equipment after the holding of the vote.

7. On behalf of the trade union it was submitted that a vote under section 34e in favour of accepting an employer's last offer does not, in itself, produce a collective agreement. Counsel argued that there was no express provision to this effect and the Board should hesitate before directing this result given the impact of such holding on the legal status of a trade union to conduct collective bargaining. It was thoughtfully submitted that section 34e's primary role was to provide information to the parties about the wishes of the employees and that this information could produce useful pressures for settlement. Counsel admitted that a 34e vote could be relevant to the trade union duty under section 14 but that the Board should also take into account a) the structure of bargaining; b) the trade union's constitution; c) its bargaining goals; and d) all other relevant facts including the pre-vote conduct of the employer. It was submitted that where two reasonable interpretations of section 34e are open to the Board, it should prefer the one more closely following the scheme of the Act and bearing a greater affinity to the principle of voluntarism. Counsel contended that CCL had no standing to raise section 60 and that CCL's threats to close the Woodstock plant, whether accurately reported by the press or not, were sufficient cause for the trade union to ignore the results of the representation vote. Counsel therefore asked that CCL's complaint be dismissed and that the union be accorded the relief it sought which is set out above.

Decision

8. Again, section 34e provides:

(1) Before or after the commencement of a strike or lock-out, the employer of the employees in the affected bargaining unit may request that a vote of such employee be taken as to the acceptance or rejection of the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties and the Minister shall, and in the construction industry the Minister may, on such terms as he considers necessary direct that a vote of such employees to accept or reject the offer be held and thereafter no further such request shall be made.

(2) A request for the taking of a vote, or the holding of a vote, under subsection I does not abridge or extend any time limits or periods provided for in this Act.

We are satisfied that this section is not simply a method by which an employer can sample employee opinion with no legal effect on the trade union. It is our view that the wording of the section makes it abundantly clear that a vote in favour of accepting a last offer creates, in the usual case, the basis upon which a binding agreement between the employer and trade union is to be entered into. When the effect of the vote has been properly recorded in the form of a collective agreement, the officials of the trade union are obligated to execute the document. The failure to execute the agreement may constitute a violation of section 14 which can be remedied by the Board on the filing of a complaint under section 79 of the Act. However, we emphasize the qualification "in the usual case" because there may be circumstances where a trade union would be justified in refusing to submit to the results of a vote. For example, if a vote has been influenced by improper or illegal conduct of an employer, it would be patently silly to conclude that the trade union is violating section 14 by continuing to negotiate and refusing to submit to an outcome that does not represent the true wishes of the employees in the affected bargaining unit. Or a last offer may appeal to the majority of bargaining unit employees and, yet, be in blatant violation of the trade union's duty under section 60 because of the invidious treatment of a minority of employees.

9. A similar but much more difficult situation may arise where the outcome of the vote has been clearly influenced by the segregated ballots cast by a large number of strike replacement employees. If the vast majority of the employees in the bargaining unit who are employed at the commencement of the strike have, however, voted to reject the last offer and to continue their strike, it would be counter-intuitive, in an industrial relations sense, to conclude that the trade union is automatically bound by the wishes of employees it does not really represent. Indeed, the employer's offer in such circumstances might even contain terms which are very damaging to the trade union as an entity, i.e. See Wilson Automotive (Belleville) Ltd., [1980] OLRB Rep. July 1136 where an employer's offer contained a demand that the trade union compensate it for losses sustained during a strike. Whether the trade union is obligated to submit to the balloting in these kinds of situations may well depend on the duration of the strike at the time of the vote and other important industrial relations facts. Quite different approaches may also be needed where the employer and trade union have agreed at the outset of negotiations to multi-plant negotiations or other format conditions of bargaining. All of the above, therefore, are useful examples by which to illustrate that a collective agreement need not automatizally follow an affirmative vote in a bargaining unit to accept an offer and that section 14 must be applied in light of accepted principles of collective bargaining. As will be elaborated below, the section is intended to end industrial conflict and cannot be used as a vehicle to achieve some destructive aim wholly inconsistent with the overriding purposes of the statute.

