United Steelworkers of America v. The Adams Mine, Cliffs of Canada Ltd., 1982 CanLII 978

[1982] OLRB Rep. December 1767

1214-82-U United Steelworkers of America, Applicant, v. The Adams Mine, Cliffs of Canada Ltd., Manager, Respondent

BEFORE: George W. Adams, Q.C., Chairman and Board Members J. A. Ronson and H. Kobryn.

APPEARANCES: Brian Shell, Dennis Fordyce and Marcel Desjardins for the applicant; and C.G. Riggs, B.J. Bowlby and J.L. Merrell for the respondent.

DECISION OF GEORGE W. ADAMS, Q.C.; December 8, 1982.

1. This is a complaint filed on behalf of all employees of the respondent represented by the complainant in the production and maintenance bargaining unit and in the office, technical and clerical bargaining unit alleging that the respondent has acted contrary to the provisions of sections 3, 64, 66(a) and 66(c) of the Labour Relations Act.

2. Given the nature of the matter, the complaint was placed before this panel of the Board in order that the complainant show cause that the Board had jurisdiction and if so whether the required jurisdiction ought to be exercised.

3. The complainant and respondent are parties to office and production collective agreements effective from March 1st, 1982 until March 1st, 1985. For the purposes of this decision it is accepted that the complainant is an affiliate member of the Canadian Labour Congress (hereinafter the CLC) and that the Canadian Labour Congress has political and organizational ties with the New Democratic Party of Canada, a registered federal political party (hereinafter NDP). It would also appear that the complainant is an affiliate member of the NDP. It is further accepted that the CLC and NDP have participated together on a number of political, social and economic campaigns.

4. On or about September 26th, 1982 the complainant commenced a campaign in support of the CLC and its political affiliate, the New Democratic Party of Canada. This campaign was launched in connection with the by-election in the federal constituency of Timiskaming scheduled for October 12th, 1982. The Board was advised that the union campaign included the posting of union notices on union bulletin boards by officers of the local union. These notices identified members of the union who were acting as canvassers in the campaign. All canvassers were members of the complainant and employees of the respondent. No outside people were involved in the campaign on the respondent's property. The Board was advised that canvassers were instructed by the complainant to discuss various political and economic issues with and distribute literature to employees who approached or were contacted by the canvasser. All such discussions and activities, while on the respondent's premises, were to be confined to the non-working hours of both the canvasser and the solicited employee. More specifically, the Board was advised that employees were told that the canvass should take place at lunch hour, on coffee break, before work and after work.

5. Counsel for the complainant submitted that no canvassing was done on company time and that there had been no interference with the orderly operation of the mine. Counsel for the respondent did not agree with this submission. While maintaining that the Board had no jurisdiction to inquire into the complaint, counsel for the respondent maintained that the campaigning did interfere with the mine operations and that the respondent had received complaints, presumably from supervisors and bargaining unit employees. We are of the view it is not necessary to make a determination on these factual differences given the conclusion we have arrived at.

6. The notice on the union bulletin board took the following form:

ON THE JOB CANVASS

SPONSORED BY THE

CANADIAN LABOUR CONGRESS

AND YOUR

UNION

HAVE YOU BEEN CANVASSED?

IF NOT,

CONTACT A CANVASSER.

CANVASS PERIOD:

SEPTEMBER 15-27

CANVASS ORGANIZERS:

CANVASSERS:

IF YOU WANT TO HELP PLEASE CONTACT YOUR

CANVASS ORGANIZER — OR — CALL US AT

567-7733

567-8355

The literature distributed by canvassers was in English and French and read:

7. The information pamphlet describing the objectives of the on-the-job canvass contain the following information:

8. On or about September 20th, 1982 the respondent stated in a notice to all employees, under the signature of Bruce Taylor, Mine Manager, that any and all forms of canvassing, campaigning or posting of materials of any type on company property was prohibited unless authorized by the respondent. The notice read:

NOTICE

September 20, 1982

TO: ALL EMPLOYEES

FROM: BRUCE W. TAYLOR, MINE MANAGER.

SUBJECT: ELECTION CAMPAIGN

You are reminded that any form of canvassing, campaigning or posting of materials of any type on Company property, bulletin boards, or equipment is not permitted unless authorized by management.

It has been noted that political campaign material is appearing on Company property. This is to discontinue and all political type campaign questionnaires and material is to be removed immediately.

Political campaigning is not permitted on the Adams Mine property at any time.

9. The complainant's particulars state that on or about September 21st, 1982, Dennis Fordyce, Vice-President of the Complainant's Local Union 6409, was told by Mr. Taylor that no political campaigning was to take place on mine property. On or about September 22nd, 1982 Fordyce was told by Taylor that the canvassing was interfering with the orderly operation of the mine and must cease. On or about September 24th, 1982 Fordyce was told by John Merrill, Personnel Manager, that there would be disciplinary repercussions taken against members of the complainant if the campaign and canvassing as aforesaid continued.

10. The respondent takes the position that it has never permitted political canvassing on its properties save in parking lots and the complainant submits that at least two prior campaigns have been conducted by the complainant on the respondent's premises in the same manner as in the instant case. Again, we are of the view it is not necessary to resolve this factual difference.

11. Article 2 of the Constitution of the complainant states the objects of this trade union in the following manner:

ARTICLE 11

Objects

First. To unite in this industrial union, regardless of race, creed, color or nationality, all workers and working men and working women eligible for membership, employed in and around and in transportation related to iron, steel, aluminum, nonferrous metal and allied manufacturing, mining, chemical, processing and fabricating mills, factories and establishments in the United States and its territories, Canada, and insular areas adjacent thereto.

Second. To establish through collective bargaining adequate wage standards, shorter hours of work and improvements in the conditions of employment for workers in industry.

Third. To engage in educational, legislative, political, civic, social, welfare, community and other activities; to advance and safeguard the economic security and social welfare of workers in industry, the International Union, its Local Unions and the free labor movements of the United States, Canada and the world; to protect and extend our democratic institutions and civil rights and liberties; and to perpetuate and extend the cherished traditions of democracy and social and economic justice in the United States, Canada and the world community.

Fourth. To function as an autonomous International Union affiliated with other international unions in national and international federations in the United States, Canada and the free world; to unify and solidify the International Union, its Local Unions and the entire labor movement; and to provide financial and other aid and assistance to labor and other organizations in the United States, Canada and other parts of the world.

Fifth. To take all steps and actions consistent with the Constitution and policies of the International Union to implement and carry out the objects, rights, activities and responsibilities of this organization.

(our emphasis)

12. The complainant requests:

(a) an order that the respondent cease and desist from its interference with the complainant's lawful activities, namely, participation by the complainant and its members in its campaign in support of the Canadian Labour Congress and its political affiliate, the New Democratic Party of Canada, launched in connection with the by-election in the federal constituency of Timiskaming scheduled on October 12th, 1982; and

(b) a declaration that the on-the-job campaign by the complainant and its members on company premises on non-working hours constitutes a lawful activity of the complainant and as such is protected by the Labour Relations Act.