10. Our reasoning for rejecting the "opinion theory" of section 34e proposed by the trade union required some explanation. To begin with, we note that the section uses words that, in usual usage, have legal significance. "Acceptance", "rejection" and "offer" are words or concepts typically used in determining and describing whether or not a binding commitment between parties has been arrived at. Had the Legislature wanted to create only an informational device, it would surely have avoided the use of such "loaded" terminology. There would have been much less reason to allow only one "last offer" vote. In any set of negotiations an employer may have to make numerous additional proposals after what it initially thought was its last offer in order to settle a strike. Why would opinion testing be limited to one last offer? Similarly, there would have been less reason to insert subsection 2 stipulating that the holding of a vote does not abridge or extend any time limits or periods provided for in the Act if only opinions were being sampled under section 34e. Opinion testing could have no possible effect on the course of bargaining as provided for by sections 63 and 70. Bargaining would simply proceed apace with the trade union completely in control, section 34e only representing a source of information that might be acted on at the trade union s discretion. The same kind of question can be asked about the decision to exempt the construction industry from the mandatory feature of the provision. Why the exemption if the section was intended only as an opinion poll? We would also draw attention to the very similar wording found in section 34d, a section that preceded the amendment under consideration in the instant case. The principal difference, of course, is that section 34d can be employed only on the insistence of the Minister. However, had this same question arisen under section 34d, it would have been doubly difficult for this Board to have held that the selective yet penetrating intervention of the Minister under section 34d constituted no more than an "opinion poll" despite a majority having voted in favour of acceptance and recognizing that failure to treat the results as binding might only divide the union and entrench the impasse.

11. In our view, the section is designed to reduce industrial conflict in at least two ways. If a bargaining representative is not accurately reflecting the wishes of the represented employees, the impasse is not justified and a vote to accept the employer's last offer ends further unnecessary conflict. On the other hand, if the employer is reluctant to alter his position because he erroneously believes the bargaining agent to be out of touch with its constituency, a vote to reject the last offer will convey that real movement is required to overcome the bargaining impasse. Hopefully, employers will react to this latter purpose, instead of "digging in" for a longer strike. While not specifically dealing with the legal effect of section 34e, the Board passed on this "reduction of conflict" purpose in the recent Wilson Automotive (Belleville) Ltd. case, [1980] OLRB Rep. Sept. 1337 at para. 11-14, pp.1340-41:

12. In the Board's view the intention of this section of the Act is plain. Industrial conflict is costly to employers, employees and the community as a whole. It is therefore desirable that unnecessary industrial conflict be minimized, whether it be in the form of a potential or actual strike. An employer is duty-bound to bargain exclusively with the union that has the bargaining rights for its employees. While it has a certain freedom of speech, it cannot bargain directly with its employees. It can bargain only with their union. A failure to do so is a breach of the duty to bargain in good faith. (Radio Shack, [1979] OLRB Rep. Dec. 1220 at 1241-47; A.N. Shaw Restoration Ltd., [1978] OLRB Rep. May 393 at 398-99.)

13. Through the bargaining process both the union and employer seek to maximize their own self interest. In doing so they frame their demands and offers in terms of their own reading of what the union membership will, in the end, accept. At some point in bargaining the company offers what it thinks the employees will accept. At that point the union may take the position that the employees require more, or that the union can obtain more for them. The result can be a stalemate which, during a strike, may be costly. Before the enactment of section 34e of the Act the union's bargaining committee might have rejected an offer from the employer that the employer was convinced would be accepted by the employees if only it could be put to them. But the employer could not require that its offer be put to a vote of the without the concurrence of the union. There was, in other words, no measure short of prolonged industrial conflict to resolve the stalemate that developed. Section 34e of the Act responds to that problem. It provides the supervised vote as a mechanism of public policy to move the dispute off centre.

14. A union's tradition control over when to take an offer back to the membership is a significant part of the balance of power in collective bargaining. The employer derives a certain leverage from its ability to play its cards as it chooses, making successive offers in the time and amounts that maximize its interests. The union bargaining committee has countervailing leverage in its ability to reject an offer of the employer and to insist that something better be served up before an offer is put to the employees for their acceptance.

15. Section 34e introduces a safety valve into that traditional tension in bargaining. It gives the employer the right at any time during bargaining to call for a vote of the employees on its last offer in respect of all matters in dispute. This the employer may do once, and only once. The reason for that is obvious. It is with the union exclusively, and not with the employees that the employer must bargain. To allow the employer the right to call for repeated votes of the employees would entrench substantially on the union's rights to be the exclusive bargaining agent of all of the employees. In practical terms, repeated votes would work a shift in the balance of power in bargaining by eliminating the tactical leverage of the union's bargaining committee and allowing the employer to bargain directly with the employees by an ongoing referendum. By giving the employer the right to call for a vote of the employees only once, the Legislature has balanced two legitimate interests in collective bargaining. It has given the employer an instrument to identify and eliminate unnecessary industrial conflict while preserving as far as possible the fundamental interests of the union to remain the body with which the employer must bargain exclusively. The ability of the employer to reach over the trade union to the employees is, therefore a very limited right.

16. Counsel for the trade union characterized section 34e as a form of factfinding, but in our view, this analogy is unsound. Factfinding, in all of its forms to date, has involved an assessment of a dispute by a third party and a factfinder's report may bring external settlement pressures to bear on one or the other party or both. See Downie, Collective Bargaining and Conflict Resolution in Education.~ The Evolution of Public Policy, Industrial Relations Centre, Publication No. 36, Queen's University at Kingston (1978) at pp. 109-116. It does not pit one employee against another or one group of employees against the trade union and its officials as an internal representation vote does. For this reason, we are satisfied that the Legislature intended to end the bargaining dispute and its related conflict where a majority has freely and properly voted to accept the employer's last offer. To permit the trade union (and the minority of bargaining unit employees) to ignore the wishes of the majority registered under section 34e would only exacerbate matters by creating turmoil inside the trade union. Indeed, this case is a good example with the International Vice-President threatening the majority of bargaining unit employees at four plants with charges under the union's constitution. In those jurisdictions where the previously held ratification vote lacked the authority of a section equivalent to section 34e, the locals and employees remain subject to intense yet conflicting pressures and loyalties. While our interpretation of section 34e leaves some room for this potential where a vote is in favour of rejection, the union's interpretation would have this be the case in all votes regardless of the outcome. Furthermore, it is dramatically more divisive to ignore the identified wishes of a majority. The honouring of a majority vote in favour of rejection has nowhere near the potential for generating hard feelings within a trade union because a minority generally expect to be guided by the wishes of the majority. The opposite is clearly not true.

17. But with all this talk of "majority" and "minority", it is important to emphasize that section 34e does not itself stipulate that the outcome of a vote is that option attracting "more than 50 percent of the ballots cast" as does, for example, section 7(4). In the facts at hand we are prepared to define the outcome in this way because the Minister did not direct otherwise and because there is no industrial relations consideration in this case which would support a definition of the outcome in terms other than a simple majority. In fact, although the International's constitution speaks only in terms of members instead of employees, it too requires a simple majority to ratify a collective agreement. See Article 18, section 3 and see section 63(4a) of The Labour Relations Act.

18. For all of these reasons, we cannot find that the Board is confronted with two equally plausible or reasonable interpretations enabling us to choose the union's theory as being more consistent with the scheme of the Act and the legal authority of a certified bargaining agent. In this sense Bradburn v. Wentworth Arms Hotel Ltd. (1979), 79 CLLC 11 14,189 does not provide the guidance the trade union argued it did. The section, to the extent that it permits an employer to cause the equivalent of a ratification vote against the wishes of the trade union, is an exception to the exclusive authority of the trade union. This is why such access is so narrowly defined. An employer has a right to put his last offer before the employees in the bargaining unit for acceptance or rejection only once. And as any thoughtful practioner of labour relations knows, it is a right to be exercised with extreme caution. It is not the norm for a negotiating committee to be so far out of tune with the persons it represents that its recommendation against an employer's offer will be ignored. On the other hand, an employer's belief that a committee or trade union representative is out of step with employee wishes may be, and often is, based on unreliable sources (i.e. persons telling the employer what they think he wants to hear). Moreover, a vote to reject what the employer has characterized as his "last offer" can serve to deepen the impasse unless the same employer is prepared to quickly change that offer and run the risk of impairing his credibility in future rounds of bargaining. But hopefully, the mere existence of the provision may encourage trade unions and their representatives to employ last offer votes on their own initiative. If the amendment has this effect, it is likely to rectify the "mischief' it was intended to cure and without the kind of con­troversy that seems to have been generated in this case.

19. This then brings us to CCL's section 14 complaint and a consideration of whether the trade union (International and Local 368) was justified in refusing to execute the tendered collective agreement. What ought the Board's role be in disputes of this kind and, more particularly, what standard of review ought to be applied to pre-vote communications and propaganda, if any? We must also inquire whether the trade union's constitution and the related refusal of approval by the International Vice-President constitute a justification for the trade union's refusal to submit to the outcome of the section 34e vote. Turning to the first issue, CCL's counsel submitted that a "hands-off' policy was the appropriate posture for the Board to take or, at most, the Board's involvement should be limited to obviously unlawful acts or communications. Counsel for the trade union, on the other hand, submitted that the standard of review ought to be as rigorous as that applied in representation elections. It was his submission that, for older employer with substantial years of service, a threatened plant closing can be every bit as coercive as the kind of conduct that is often censured by this Board in the context of organizing compaigns and representation votes.