Submissions

13. The complainant submits that the on-the-job canvass is a lawful trade union activity within the meaning of section 3 of the Labour Relations Act and for that reason persons participating in such activity are protected by sections 64, 66 and 70 of the Labour Relations Act. For authority that section 3 provided a sufficiently broad substantive grounding to this complaint, the Board was referred to St. Catharines General Hospital, [1982] OLRB Rep. Mar. 441 at ¶35; Jarvis v. Associated Medical Services Limited, 61 CLLC ¶16,218 at p.980; Audio Transformer Company Limited, [1969] OLRB Rep. Nov. 994; Eastex Inc. v. N.L.R.B., 98 LRRM 2717 (USSC). Reference was also made to section 1(1)(p) of the Act providing a broad definition of trade union and to a number of arbitration cases that have recognized certain kinds of political activity as trade union activity for the purposes of a collective bargaining agreement. These latter cases included: Re Air Canada and Canadian Airline Employees Association (1980), 27 L.A.C. (2d) 289 (Simmons); Re Lake Ontario Steel Company Limited and United Steelworkers, Local 6571 (1978), 1978 CanLII 3533 (ON LA), 20 L.A.C. (2d) 432 (Abbott); United Electrical, Radio and Machine Workers of America in Re Canadian General Electric Company, Limited (1951), 3 L.A.C. 917 (Laskin); Re Texpack Limited and Canadian Textile and Chemical Union (1973), 1973 CanLII 2082 (ON LA), 3 L.A.C. (2d) 38 (Hanrahan); Inco Limited and United Steelworkers of America, Local 6166, January 15th, 1981 (W.R. Martin); and The Corporation of the Borough of Etobicoke and The Borough of Etobicoke Civic Employees’Local Union No. 185, June 3rd, 1981 (R.H. McLaren). Finally, the complainant submits that because the activity was protected activity within the meaning of section 3 of the Act, the respondent could not interfere with the activity provided that the canvassers were not materially interfering with production or creating a serious disturbance or obstruction on company premises. For authority that lawful union activity may be carried on by employees on company premises on non-working time, the Board was referred to Jarvis v. Associated Medical Services (supra); Audio Transformer Company Limited, supra; Cominco Limited and Canadian Association of Industrial, Mechanical and Allied Workers, Locals 23, 24, 25, 26 and 27 and United Steelworkers of America, Locals 480, 651, 8320, 9705 and 9672, [1981] 3 Can.LRBR 499 (BCLRB); American Airlines Incorporated, Toronto, Ontario and Brotherhood of Railway, Airline and Steamship Clerks, Freighthandlers, Express and Station Employees, [1981] 3 Can.LRBR 90 (CLRB); Republic Aviation Corporation; Le Tourneau Company of Georgia v. N.L.R.B. (1945), 16 LRRM 620 (USSC); N.L.R.B. v. Babcock and Wilcox Company (1956), 38 LRRM 2001 (USSC); and N.L.R.B. v. Magnavox Company (1974), 85 LLRM 2475 (USSC). Bell Canada and Communication Workers of Canada (unreported CLRB decision, August 22nd, 1975; application for judicial review dismissed 1975 CanLII 2341 (FCA), [1976] 1 F.C.459); International Association of Machinists and Aerospace Workers, Automotive Lodge (1857) and Jim Patison Industries Limited, [1979] 2 Can.LRBR 517 (BCLRB).

14. It is submitted on behalf of the respondent that the political canvassing, in substance, put forward the interests of the NDP and not the collective bargaining interests of the complainant and grievors. It is accordingly submitted that the Labour Relations Act, a collective bargaining statute, does not apply. Counsel contends that section 3 of the Act cannot be construed or interpreted in the abstract but has to be given a meaning consistent with the ambit and scope of the Labour Relations Act. It is counsel's submission that sections like sections 11, 64, 66 and 71 make it clear that the legislation protects activities of a trade union pertaining to the collective bargaining process and to employees as employees. Counsel emphasized that the respondent had not discriminated between political parties and had not, itself, engaged in political campaigning on its own property. Alternatively, it is submitted that section 66(a) has no application because the actions complained of did not affect the employment of the grievors. It is further submitted that sections 11 and 71 which demonstrate encroachment on property rights by the Act are limited to organizing initiatives. Counsel submits that while the "campaigning" by the complainant may be a lawful activity, it is not a protected activity within the meaning of the Act. Counsel suggests that the complainant's position, if accepted, runs perilously close to providing statutory protection to a political party supported by organized labour. Finally, it is submitted the respondent has shown no "anti-union animus" by its no-solicitation rule in that the rule was applied even-handedly and for a bona fide business purpose.

REASONS

15. This Board and other labour Boards have dealt with the right of employees to engage in protected activity on company property but during non-working hours. It is therefore useful to review the general principles applicable to collective bargaining and union activity on company premises before considering the particular activity in issue in this case.

16. Sections 3, 64, 66, 70, 11 and 71 provide as follows:

3. Every person is free to join a trade union of his own choice and to participate in its lawful activities.

4. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

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

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

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

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

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

71. Where employees of an employer reside on the property of the employer, or on property to which the employer has the right to control access, the employer shall, upon a direction from the Board, allow the representative of a trade union access to the property on which the employees reside for the purpose of attempting to persuade the employees to join a trade union.

72. Nothing in this Act authorizes any person to attempt at the place at which an employee works to persuade him during his working hours to become or refrain from becoming or continuing to be a member of a trade union.

Also of relevance are sections 1(1)(b), 1(1)(e), 1(1)(p), 5(1), 7(3) and 14. They provide:

1.-(1) In this Act,

(b) "bargaining unit" means a unit of employees appropriate for collective bargaining, whether it is an employer unit or a plant unit or a subdivision of either of them;

(e) "collective agreement" means an agreement in writing between an employer or an employers' organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers' organization, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the employees, and includes a provincial agreement;

(p) "trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

5.-(1) Where no trade union has been certified as bargaining agent of the employee of an employer in a unit that a trade union claims to be appropriate for collective bargaining and the employees in the unit are not bound by a collective agreement, a trade union may, subject to section 61, apply at any time to the Board for certification as bargaining agent of the employee in the unit.

7.-(3) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade union, and in other cases, if the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit.

14. Following certification, the trade union shall give the employer written notice of its desire to bargain with a view to making a collective agreement.

17. It has been noted that the workplace is the one location where employees are brought together on a daily basis; where they share common interests; and where they traditionally seek to persuade fellow workers in matters affecting their status as employees and as union members. Gale Products (1963), 53 LRRM 1242 at 1243 (NLRB); N.L.R.B. v. Magnavox Company (1974), 85 LRRM 2475 (USSC).

18. The workplace is therefore the most effective location for "union activity" to be carried out. A policy denying this forum to employees would obviously impair the effective exercise of statutory rights particularly the right of self-organization. On the other hand, company premises constitute private property and are established for the primary and important purpose of carrying on business activity. The above sections give some indication how the statute has attempted to balance these legitimate interests. Two lawful activities clearly contemplated within the scope of section 3 are the organization of a trade union and collective bargaining. See Jarvis v. Associated Medical Services Inc. (1961), 61 CLLC ¶16,218 at p.980. Section 64 provides that no employer and no person (reading selectively) shall interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union. Similarly, section 66(c) prevents an employer, among others, from seeking, by any kind of threat or by imposition of any kind of penalty or by any other means, to compel an employee to cease to exercise any other rights under this act. An employer who prevents his employees from attempting to organize a trade union while they are on company premises by a broadly drafted no-solicitation rule backed by disciplinary action runs the risk of violating these sections. See Jarvis v. Associates Medical Services, supra, page 980; Audio Transformer Company Limited, [1969] OLRB Rep. Nov. 994 at 1002. This, of course, does not mean an employer is deprived by the Act of maintaining productivity or discipline or of securing his property from encroachment by strangers with whom he has no relationship. Section 71 makes it clear that no person is authorized by the Act "to attempt at the place at which an employee works to persuade him during his working hours to become or refrain from becoming or continuing to be a member of a trade union". [our emphasis] The purpose of this section is to afford an employer an answer to the charge that he has interfered with a person's rights under section 3 of the Act by preventing that person from attempting to solicit an employee during working hours. The section recognizes the employer's bona fide interest in maintaining an efficient business enterprise and the fundamental obligation of employees to work in return for compensation. But section 71 does not speak to activities outside of an employee's working hours while on his employer's premises. Labour boards have consistently interpreted the phrase "working hours" to refer only to the period of time during which an employee is required to undertake his duties and responsibilities. Therefore the section does not apply to those periods of time an employee is on company property before shift, during coffee break, during lunch break, or after shift. This is so even if the employee is being paid for such time, otherwise an employer could prevent the exercise of statutory activity by the simple expedient of a money payment. The approach of the statute and this Board has been to create a meaningful balance between the statutory rights of employees and the proprietary and commercial interests of employers. See Jarvis v. Associated Medical Services Inc., supra; Audio Transformer Company Limited, supra; Jim Pattison Industries Limited, [1979] 2 Can.LRBR 517 at 520-21; Cominco Limited, [1981] 3 Can. LRBR 499 at 503-504. See Notes, Reversal of N.L.R.B. Policy Regarding No-Solicitation Rules (1982), 34 Baylor L. Rev. 143 at 148. Because the workplace is a most appropriate theatre for membership solicitation, it has been considered reasonable and fair to construe break and lunch periods as non-working time belonging to employees to use as they see fit so long as they do not engage in disorderly conduct or adversely affect other legitimate business interests of the employer. Where they decide to use this time to engage in protected trade union activity, this statute and the remedies available under it apply. To this extent, property rights have been encroached upon by the statute. And while this is a factual issue in any particular case, union solicitation during non-working time will not generally interfere with the employer's legitimate management interests. Any interference must be real and constitute more than a minor annoyance or inconvenience.

19. Dealing with the permissible range of employee activity during non-working time, arbitrator Laskin (as he then was) in Re Canadian General Electric Company, Limited, supra, (1951), expressed the balance of interests in a related fashion more than thirty years ago (919-920):

The half-hour supper period involved in this case is paid time, but not necessarily working time. While supervision is on the job and employees cannot leave the department they are not otherwise controlled. This Board leaves aside such things as damage or danger to Company property or machinery, or interference with employees who choose to work. There is no doubt of the liability to discipline of any employee whose conduct produces any such consequences. What objection can there be, then, to solicitation of one employee by another on Company property at a time when neither is required to work and neither is working and there is no interference with any who are at work? The Collective Agreement between the parties gives no explicit directions on this question. There is only the implicit reach of the Union recognition clause on the one hand, and the general disciplinary power reserved to the Company on the other hand. In such circumstances the decision must be found in weighing the various interests involved.

The union interest in furthering its programme and on increasing its strength as the accredited bargaining agent is obvious. It is an interest, which is, in a sense, independent of any statutory recognition, but with statutory recognition such as exists in Ontario, it enjoys a status which is given positive protection against employer interference. The interest of the employer is the uninterrupted operation of its plant, involving as a corollary disciplinary power over employees both as regards the discharge of their duties and the protection of plant and equipment. If an employee is on free time, as for example, on his lunch hour, is there any impropriety in talking baseball or art or Union? Of course, under a regime of individual bargaining and under circumstances where there is no firm contract of employment, employers need not concern themselves with questions of freedom of communication or of association or of utterance. Discipline may be imposed to the point of discharge for any reason which appeals to management. Does a regime of Collective Bargaining make any difference? It does to the extent to which a Collective Agreement makes an award of discipline subject to the test of reasonable cause. The Collective Agreement between the parties in this case contains this substantial qualification of unfettered prerogative.

Two general arguments were advanced in justification of the Company's right to discipline for distributing literature during the half-hour supper period. It was contended in the first place that the Union and the employees must find their rights in the Collective Agreement, and that unless the Collective Agreement confers rights, the Company remains in sole and full control of the situation. This contention is basically, the argument that pre-collective bargaining employer prerogatives remain unimpaired except as expressly limited. Whatever the merit of the argument, the Company is obligated under its Collective Agreement with the Union to base its exercise of discipline on reasonable cause. This is a sufficient recognition of employee rights to require mutual accommodation between Company and employees. The second argument was that Miss Stone and others had been expressly warned against such activities as those in question here. This argument is a question-begging one because its validity depends on whether management was entitled to give the warning.

The issue in this case comes down, hence, to a particular consideration of the nature of the half-hour supper period and to the competing interests of the Union and management in the use of that period. This Board has already described the nature of the supper interval. While it is paid time it is not controlled time save as Company interest might demand supervision against damage or danger to property or interference with people remaining at work. Beyond this, what conceivable interest would the Company have in forbidding communication between employees? To say that the communication might give rise to altercations or disturbances between employees merely illustrates an occasion for interference which could extend to any period of time and has no special significance relative to this particular supper period. In truth, the more one considers the situation, the more one is driven to the conclusion that the Company's general position on the half-hour supper period is a mere projection of the rhyme "he who pays the piper calls the tune". The rhyme would be apt enough if employees were expected or required to remain at work or if production was continuing. Short of this, and short of any such occasions for discipline as have already been mentioned, the Company has no interest to protect which would warrant curtailing freedom of communication between employees.

However, it must be emphasized that an arbitrator under a collective agreement is not limited to administering rights arising under the Labour Relations Act as is this Board.

20. An employer who nevertheless enforces a no-solicitation rule that has the effect of preventing employees from, for example, soliciting union membership on company premises during non-working time will be found by this Board to have intended this result and therefore to have acted contrary to section 66(c) and section 64 of the Act unless the employer can establish by cogent evidence that its purpose was to preserve property, to prevent serious disturbance, ensure productivity or preserve plant safety. See Audio Transformer Company Limited, supra, page 1003. Where the latter is established, union solicitation that is seriously disruptive of managerial interests can be regulated by an employer even though the incidental affect is to constrain protected activity. In such circumstances, the Board construes the employer's actions as aimed solely at the preservation of its bona fide right to manage.

21. It is to be noted that the statute provides a more specific and different balance between an employer's property interest and the right of non-employees to solicit union membership from employees on company property. In this regard, section 11 provides that where employees of an employer reside on the property of the employer, the employer when directed by the Board, shall allow a representative of a trade union access to the property for the purpose of attempting to persuade the employees to join the trade union. Therefore, the statute acknowledges the right of an employer to raise his property rights against strangers to the employment relationship even though the strangers are union organizers and their involvement on company property during non-working time would not interfere with any bona fide management interest. The attempt here is to accommodate the right of property and the right to organize "with as little destruction of one as is consistent with the maintenance of the other". See N.L.R.B. v. Babcock and Wilcox Company (1956), 38 LRRM 2001 at 2004. If employees have the right to carry on organizing activity on company premises, it does not seem an unfair balance of interests to limit strangers to the usual channels of communication with those employees off company premises. See also the approach of the Supreme Court of Canada in dealing with competing proprietory and collective bargaining claims between strangers, in a case involving an employer's landlord and striking employees in Harrison and Carswell 75 CLLC ¶14,286 (SCC).

22. From this analysis we arrive at the following general principles:

(a) No-solicitation or no-distribution rules which prohibit union solicitation on company property by employees during their non-working time are presumptively an unreasonable impediment to self-organization and are therefore invalid; however, such rules may be validated by evidence that special circumstances make the rule necessary in order to maintain production or discipline;

(b) No-solicitation or no-distribution rules which prohibit union solicitation by employees during working time are presumptively valid as to their promulgation, in the absence of evidence that the rule was adopted for a discriminatory purpose or applied unfairly; and no-solicitation or no-distribution rules which prohibit union solicitation by non-employee union organizers at any time on the employer's property are valid in the absence of an application for a direction pursuant to section 11.

23. The issue before the Board is whether or not the posted notices and distribution of the above reproduced pamphlet by members of the complainant (who are employees of the respondent) are governed by these same principles.

24. The substance of the complainant's argument is that a trade union is defined by the Act only "to include" the objective of regulating relations between employees and employers and, therefore, that all other lawful activities of a trade union fall within the meaning of section 3 and constitute "other rights under this Act" as that phrase is used in section 66. Implicit in this submission is that trade unions can, by unilaterally setting their objectives, expand or contract the scope of statutory protection afforded to them and their members by the Act. This somewhat breathtaking proposition requires careful analysis.