20. We are of the view that the Board ought to adopt a position drawing from both of these submissions and that our jurisdiction to do so flows from sections 14 and 79 of The Labour Relations Act. The event of a last offer vote has legal significance to both parties in light of their respective rights and duties under section 14. Such a vote occurs in the context of collective bargaining negotiations and, thus, falls under the Board's general regulatory provisions pertaining to the negotiation process. Presumably, no more specific enforcement provision was thought necessary or wise because of the great variety of situations possible and because of the inevitable inter-relationship of section 14 in all such cases. Section 14 provides:

The parties shall meet within fifteen days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.

This section, therefore, constitutes an important vehicle for regulating the conduct of the parties in the context of a section 34e vote as it has assisted in related situations. See Municipality of Casimer, Jenning, and Appleby, supra; Noranda Metals Industries, supra. We would also observe that the Minister could, in his direction, stipulate certain ground rules for a section 34e vote and rules such as a 48 or 72 hour "silent period" before the vote might well be useful. But clearly, in the absence of Ministerial guidance, this Board cannot take the position that no standard of review is proper. Pre-vote conduct or communications involving coercion, intimidation, threats, or undue influence can undermine the reliability of a directed vote and cannot be tolerated or have been intended. To require the trade union to execute a collective agreement where an employer has engaged in such conduct would simply contribute to the illegality and reward the wrongdoer. On the other hand, the collective bargaining process is at times highly charged with emotion and centres on economic conflict or the threat thereof. In many situations, the very survival of the parties can be at stake and in all instances it embraces an admixture of pressure and persuasion. The complex role of tactic in bargaining through the use of threats, persuasion and public commitment lies at the centre of the bargaining process. See Schelling, The Strategy of Conflict (1960); Walton and McKersie, A Behavioural Theory of Labour Negotiations (1965); Stevens, Strategy and Collective Bargaining Negotiations (1963); Brown, Interest Arbitration, Study No. 18, Task Force on Labour Relations (1970); Sanderson, The Art of Collective Bargaining, (1979).

17. When a trade union advises an employer that unless the trade union's final proposal is accepted a lengthy and costly strike is possible, it is threatening to impose economic costs on the employer in order to achieve a collective agreement. It is the threat of economic harm to both sides which lies at the centre of collective bargaining encouraging the parties to come to agreement and to avoid such costs. Long strikes have the immediate and short-term effect of decreasing or eliminating the income generated to all parties. Such strikes can also, however, have a long-term impact on both parties if customers go elsewhere to service and do not return or return in lesser numbers on the resumption of work. See Webster & Horsfall (Canada) Ltd., [1969] OLRB Rep. Sept. 780. Parties to collective bargaining constantly remind each other and their respective constituencies of this reality and often do so in ways that attempt to achieve a tactical advantage. See generally Walton and McKersie, supra; and Stevens, supra. Similarly, both trade unions and employers often take public positions on various matters. If these positions are not achieved in bargaining great embarrassment and internal costs may ensue. A public commitment may thereby increase the cost of failure for the party making the public statement and at the same time increase its resolve to achieve the stated goals. The opponent will realize this fact and have to take it into account in fashioning its position.

18. A good illustration of public commitment can be found in the International's own publication "The Voice" where the August 1980 edition describes Mr. Burshaw's position in bargaining with CCL in these terms:

Strike against CCL begins

WINNIPEG, MAN. -Thirty-two negotiation meetings, which CLGW Canadian Vice-Pres. Donald G. Burshaw characterized as "terrible," haved led to a strike by Local 274 at nearby Fort Whyte against Canada

Cement Lafarge Ltd. Local 274 walked out Aug. 11.

"This will be a national strike," Burshaw said, noting that seven other CCL locals are just waiting for the required time limits under their provincial laws to walk out as well. Over 900 workers are involved.

"All locals are solid," he said. The other involved are Local 219, Bath, Ont.; Local 324, Havelock N.B.; Local 331, Exshaw, Alta.; Local 368, Woodstock, Ont.; Local 369, Edmonton, Alta.; Local 454, Brookfield, N.S.; and Local 564, Saskatoon, Sask.

Conciliation meetings are continuing, Burshaw said at Voice deadline. "I'm ready to meet at any time," he emphasized.

The prime issue in the bargaining impasse, Burshaw told the Voice, is that of integration of COLA, the cost-of-living adjustment. "We now have just a float," he said about the CCL COLA. This means that COLA is paid only on eight hours a day, 40 hours a week. An integrated COLA is also paid on vacations, overtime, holidays, and pensions. Among the Canadian locals having an integrated COLA in current contracts are L0cal 366, St. Lawrence Cement; Local 387, Lake Ontario Cement; Local 215, Canada Cement Lafarge in Montreal East; and former Local 47'), St. Constant Cement, which has had integrated COLA since 1975.

Other issues in the stalled negotiations, Burshaw said, are:

• An improved contracting-out clause. "We have gone through two bad years of grievances over contracting work out," Burshaw said.

• A right to negotiate changes in job content.

• A job-transfer clause. "We must have this clause, which is in the entire U.S. cement industry, including Citadel Cement, which is owned by Canada Cement Lafarge."

• Definition of a day worker versus a shift worker, an item which is already in the contract for CLGW Local 385, Richmond, B.C., and Local 503, Kamloops, B.C.

-Improvements in the pension.

• Other key language changes in vacation, group insurance, mandatory overtime, the bid system, and other items.

"If we get an integrated COLA, we're not going to hit them for a large wage increase." Burshaw said, "That's what I've been telling them across the table."

Burshaw said he believed that the union in Canada is not just involved in a dispute with Canada Cement Lafarge, but that it is facing a concerted industry drive. "We're not going to buckle under," he told the Voice.

Officers of Local 274, the first local to go out, include Donald Maes, president; Bruce W. Elder, recording secretary; and Paul Shewchuk, financial secretary. The local represents 94 workers at CCL, Fort Whyte.

19. A rigorous standard of review would deeply involve the Board in the bargaining process and leave little "elbow room" for the inherent dynamics of labour negotiations. As the British Columbia Labour Relations Board held in Noranda Metals Industries, supra, at p. 160:

Collective bargaining is not a process carried on in accordance with the Marquess of Queensbury rules, and that is especially the case when a lengthy strike is going on. Archibald Cox has warned of the long-range consequences of too close scrutiny by the Board of the tactics of negotiators:

'There is also danger that the regulation of collective bargaining procedures may cause negotiators to bargain with a view toward making the strongest record for NLRB scrutiny. The report of the Truitt negotiations bears ample evidence of the jockeying of lawyers. Hammering out a labour agreement requires all the negotiators' skill and attention. To divert them from the main task by putting a value on building up or defeating an unfair labour practice case diminishes the likelihood that the negotiations will be successful.'

Accordingly, while we interpret s. 6 as requiring adherence to certain fundamental principles of reasonable bargaining procedure, we also consider that this Board must exercise considerable restraint in intervening in negotiations between parties who are committed to reaching a collective agreement.

20. Going on to apply this approach to the facts before it, the B.C. Board reasoned at page 161:

The facts of this case present two important issues to the Board about the collective bargaining procedure required under s. 6 of the Code. We shall deal first with the meeting of September 5th and the letter it spawned, an incident which puts in question the propriety of direct employer communication with its employees during a strike. CAIMAW did not suggest that it is illegal, as such, for an employer to write its employees, giving its own version of the negotiations, and hoping this will ultimately influence the trade-union to draw closer to the employer position for a settlement. There was no complaint about the letters of June 28th, July 5th, and July 15th. The Union's concern was with the letter of September 5th — the letter to the employees — whose special feature was that it painted the stance of the committee in an inaccurate and disparaging way. That letter may have been defamatory. If written in the course of a representation campaign, it probably would have been a violation of s. 3(2)(f) (which was interpreted by the Board in the recent Langley Advance decision). However, we cannot conclude that it was a failure "to bargain collectively in good faith.. . and to make every reasonable effort to conclude a collective agreement". If this Board were asked to evaluate every distortion of fact or inflation of opinion contained in material written during heated collective bargaining disputes, we would be doing little else. (And we might note that if inaccurate employer letters to employees are a violation of s. 6, then inaccurate union letters to employees might well be a violation of s. 7.) The appropriate remedy for the Noranda letter of September 5th would not be a cease and desist order under s. 8 of the Code. Rather, it was the CAIMAW response to the employees of September 5th together with the meeting of September 15th, (and subsequent events indicate that that was an efficacious remedy).

21. This statement was expressly approved for mature bargaining relationships in Radio Shack, [1979] OLRB Rep. Dec. 1220 at 1243-4, but as early as 1975 in Fruehauf Trailer Company of Canada Limited, [1975] OLRB Rep. Jan. 77, we had taken a very similar position in writing:

As a general matter the Board must be very careful not to insert itself, without hesitation, into the bargaining process as a censor of the communications between parties engaged in this often emotionally charged exercise. A more intrusive approach would provoke disruptive litigation over what is essentially unavoidable human nature. Furthermore we believe that reasonable employees and diligent trade unions have little difficulty evaluating and responding to most of the isolated direct communications that may occur during collective bargaining.