25. As the complainant's objectives reveal, it is committed to activities, including collective bargaining, aimed at improving the general welfare of employees and securing an atmosphere more favourable to the activities of unions generally. Realistically, certain trade union objectives cannot be achieved through negotiations such as public education, social insurance of various kinds, adequate housing and effective economic management of the economy. Other objectives can be achieved much faster through legislation such as minimum wages, maximum hours, health and safety standards, minimum union security provisions, and labour law reform generally. Indeed, the passage of the Labour Relations Act itself is, in part, a product of broader trade union activity. The Canadian Labour Congress, to which many of Canada's trade unions are affiliated, has always had as one of its purposes, the focusing of organized labour's broader objectives. It is therefore clear that trade union activity involves more than just face to face collective bargaining negotiations in the pursuit of employee interests. The formal certification of a trade union does not change this organic nature of a trade union organization or its relationship to its members.

26. On the other hand, the dominant purpose of the Labour Relations Act, as discerned from its provisions, is much more narrow and as stated in the preamble, centers on the furtherance of "harmonious relations between employers and employees by encouraging the practices and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees". To this end the statute creates an elaborate framework to allow employees to freely designate trade unions as their exclusive bargaining representatives in their relationships with their employers. Once certified, a trade union legally speaks for bargaining unit employees with respect to "terms or conditions of employment or the rights, privileges or duties of employers". (See, for example, sections 1(1)(e). 5, 7, 15, 49, 50 and 67). The Act deals with a restricted but vital area of trade union interests - the collective bargaining process. It is this dominant purpose of the statute and all related activity necessarily incidental to this purpose which demarcate the Board's jurisdiction.

27. This observation with respect to the fundamental purpose and scope of the Act does not minimize the Board's role in the labour relations community nor does the observation decide this case. There is much related activity that is necessarily incidental to the Act's dominant purpose. This is the point of such cases as C. P.R. v. Zambri 62 CLLC ¶15,407 (dealing with the protection afforded to striking employees); Valdi, [1980] OLRB Rep. Aug 1254, (dealing with the statutory rights of shop stewards); and St. Catharine's General Hospital, supra, (dealing with the freedom of speech of a local trade union president). The Act does not spell out each and every right and obligation of labour and management. This Board is left with the task of applying the Act's general language in the light of an infinite variety of circumstances which may arise. A rigid scheme of regulation is avoided and flexibility is provided although all within the limitations necessary to effectuate the dominant purpose of the Act.

28. This case pertains to the ambit of workplace communications by a trade union with bargaining unit members enforceable under the Act. The applicant placed much reliance on section 1(1)(p) defining a trade union, in effect, as an organization of employees formed for purposes "that include" collective bargaining. We agree this is statutory recognition of the purpose of trade unions over and above the representation of employees in collective agreement negotiations. But that definition does not create positive statutory rights. Rather, it avoids a potential disentitlement to certification because of objectives not restricted to collective bargaining matters. Other statutes are considerably more confining. See Crown Employees Collective Bargaining Act, R.S.O. 1980 c.1083 (1)(1)(g). Thus, it is not enough for the applicant to point to its constitution and the long-standing interest of trade unions in political action to entitle it to the relief requested. Rather, the Board must be satisfied that the statutory right contended for is consistent with and arises out of the dominant purpose of the Act as discerned from its provisions and preamble.

29. One reason this case is difficult is that heretofore the parties in this jurisdiction have been relatively inactive in requesting this Board to elaborate rights implicit in the statute in contrast to their counterparts in the United States. See Eastex Inc. v. NLRB (1978) 98 LRRM 2717 at 2720, footnote 13. As a result, there are only the few Board cases mentioned above that provide a decisional foundation for the applicant's complaint. Indeed, it is somewhat anomalous that the Board is being asked to elaborate this important area of its mandate to-day by way of an asserted right which, no matter what our ultimate decision, is clearly at the boundary of the statute.

30. A second reason the case is difficult stems from the relationship between collective bargaining and politics. The applicant asserts that the pamphlet focuses on workplace concerns and constitutes a method of communication between itself and its members. The respondent emphasizes that the pamphlet is authorized by the NDP and centers on issues relevant to a political election. The respondent therefore sees the complainant as asserting a political right because of its connection with the NDP whereas the complainant seeks to show the relationship between political issues and legitimate workplace concerns of trade unions and employers. In a mixed economy any attempted demarcation between collective bargaining and politics may lack economic reality and not sufficiently acknowledge the impact of governments on the workplace. See generally, Hyde, Economic Labor Law v. Political Labor Relations: Dilemmas for Liberal Legalism (1981), 60 Texas L.Rev.1. This may be particularly true in the context of public sector labour relations or major government initiatives into the workplace such as wage and price controls. Learned commentators have also observed that history proves trade unions cannot afford not to be politically active. See Woll, Unions in Politics: A Study in Law and Workers' Needs (1961), 34 So.Cal.L.Rev. 130 at 149; Horowitz, Canadian Labour in Politics (1968). And see Comment, The Regulation of Union Political Activity: Majority Rights and Remedies (1977), 126 U.Penn.L.Rev. 386 at 389. On the other hand, there are clear institutional differences between collective bargaining activity and political action. Whatever the general economic relationship of these two processes, the principal institutions operate at different levels and are distinct. Indeed, the complainants own explanatory pamphlet for on-the-job canvasses acknowledges this labour relations reality by distinguishing between canvasses "on bargaining", "on workplace issues" and "on political issues".

31. The Labour Relations Act is part and parcel of this legal and institutional view of labour relations as a workplace phenomenon centering on the relationship between employers and employees although the voting patterns of employees may suggest that the demarcation between workplace and political concerns is more than just an institutional or legal phenomenon. See Horowitz, supra. Thus, while collective bargaining may reside in a sea of economic uncertainty and many trade unions may have long foregone operating exclusively under the ethos of business trade unionism, one finds little or no acknowledgement of these matters in the provisions of the Act. We must remember that the Labour Relations Act did not create trade unions, they were in existence long before its enactment. It rather supports and regulates the collective bargaining process, only one of the many legitimate activities of trade unions. Some indication of this limited theme of the Act is found in sections 11 and 71 which make specific reference only to the traditional organizing activity of trade unions on an employer's property. A reading of any of the other provisions of the statute only serves to confirm that the statutory status of a trade union is as a bargaining agent for bargaining unit employees. From this perspective, it is far from self-evident that the political and social goals of a trade union, no matter how important or worthwhile constitute rights under the Act even where these foals, if achieved, could improve the lot of employees. Certainly it can be "argued' that the election of any political candidate may have an ultimate effect on employment conditions, but traditional electioneering is clearly removed from the central focus of the Labour Relations Act. Moreover, unlike most trade union activities, political canvassing is conduct engaged in by a great variety of institutions and persons not covered by the Labour Relations Act. The complainant is therefore seeking a right that others wishing to engage in the same activity cannot claim. This in itself is reason for caution.

32. As an aside, it is also interesting to note section 13.01 of both collective agreements between the parties which read:

The Company will designate enclosed bulletin boards which may be used by the Union solely for the purpose of posting Union notices and official papers and will provide the Local Union President with a key to the bulletin boards. Such material will be posted only by officers of the Local Union, a copy of which will be provided to the personnel office prior to posting.

While this complainant claims a statutory right to communicate to its members on company premises over any matter it wishes, it has bargained a clause which requires it to submit all notices it wishes to post. Trade unions have historically bargained over various methods of workplace communication after certification and, in many instances, have acknowledge in collective agreements that the range of items to be communicated by a trade union as an institution on an employer's premises is not unlimited. This Board is usually encouraged to apply its "collective bargaining expertise" in resolving the issues before it. What then is the relevance of such labour relations community practices in this case?

33. A final troublesome aspect of the case is that the complainant's claimed right is easily confused with basic employee freedoms in the workplace and certain general notions of "industrial democracy". In a real sense it could be asked what employer interest is sufficient to impede the dissemination of ideas in the workplace. As the Canadian General Electric case extensively quoted from above makes clear, an employee's time when not working is his own. Notwithstanding that the employee takes his lunch or coffee break on company premises, an employer generally has no bona fide management interest in restricting conversation and association between employees. In the context of this case we would observe that political issues during a general election are going to be discussed informally by employees and with the protection of a 'lust cause" clause, cannot be disciplined for engaging in such discussions during breaks or on other non-working occasions. The grievance arbitration process has enshrined in the arbitral jurisprudence under collective bargaining agreements certain fundamental tenets of industrial democracy and has thereby provided employees with a number of general rights or freedoms. See Adams, Grievance Arbitration of Discharge Cases (1978) Industrial Relations Centre, Queen's University. In fact, the complainant relied on a large number of such arbitration decisions. While the jurisdictions of arbitration boards and labour boards are in many ways complimentary, they are not the same. For example, an employee unfairly dismissed for other than anti-union reasons has no redress under the Act, but may be reinstated by an arbitration under the terms of a collective agreement. To say a certain course of conduct cannot be claimed as a statutory right enforceable by this Board, is not to say that a right to engage in the activity does not exist. It may well exist under a collective bargaining agreement. This Board has a responsibility to elaborate its mandate creatively and in tune with contemporary values. But it does not have an unfettered mandate under section 3 to decree a complete range of fundamental workplace rights and freedoms it thinks to be appropriate in a free and democratic society. The parties, arbitrators under the authority delegated to them by the parties, and legislatures bear the major burden of this general responsibility. The Board's mandate is constrained by the purpose of the Act and its continuing credibility with labour, management and the courts depends upon the Board's acknowledgement of this fact.

34. The complainant relied heavily on Eastex v. N.L.R.B. (1978), 98 LRRM 2717 (U.S.S.C.) where a trade union sought to distribute a news bulletin on company premises during non-working time dealing with (a) importance of attending union meetings; (b) a request that every member write to their state congressman and senator in protest of a "right to work" law being incorporated into the state constitution; and (c) criticism of President Nixon for vetoing an improvement to the Minimum Wage Law and closing with the observation that "as working men and women we must defeat our enemies and elect our friends. If you haven't registered to vote, please do so today". In writing the court's opinion, Mr. Justice Powell found the activity to be protected and wrote:

We also find no warrant for petitioner's view that employees lose their protection under the "mutual aid or protection" clause when they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship. The 74th Congress knew well enough that labor's cause often is advanced on fronts other than collective bargaining and grievance settlement within the immediate employment context. It recognized this fact by choosing, as the language of ¶7 makes clear, to protect concerted activities for the somewhat broader purpose of "mutual aid or protection" as well as for the narrower purposes of "self-organization" and "collective bargaining". Thus, it has been held that the "mutual aid or protection" clause protects employees from retaliation by their employers when they seek to improve working conditions through resort to administrative and judicial forums and that employees' appeals to legislators to protect their interests as employees are within the scope of this clause. To hold that activity of this nature is entirely unprotected - irrespective of location or the means employed - would leave employees open to retaliation for much legitimate activity that could improve their lot as employees. As this could "frustrate the policy of the Act to protect the right of workers to act together to better their working conditions," NLRB v. Washington Aluminum Co., 370 U.S. 9, 14, 50 LRRM 2235 (1962), we do not think that Congress could have intended the protection of ¶7 to be as narrow as petitioner insists.

It is true, of course, that some concerted activity bears a less immediate relationship to employees' interests as employees than other such activity. We may assume that at some point the relationship becomes so attenuated that an activity cannot fairly be deemed to come within the "mutual aid or protection" clause. It is neither necessary nor appropriate, however for us to attempt to delineate precisely the boundaries of the "mutual aid or protection" clause. That task is for the Board to perform in the first instance as it considers the wide variety of cases that come before it. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798, 16 LRRM 620 (1945); Phelps Dodge Corp. v. NLRB, 313 U.S. 77, 194, 8 LRRM 439 (1941). To decide this case, it is enough to determine whether the Board erred in holding that distribution of the second and third sections of the newsletter is for the purpose of "mutual aid or protection".

While many of the observations in this passage may be relevant to this jurisdiction, it is important to note that the N.L.R.B. found that the issue of union security was central to union strength and solidarity as well as being a mandatory subject of bargaining and that while the employer's employees received well over the minimum wage proposed in the pending Minimum Wage Bill, any minimum wage inevitably influenced wage levels derived from collective bargaining, even those far from the minimum. The Supreme Court held that these findings were within the range of the Board's discretion and went on to specifically find that all three sections of the letter constituted protected activity under the "mutual aid or protection" clause of section 7. But in a footnote to that conclusion, the Court had the following to say about "purely political matters":

Petitioner argues that the "right to work" and minimum wage issues are "political", and that advancing a union's political views is not protected by section 7. As almost every issue can be viewed by some as political, the clear purpose of the "mutual aid or protection" clause would be frustrated if the mere characterization of conduct or speech removed it from the protection of the Act. See cases cited in N.16 supra. Moreover, what may be viewed as political in one context can be viewed quite differently in another. There may well be types of conduct of speech that are purely political or so remotely connected to the concerns of employees as employees has to be beyond the protection of the clause. But this is a determination that should be left for a case by case consideration. Compare cases cited in N.18, supra.

[our emphasis]

35. Two of the cases cited in footnote 18 are Ford Motor Company (1975), 221 NLRB 663; and Ford Motor Company (Roughe Complex) (1977), 233 NLRB No. 102. In the first Ford Motor Company case the Board was confronted with a newsletter published by a group within the U.A.S. not representative of its officials and which attacked the policies of labour unions to endorse candidates from either the Democratic or Republican parties and favoured the establishment of the Independent Party of Labor. References were made to Watergate, the coverup, inflation and recession. The Board affirmed an administrative law judge ruling that the newsletter was "a purely political tract exorting employees not to support the traditional parties and their candidates in the 1974 congressional elections but to seek an independent workers' party" and that the newsletter was "wholly political propaganda which [did] not relate to employees' problems and concerns qua employees". The administrative law judge went on to hold:

While it may be argued that the election of any political candidate may have an ultimate effect on employment conditions, I believe that to be sufficiently removed so as to warrant an employer to prohibit distribution on its property of material solely concerned with a political election. Accordingly, I find the November 4th newsletter not to be protected and respondent's denial of permission to distribute it not violative of the Act.

In the second Ford Motor case the general counsel conceded that distributions on the employer's premises of literature urging participation in revolutionary communist party celebration and of the party's newspapers were unprotected. Similarly in Auto Workers, Local 174 v. NLRB (1981), 106 LRRM 2561 the District of Columbia U.S. Court of Appeals affirmed a labour board order refusing to allow union members to distribute during non-working time in non-working areas a plant leaflet that was entitled "Protect your hard-won collective bargaining gains - VOTE on Tuesday, November 7" and that featured union-endorsed candidates for Governor, U.S. Senator, and Justices of the Michigan Supreme Court.

36. It can be argued that engaging in this type of regulation is unwise because of the absence of meaningful and precise standards. As the United States Supreme Court acknowledge, the term "political" is capable of describing almost any issue or speech. This Board too accepts the problematic nature of drawing lines in these kinds of cases but, as in other areas of the statute, regulatory difficulties are no justification for no regulation. Administrative agencies were established to deal creatively and sensitively with just such problems. We are of the view that limitations in this area are contemplated given the dominant purpose of the statute and that such limitations can be administered by this Board without contributing to industrial relations conflict.