22. A vote pursuant to section 34e is, in effect, an extension of the bargaining process or, at least, a product of an impasse that has arisen out of negotiations. Therefore, it makes sense to provide for the Noranda Metals Industries type of latitude as a section 34e vote is approached. In both instances, the parties have an equal opportunity for reply and possess the common object of entering into a collective agreement. The "laboratory conditions" approach which tends to be the standard applied in representation votes have been geared to a very different labour relations context where the parties are often dramatically opposed and unrepresented employees may be easily influenced. However, section 34e does involve a vote and provides an employer with a legitimate opportunity for direct access to employees. This vote will be rendered meaningless and the opportunity abused if an employer is permitted to unlawfully coerce or intimidate employees into accepting last offers and abandoning their right to concerted activity. In this case we are confronted with an alleged threat of plant closure at a time when the parties were at an impasse and the employees had been on strike for almost one month. Several issues, therefore, present themselves in light of the above analysis and in light of the facts before us. First of all, did the employees receive the employer's message? This is a factual issue and arises in this case because the impugned statement was made at a press conference immediately prior to the last offer vote. Newspapers in different cities at different times reported different interpretations of the press conference. Secondly, if they in fact received information emanating from the press conference, was its content such that the average employee would have reasonably construed it as a threat by the President of CCL to close the plant regardless of economic conditions? If there was the clear implication in the statement that the employer would take action solely on its own initiative for reasons unrelated to economic necessities, the statement would not be a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion. Where an employer's conduct breaches this standard, the reliability of the vote will be put in doubt and he will be taken to have forfeited the limited opportunity provided under the section. Moreover, this loss of opportunity should provide a strong disincentive to improper com­munications independent of the complaint processes of the Act.

23. It is also important to stress that the employer has an ongoing duty under section 14 regardless of section 34e. The decision to place a last offer before bargaining unit employees under section 34e arises because trade union representatives have refused to do so. Their refusal to do so will have likely been based, in part, on the circumstances then existing and the employer's rationale in making the offer. Where the rationale of the employer has undergone a fundamental change because of significant and related changes in circumstances since the offer was made to the trade union, an employer may be obligated under section 14 to place such new information and reasoning before the trade union prior either to requesting or, at least, prior tc participating in a last offer vote under section 34e. Section 34e should be limited to those situations where the trade union has refused to place a last offer before the membership after having been acquainted with all of the significant reasons for its acceptance known by the employer. Where important changes in these reasons have occurred, the trade union may be willing to review its position making a section 34e vote unnecessary. Candor in this respect will also minimize suspicion over the bona fides of the employer where these significant new reasons are laid before the employees should the union continue in its refusal to submit the offer to the employees for their consideration.

24. Applying this analysis to the facts at hand, what is the result? The first issue is whether the press conference statement of CCL's President reached the employees in the bargaining unit before they voted and particularly the last two words in the last sentence of that statement. No correspondence to this effect was hand delivered to the employees as the earlier letter communications were. The Woodstock press conference was held during the morning of October 15, 1980 and the local Woodstock paper of that date carried a report on the press conferer₁ce that made no mention of a possible permanent plant closure. That news report was unexceptionable. The evidence reveals that representatives of other media forms (radio and television) were in attendance at the press conference but no evidence was adduced with respect to the content of the resulting news coverage. As with the Woodstock newspaper report, no reference may have been made to the possibility of a permanent plant closure. The one newspaper article emanating from the Woodstock press conference which reported that "if striking union members from Canada Cement Lafarge Ltd. reject a contract offer today the Woodstock plant may have to be closed down permanently" was reported in the London Free Press on October 16, 1980, the day of the vote. On the evidence, it is not clear that bargaining unit employees in Woodstock would have had an opportunity to read this report or see the headline before they voted. Accordingly, looking at the evidence as a whole, it is a matter of considerable debate whether the employees were actually confronted with a report on the press conference that would have improperly influenced their ability to cast their ballot freely.

25. We do, however, think it important to go on and examine the content of the press conference. The more threatening and intimidating a statement is, the less willing this Board should be to let the case turn on the union's failure to establish that bargaining unit employees in fact had access to the statement in dispute. The more improper the statement, the greater the onus on the person making the statement to establish that it did not reach its intended targets. The statement both in timing and content has given us concern. The President of CCL, who had made no previous pronouncement on the bargaining to employees, went to Woodstock to hold a press conference. The statement emphasizes the state of the economy, labour management relations and the cement industry in particular. The statement ends with a somewhat ominous reference to a possible permanent plant closing, "at worst". At no other time during the course of bargaining or in the communications to the employees had a CCL representative made mention of the possibility of a permanent plant closing. And in the statement itself, no specific rationale was given for the possible plant closing except that of a negative vote. Viewing the statement as a whole and having regard to the strike between the parties and the history of their collective bargaining relationship, can it be said that the average bargaining unit employee could reasonably construe the statement as a threat to close the plant regardless of market conditions and in retaliation to the refusal of employees to accept CCL's last offer? If this construction is reasonable, the threat is contrary to the legislation and it would clearly affect the reliability of the vote as a true measure of the wishes of the employees. See Yearbook House (1976), 223 NLRB 1456. Employees have a statutory right to engage in strike action in the pursuit of their bargaining goals and the punitive closing of a plant or the threat thereof is no more acceptable under The Labour Relations Act than is a mass firing. See Fielding Lumber Company Ltd., [1975] OLRB Rep. Sept. 665; The Academy of Medicine, [1977] OLRB Rep. Dec. 783; and Westinghouse Canada Ltd., [1980] OLRB Rep. April 577.

26. On the other hand, an employer is equally entitled to achieve proper bargaining objectives through the use of economic sanctions and the statute acknowledges an employer's freedom to express his views (see section 56). The statement that "a negative vote could, at best, see this plant closed for many months" conveys that this employer is serious about its final offer and that it is not going to be easily moved into making further concessions. It is a public commitment to this effect and draws its credibility from the fact that three other plants have already accepted the same offer and the employer has already experienced a month long strike. We are satisfied that the average bargaining unit employee would and should understand this portion of the statement as a statement of bargaining reality. If employees were threatened by the prediction of a longer strike, it was a threat that CCL was entitled to make. In this respect CCL's statement was a reasonable prediction based on available facts. Indeed, for the Board to prevent employers from making such statements could have the effect of depriving employees of information that conveys an accurate picture, however unfavourable to the union, of what is in store if the voters choose to reject the employer's last offer. Can we so characterize the rest of the statement as it relates to a permanent plant shutdown? Can the ending of the Bath plant statement be similarly characterized? While the situation is very close to the line, we have come to the conclusion that neither statement should be viewed as an unlawful threat under the Act or as undermining the reliability of a vote (past or future). This is a longstanding bargaining relationship. A strike had been in progress for a month and a negative vote would have had the effect of hardening the differences between the parties. CCL's competitors are not on strike. The industry and CCL are operating substantially below their capacities. The full text of the President's statement emphasized all of these contextual matters and the permanent plant closing was put forward as "the worst" case. At this stage of bargaining and under these conditions, the Board cannot conclude that the observation can reasonably be construed as an improper threat to close the plant regardless of market conditions. See First Data Resources Inc. (1978-79) CCH NLRB ¶29,409. Moreover, any doubt in this respect must be combined with our doubts that the statement ever- reached bargaining unit employees before they voted. The offer had been accepted by three locals of the same trade union and, on balance, we cannot conclude that the vote reflects anything other than the attractiveness of the last offer and the unattractiveness of continued strike action.

27. The Bath statement is somewhat more difficult in that it seems to suggest that reduced employment for years to come is a certainty, but it is explicitly tied to market conditions and the mature employee can make up his own mind whether this prediction is accurate or not, Moreover, the local union at Bath has ample time to counter the employer's statement wit 3 its own propaganda. In the context of this collective bargaining relationship, and having regard to the statement as a whole and to the fact that the parties are at impasse, no reasonable employee could have or should have viewed this statement as a threat to reduce employment regardless of market conditions due to the impact of the strike.

28. Finally, had there been an immediate prospect of permanent plant closure at Woodstock, the employer would have been obligated under section 14 to put the situation directly to the trade union together with the details supporting its position. The rationale for this conclusion has been discussed at paragraph 23.

29. We also find that the International's constitution and by-laws do not provide either it or Local 368 with an acceptable defense in refusing to execute the collective agreement. The International's constitution and by-laws are subject to the provisions of The Labour Relations Act and any conflict must be resolved in favour of the statute in the circumstances of this case. We stress that in 1980 the parties did not agree at the outset of bargaining that all plants would be subject to the outcome of a single set of negotiations. In such circumstances, an employer's unilateral rejection of that agreement by way of a request under section 34e could itself constitute a violation of section 14, in any event, would justify a trade union in refusing to be found by a single plant section 34e vote.

30. Having regard to our conclusion that a vote to accept an employer's last offer does not result automatically in a collective agreement, CCL's complaints under sections 63, 65 and 67 are dismissed. In addition, CCL lacks standing to file a complaint under section 60.

31. As for the section 79 complaint filed by the International, it must be dismissed in its entirety. The letters written to the employees are clearly supportable given our decisions on the legal effect of section 34e and the propriety of the CCL statements prior to the vote. We are also satisfied that a bona fides concern over the safety of personnel and equipment led to the retention of the security services and that the photographing of picket line activity at strategic times was borne of similar fears. See The Udylite Corporation (1970), 76 LRRM 1850; and Lerand Leisurelies Inc. (1974), 87 LRRM 1129.