37. The material in the instant case is clearly not as telescoped on workplace problems as in Eastex. The complainant sought to distribute the pamphlet in the context of a federal political election. The pamphlet, on its face, has the approval of the NDP and its distribution was part of a joint action program involving that political party and its trade union affiliates. One sees the claim in the information pamphlet describing the canvass that a similar on-the-job canvass was important in defeating a right-wing conservative government. The pamphlet contrasts statements made by representatives of each of the federal political parties on the general political and economic issues of employment levels, interest rates and fuel costs. This pamphlet itself makes a distinction between canvasses "on workplace issues" and those "on political issues". On considering the material as a whole, we have come to the conclusion that in the circumstances of this case the activity is too remotely connected to the dominant purpose of the Labour Relations Act to attract the right asserted by the complainant. In our view, the communications in issue before us are not as connected to concerns of the bargaining unit employees as employees as they are to their concerns as voters. The complainant is therefore not communicating to bargaining unit employees primarily because of its status as their exclusive bargaining representative but rather as an affiliate or supporter of a political party seeking the electoral support of certain employees. In this context, the trade union canvasser is no different than any other political canvasser. A trade union should not be able to use its certified bargaining agent status to capture an audience for its political canvassing activities.

38. This conclusion, of course, does not bear on the issue of whether or not an arbitrator would uphold discipline issued to employees who engaged in the activity contrary to the respondent's direction. At least one arbitrator has held that an employer violated a collective agreement by interfering with the distribution of pamphlets in circumstances similar to the instant case and nothing we have said should be taken as disagreeing with that result. See Re Air Canada and Canadian Airline Employees, supra. Our decision only reflects the acknowledged difference in jurisdiction between labour boards and arbitration boards.

39. Finally, this decision should not be taken by the labour relations community as licensing the primary censoring of trade union communication with bargaining unit members in the workplace. The pamphlet in question, in context and content, has not triggered the right asserted. Specific and contested government workplace initiatives may justify a different response. Moreover, primarily collective bargaining oriented communications containing other miscellaneous information or comment may be subject to different considerations. While this case makes it clear we are not going to permit an abuse of rights under the Act, we are not signalling an era of refined regulation of workplace communication by either this Board of employers.

40. This complaint is dismissed.

DECISION OF BOARD MEMBER JAMES A. RONSON;

1. I agree with Chairman Adams in the disposition of this case, but not with all his reasoning for so doing. It seems to me that the Board is being unduly restrictive on the response employers may take when faced with organized political campaigning on their premises.

2. There are three factual aspects of this case that require emphasis:

A. The union is clearly acting as the affiliate or agent of a registered political party in seeking to distribute literature and conduct a canvass of employees on the employer's premises;

B. The employer has banned all political campaigning on its premises by anyone. If that is censorship within the dictionary definition of the word, then the employer is also restricting its own rights; and

C. There is no doubt that the union views the employees at the workplace as a captive audience for its purposes here. We were advised at the hearing of the poor attendance at union meetings.

3. With respect to future cases arising out of political issue campaigning (as compared to political party campaigning) it seems to me to remain open for employer argument that:

(a) organized political issue campaigning is disruptive per se; and

(b) the parameters of employer interest or rights deserving protection extend beyond the boundaries set up in Re Canadian General Electric Company Limited (Peterborough), supra, when political issue campaigning takes place. The ideology behind the issue cannot be ignored when the extent of employer interest is being considered.

DECISION OF BOARD MEMBER H. KOBRYN;

I cannot agree with the narrow view taken by the majority of this Board in regards to the literature herein complained of for the following reasons:

1. The substance of the respondent's argument is that the Labour Relations Act has been established to regulate collective bargaining relationships between trade unions and employers. Implicit in the Act, counsel contends, is that trade union activity protected by the legislation consists of the pursuit of collective bargaining objectives, and the solicitation of union membership. For this submission, reliance is placed on the wording of sections 64, 66 70, 11 and 71. However, section 1(1)(p) defines a trade union as an organization for the purposes that include the regulation of relations between employees and employers and section 66 provides no specific protection to the collective bargaining activities of a trade union or the right of trade union members to engage in this process. To provide such protection the Act must be read as a whole and reliance placed on section 3 and the phrase "other rights under this Act" contained in the various sub-paragraphs of section 66. See Jarvis v. Associated Medical Services, supra; Valdi, [1980] OLRB Rep. Aug. 1254 or thereabouts; St. Catharines General Hospital, [1982] OLRB Rep. Mar. 441. See also C.P.R. v. Zambri (1962), 62 CLLC ¶15,407 (S.C.C.). Such activity may also fall within the protection afforded by section 64 which is a more self-contained section. From this view then the phrase "exercising any other rights under this Act" found in section 66 has to be given a content over and above union membership or union solicitation. However, the respondent asserts that a proper construction of the legislation should limit the phrase to collective bargaining activities of a trade union. Such as the right to strike, picket, and the dissemination of information pertaining to collective bargaining and contract administration. The Act provides an elaborate mechanism for controlling the collective bargaining process and it is a matter about which an employer has an obvious interest. This being so, encroachment on an employer's property rights to pursue such activities appears justifiable. In the instant case, however, the trade union seeks to distribute literature pertaining to a federal election over which the employer has no control and no interest qua his status as employer of the grievors. It is in this context that counsel for the respondent submits that political activity, while clearly a lawful activity of a trade union, should not be considered a protected activity within the meaning of the Act. The test then proposed by the respondent is whether or not the employer has a direct interest in the subject matter of activity for which protection is claimed.

2. If the test is to be whether or not the employer has an interest or a controlling say, it would mean that there is no statutory protection for union members who wish to campaign for union office; who assist in organizing another employer's employees; who may participate in a demonstration in support of another employer's employees; who might wish to distribute literature in support of another employer's employees; who engage in presentations to public bodies for change in workplace conditions in general and over which an employer may take exception; and who seek and publicly lobby for legislative change pertaining to the workplace. All of these actions are regularly engaged in by union members and have been held to be protected in the United States under the National Labor Relations Act. Section 7 of that statute provides:

Employees shall have the right to self-organization, to form, join, or assist labour organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

I am of the view that the combination of section 1(1)(p) and section 3 together with a common-sense understanding of labour relations really provide no lesser scope for protection. See Jarvis v. Associated Medical Services, supra. Depending on the circumstances, any of the above activities may be protected under this Act.

3. A very restrictive approach to the activity of trade unions under the Act is capable of producing intractable problems in the no-solicitation area. The Chairman has already observed that the workplace is the most effective forum for trade unions to communicate with their members and employees for this reason. It is a natural location for the distribution of trade union literature, newsletters and notices of interest to the bargaining unit. Many of the notices and much of the newsletters will deal with collective bargaining activity but aspects will almost certainly relate to social and political activities of trade unions aimed at improving the lot of employees without the assistance of their employers. Not to protect the dissemination of all such notices and literature would fail to recognize the full nature of trade unions and involve the Board and employers in the censoring of communication. It seems to me that this narrow approach to the Act is inconsistent with contemporary labour relations reality.

4. However, the literature in question is characterized by the respondent as purely political and of direct interest only to the New Democratic Party. The material was not part of a general newsletter and not aimed at specific workplace reforms. Unfortunately, it is not an easy task to draw the line between protected activity and purely political action as Eastex Inc. v. N.L.R.B. (1978), 98 LRRM 2716 quoted in the Chairman's opinion shows.