32. Having regard to all of the foregoing, we issue the following remedy:

(a) The Board declares that the International and Local 368 are required to submit to the results of the section 34e vote held on Thursday, October 16, 1980;

(b) The Board further declares that the International and Local 368 have failed to bargain in good faith and make every reasonable effort to enter into a collective agreement by refusing to execute the collective agreement presented by CCL on October 17, 1980;

(c) The Board directs the International and Local 368 to execute the aforesaid collective agreement forthwith;

(d) The Board directs Donald Burshaw, International Vice-President and Bill King, President of Local 368 forthwith to advise all employees in the bargaining unit by mail to comply with CCL's return to work arrangements provided such arrangements remains on a reasonable basis.

33. The Board directs the Registrar to reschedule this matter for a hearing on the issue of damages. We have found that both trade unions have violated section 14 and it is now firmly established that a breach of this section may support a request for all resulting damages. However, in this particular case the trade unions did not execute the proposed collective agreement because of a dispute over the legal effect of section 34e (an issue of first impression) and because they did not believe the vote reflected the true wishes of the employees. The latter concern was the product of a last minute controversial statement by the respondent and this decision now puts that concern aside. It is also not readily apparent that both trade unions should be equally liable and from when damages should run, if damages are appropriate in this situation.

DECISION OF BOARD MEMBER B.L. ARMSTRONG:

1. I dissent from the majority decision in both of these matters.

2. I am especially concerned about the majority decision in respect of the section 79 complaint filed by CCL. They have decided that in the usual case a vote in favour of accepting a last offer will create a collective agreement. Furthermore, the majority has chosen to adopt a "hands-off' policy in regulating employer conduct during the inevitable campaign that precedes a section 34e vote. The combined effect of these two determinations upon the bargaining power of union executive committees in this province will be extremely adverse.

3. In deciding that in the usual case a vote in favour of accepting a last offer will create a collective agreement, the majority has not given sufficient consideration to the total absence of any such direction in the language of the section. Nowhere in section 34e does the Legislature indicate that one possible result of such a vote is the creation of a basis for a binding agreement. How can it be said that such a result will occur "in the usual case?" I do not mean to suggest that section 34e votes are mere opinion polls. However, absent any direct language in the section indicating that a collective agreement may result, I cannot accept that such a result is the "usual" case. Only where the outcome of the vote, in the light of all of the surrounding circumstances, clearly indicates a preference for the employer's offer should the trade union be required to sign an agreement based on that offer. This was not such a case. Improper coercive statements (discussed below) nullified the vote.

4. Assuming the majority to be correct in their interpretation of the normal result of section 34e votes, I cannot agree that this is the usual case. The employer's intimidatory actions prevented the true expression of the employees' wishes as to this offer. At a press conference immediately prior to the vote the employer claimed that "a negative vote could, at best, see this plant closed for many months, at worst, closed forever." This threat of a shutdown was made so late in the campaign that the union did not have an opportunity to counter the threat with an explanation that such threats are often made in the normal course of bargaining. Neither did the individual employees have time to carefully consider the statement themselves. Instead, they were left with such headlines as "Firm threatens to fold if contract rejected" (London, October 16) and "President offers local workers an ultimatum" (Woodstock-Ingersoll, October 15). As a result the trade union was entitled to refuse to sign an agreement based on an offer that was only "accepted" following a threatened plant shutdown. To adopt the language of the majority, I find the content of these communications was such that an average employee would have construed them as threats to close the plant regardless of economic conditions. It follows that I would have found that the trade union had not violated the section 14 duty to bargain in good faith.

5. In dealing with the section 79 complaint filed by the International I would not have dismissed it in its entirety as the majority has chosen to do. Section 58c provides:

6. No employer, employer's organization or person acting on behalf of an employer or an employer's organization,

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

There is considerable evidence in this case to support a finding that the employer has violated the above-noted section. First, there is the threatened shutdown in the press conference statement discussed previously. Second, there is the letter of October 18, 1980 sent to each employee by the company in which employees are informed that they "must return to work within two (2) weeks from the date of receiving this notification." Finally, there is the overt photographing of picket line activity which has an intimidatory effect no matter how bona fides the employer's intention. Each of these acts of the employer interferes with the right to strike lawfully which is derived from The Labour Relations Act. In the result I would have found that CCL violated the Act.

6. In conclusion I adopt the majority suggestion that there be developed certain ground rules for the taking of section 34e votes and that a "silent period" be put into effect. Regulations such as this will to some extent ensure the reliability of section 34e votes.