5. In determining whether or not this Board should adopt a "purely political" test in determining the ambit of activity protected by the Act, it is difficult to ignore that trade unions in this country have a long history of political activity. Indeed, labour legislation is in part, a product of such activity and in Canada and the U.S. there have been specific attempts to regulate the scope of trade union political activity. See Oil, Chemical and Atomic Workers International Union v. Imperial Oil Limited (1963), 41 D.L.R. (2d) p.1; Pipefitters Local 562 v. U.S. (1972), 80 LRRM 2733; Machinists Assn. v. Street (1961), 48 LRRM 2345 (USSC) all dealing with the utilization of trade union funds for political activity. See generally also G. Horowitz, Canadian Labour and Politics U. of Toronto Press, 1968; J. K. Wanczycki, Union Dues and Political Contribution, Great Britain, United States and Canada - A Comparison (1966) 21 Ind.Rel.Quat.Rev.143; McIntosh, A Comparative Study of Legislative Control of Union Political Activity in England, United States and Canada with Final Emphasis on Public Sector Unions in Canada (1976) Queen's Law Journal 58, Woll, in Unions in Politics: A Study in Law and the Workers' Needs (1961) 34 Southern California Law Rev. 130 at 149 writes:

The preceding historical sketch provides an empirical demonstration that political and legislative activity is an essential part of any realistic effort by workers to improve and maintain their bargaining position, and to secure an atmosphere favorable to their general economic and social advancement. Numerous disinterested labor economists stand ready to verify this conclusion.

Professor Lloyd G. Reynolds of Yale summed up the matter in this way:

It is often debated whether unions should "go into politics"; really, they have no choice in the matter. They are automatically in politics because they exist under a legal and political system which has been generally critical of union activities. The conspiracy suit and the injunction judge have been a problem for unions from earliest times. A minimum of political activity is essential in order that unions may be able to engage in collective bargaining on even terms.

In addition to emphasizing that labor cannot even engage effectively in collective bargaining without a certain amount of political action, Reynolds discusses two other practical reasons for labor political activity. First, certain objectives in which labor has an interest cannot be achieved at all through collective bargaining. These include public education, social insurance of various kinds, adequate housing and effective anti-depression measures. Secondly, certain objectives which might be achieved through collective bargaining can be achieved much faster through legislation. This category embraces legislation covering minimum wages, maximum hours and the elimination of child labor. Reynolds assigns prime responsibility for the progress of social legislation to the "increasing political awareness of trade unions. At the same time, however, he concludes that the increase in the political influence of organized labor has been offset by a simultaneous increase in lobbying by groups directly opposed to labor. The net result is that the workers' political power "is still not very great" vis-a-vis other groups.

Two other scholars, Daugherty of Northwestern and Parrish of Illinois, give as the reason for unionists' interest in politics their recognition of "their inability to cope with anti-union employers on equal terms on the economic field, [and] ... their inability to protect their members against the vicissitudes of depression," together with their discovery of "what a great difference a favorable government made in their fortunes."

Princeton economist Richard A. Lester even defines a labor union in political terms, stating that it is "a political organization representing the members' job interests and their viewpoints on political and social issues." He emphasizes that unions "perform educational functions and help to reconcile conflicts of interest," and so serve "a beneficial role in a democratic society."

6. Acknowledging that the debate concerning the appropriate role of labour unions in American politics has been marked by a high degree of emotionalism, the comment entitled The Regulation of Union Political Activity: Majority and Minority Rights and Remedies (1977), 126 University of Pennsylvania Law Rev. 386 at 389 goes on to observe:

When unions enter the political fray, their greatest asset is not the financial resources they command, but rather "the web of personal and institutional influences by which they are linked to large numbers of people in relationships of dependence and respect". Indeed, a reliance on economic force alone would place labor at a permanent disadvantage with respect to corporations, which generally have substantially greater financial resources.

7. It is also useful to note that Canadian arbitration decisions contain many related findings that union activity can include actions far outstripping the more immediate collective bargaining with employers. Cases have held that the distribution of a union newsletter on company premises describing the company pleading guilty to a charge of misleading advertising to be a permitted union activity within the collective agreement (see Re Texpack Limited and Canadian Textile and Chemical Union, supra); that an employee must be given a leave of absence to assume a full-time position with a union even though the principal purpose of the position was to assist in a "parallel campaign" endorsed by the CLC and CUPE and to coincide with the election campaign conducted by the national political parties (see The Corporation of Borough of Etobicoke, supra); that the distribution of New Democratic Party pamphlets on an employer's premises to fellow employees constitutes "lawful activity on behalf of a union" within the meaning of a collective agreement (Re Air Canada and Canadian Airline Employees, supra); that a notice relating to a demonstration to be held on Parliament Hill in Ottawa protesting the Federal government's wage and price control legislation was properly placed on a company bulletin board provided to the union in that it was a matter "pertaining only to the union" (Re Pembroke General Hospital, unreported decision of J. F. W. Weatherill, dated November 1, 1976); and that a leave of absence to visit other locals of the same union in the United States who were on strike against the American parent constituted a leave "for the transaction of union business" within the meaning of the collective agreement (Re Canadian Timken Limited, an unreported decision of Professor Raynard, dated November 6, 1978). On the other hand, members of a union who requested a leave of absence to attend a protest march against the Federal government's anti-inflation program could not bring themselves within a leave provision provided for "union business" (see Re Wheatly Manufacturing (1975), 1976 CanLII 2105 (ON LA), 12 L.A.C. (2d) 251). Similarly, the denial for requests for leaves of absence for certain union members in order to attend a demonstration on a picket line at another company was upheld on the basis that the leaves did not relate to a direct relationship with "legitimate union business" within the meaning of the agreement (See Re G. S. W Limited, an unreported decision of O. B. Shime, Q.C., dated April 25, 1979). See also Inco Limited, unreported decision of W. R. Martin, Q.C., dated January 15, 1980. Clearly arbitrators have made serious efforts to accommodate a full range of trade union interests and recognized the importance of the workplace in the pursuit of these objectives.

8. The issue of trade union political activity is therefore familiar to collective bargaining participants. Trade unions have historically pursued the interests of their members both across the bargaining table and in the political arena. For trade unions the political and collective bargaining processes are inter-related. Pressure can be taken off collective bargaining by legislative change and pressure can be imposed by it. In the pursuit of workplace improvements and the preservation of existing benefits political activity can assume an important role. Moreover, the distinction between lobbying for change or contesting specific laws and purely political activity during an election is difficult to make in Canada where organized labour is, to a vast degree, associated with one political party. I have, against the history of trade union political activity and its close relationship to workplace goals, come to the conclusion that the distribution of the literature in the circumstances of this case constitutes a lawful union activity within the meaning of section 3 and protected by the statute. The objects of the on-the-job canvass include the strengthening of communication within the union; the canvass was a joint endeavour on behalf of the complainant and the CLC; the union's constitution clearly envisages such activity; and the specific pamphlet makes prominent reference to the employee's perspective.

9. The question remains, however, whether the complainant is entitled to distribute the pamphlet in non-working areas of the respondent s property during non-working time. In effect, does the fact that the activity takes place on the respondent's property give rise to a countervailing interest that outweighs the section 3 rights in that location. It is my view that the finding that an activity falls within the meaning of section 3 entitled the employees to engage in that activity on company premises provided the activity is to be confined to non-working time and does not interfere with bona fide management interests. In other words, the basic principles set out in paragraph 22 are to apply. The Board should be reluctant to establish classes of protected activities by employees on the understanding that less substantial of protected activities cannot encroach upon an employer's property rights without his consent. The approach would encourage a degree of censorship by employers in the workplace that would be inconsistent with harmonious labour relations and contemporary values.

10. Furthermore, the union's fear for the job security of its members as expressed in this literature was very real, same is confirmed by the various articles quoted below. The statement made by the Honourable Jean-Luc Pepin, a leading member of the present Federal Government was made on August 13, 1982 and quoted in the pamphlet. It is necessary to quote much more of the Article, to get its full implications. It was entitled "Layoff a must for Canada to Beat Inflation, Pepin says" by Bob Hepburn, Toronto Star, Ottawa –

Canadian companies will definitely have to lay-off workers in order to stay within the federal government's new 6 percent wage and price guidelines, Transport Minister Jean-Luc Pepin admitted yesterday.

"There is no doubt that to meet those objectives corporations will have to lay off people," Pepin said. Layoffs caused by Ottawa's new wage and price restraint program are "one way of increasing productivity, isn't it?" Pepin said.

"This is the way (companies) can stay at the 6 and 5," he said, referring to federal government's program of voluntary wage and price guidelines of 6 percent in next 12 months and 5 percent in the following year. Pepin made his comments while announcing that Canada's major airlines and railways will limit their price and wage increases to 6 and 5 percent for next two years.

Jobs eliminated

His announcement came just hours after Air Canada said it would eliminate about 2000 jobs in the next year and Canadian National said it would cut another 5000 jobs. CN already has eliminated 5000 jobs this year because of poor business conditions. More than 1.3 million Canadians already are unofficially out of work, with the unemployment rate standing at a staggering 11.8 percent, the highest level since the Depression.

This statement confirms what many in Labour have been saying that this present economic depression was well planned by the Government and its successful execution has exceeded their wildest expectations, in fact this depression is out of control. In our opinion the sole purpose of this well planned depression was to destroy the moral and confidence of the Canadian working people by instilling in their minds by this most drastic and uncontrollable action, that they could or will be the next group of employees to lose their jobs.

11. The next statement or article that confirms how successful this planned program is and that it is out of control, appeared in the Toronto Globe and Mail on October 15, 1982 under the title "Permanent layoffs up 90% this year with plant closings" by Tony Van Alphen.

"Labour Ministry statistics show that 25,745 workers were out of work, either laid-off permanently or for varying periods, in the first eight months of this year, compared with 9,362 in the same period last year and 22,241 for all of 1981.

Of those figures, the number of workers who lost their jobs permanently because of company closings jumped 90 percent - 6,667 workers in the first eight months of 1982, compared with 3,452 in the same period last year.

The Labour Minister and spokesmen for business and labour say the number of Ontario workers affected would be considerably higher if the Ministry included cuts from all companies with fewer than 50 employees ."

"Employment and Immigration statistics show the number of layoffs has increased across Canada by about 195 percent in the first eight months of this year to 220,309 from 74,604 in the same 1981 period.

But a department official said the statistics are not complete since reporting by companies is not mandatory and some regions keep better records than others ."

12. The next article that leaves no doubt about Government's policy on this subject matter appeared in the Toronto Star on November 8, 1982 under the title "Liberals missed the point."

"For a governing party that is offering the public - by the finance minister's own calculations - 12 percent unemployment for at least another year, the federal Liberals were surprisingly complacent at their weekend policy convention.

There was no outcry for a fundamental change in economic policy, no serious questioning of Prime Minister Pierre Trudeau's leadership, no insistence on putting absolute priority on getting Canada's 1.3 million unemployed back to work.

That's hard to understand. If the Liberal Party's grass-roots weren't galvanized by the human misery that current policies are causing, one might at least have expected them to be preoccupied with the likely political consequences: High unemployment is historically an issue that defeats governments in this country. Considering the Liberals already dismal standing at the polls, it is difficult to see how they can be hopeful of winning the next election - under Trudeau as any other leader - if the current mess is allowed to persist for another year. And yet the convention was illuminated by no sense of emergency.

Though this sidestepping of the most burning issue of the day casts a tinge of unreality over the whole proceedings, some other aspects of the convention were positive."

13. Now, did the employees in this instance have any real fears about their job security? Well, there are two very interesting articles on this very subject matter that confirm that they had many reasons to fear for their jobs. The first of these Articles appeared in the Toronto Star as a special on September 17, 1982 under the title "12,600 miners laid off 3 more months by Inco".

"Sudbury - Miner Don Curry and 12,600 other Inco workers got the bad news last night: They won't be going back to work until Jan. 3.

"I haven't worked in four months now and the prospect of not working for another four months is very disturbing to me," said Curry, after Inco Ltd. announced it would be extending its summer shutdown, which began July 2, by three months. He and his fellow miners thought they would be back on the job by Oct. 3 after a long summer layoff and they sat in stunned disbelief as they heard the news from the mining giant.

Sudbury officials said news of Inco's extended shutdown came as no surprise but added that there is an urgent need to diversify the city's economy. "Frankly, it's of no surprise based on the bad news on the metal markets generally that the company had to take these measures," said Bob Bateman, president of the Sudbury and District Chamber of Commerce... Last week Falconbridge Ltd., Sudbury's second largest employer, said it plans to extend its 13 week summer shutdown by an additional 14 weeks. Approximately 4,000 workers are affected.

The extended shutdown came in the wake of massive layoffs announced earlier this summer by both Inco and Falconbridge. Last month Inco said it planned to layoff indefinitely about 1,050 hourly paid workers at its Sudbury operations this January and in June Falconbridge announced it will reduce its Sudbury workforce by almost 1,000 workers in January as well."

The second article in this regard is titled: "Schefferville: The death of a mining town" Toronto Star, November 10, 1982 by Jennifer Robinson, although this article is a little later but the handwriting was already on the wall. A short quote from this article enlightens you as to what is happening to the workers dream of job security especially in the mining industry. Quoting from the Schefferville article in part:

"Dick MacDonald, who works in payroll at Iron Ore and is one of a handful of workers kept on, for now, has worked in Schefferville for 18 years. He will soon be added to the list of more than 70,000 mine employees in Canada who have been laid-off because of the recession."

14. The following article confirms that this planned depression or recession is out of control. This article appeared in the Toronto Star on November 10, 1982 under the title: "CN President predicts disastrous loss"

Montreal - "Canadian National Railways president Maurice Le Clair has reversed months of cautious optimism with the prediction of a "disastrous" year-end loss for the Crown owned Company.

"I think we will be showing a loss, a substantial loss, at the end of the year," he said at a news conference yesterday.

"It will be a lot more than we expected two months ago. I have no figures but it will be very high, disastrous."

15. There is no disagreement that high interest rates are one of the major causes of inflation. They drain everyone's ability to survive with its subsequent effect on the job market. High interest rates and high unemployment have eroded consumer confidence. Consumers have virtually stopped spending, this in turn affects the need for new jobs, in fact this has caused existing jobs to disappear at a most alarming rate as confirmed by the articles quoted above. High interest rates have caused high debt charges to most businesses which in turn affects their ability to expand their facilities if and when it is required. These same high interest rates equally affect the farmers where they cannot acquire the new equipment or replacement equipment needed.

16. These disastrous high interest rates have also come home to roost on the doorstep of the Federal Government, whose economic policies created this problem. When you consider the Government total revenue of $68 billion this year the Federal Government will make interest payments of nearly $17 billion. Financial experts declare that this is an excessively heavy debt burden. If a private firm had to pay out so large a fraction of its income on account of debt it would be grossly overloaded. The same, they say, is true of government. It has "no room for manoeuvre." The money left after making interest payments is barely enough to keep it going, leaving nothing for desirable new programs that could greatly benefit the country. When you add the fact that they also created the high unemployment and that out of the $68 billion total revenue at least $4 billion has to be paid out as Unemployment Insurance for the unemployed who account for 12.7 percent of the workforce. This $4 billion does not include the Federal Government's share of welfare payments for those unemployed who have exhausted their unemployment insurance. Thus, leaving very little money if any for the creation of jobs. This point is borne out when the new Minister of Finance announced he has allocated a paltry $1/2 billion for the creation of 60,000 temporary jobs.

17. As to the never-ending increase in fuel costs which have fueled inflation since 1973 when the international price was set arbitrarily, these increases affect each and every individual directly and indirectly. Directly when he uses oil and gas, individually and indirectly when all industries pass on the costs of fuel to the consumer in the price they charge for the goods they produce.

18. The literature in question which is the subject matter of this case is not wholly political propaganda, which does not relate to employees' problems, concerns and fears. This literature deals primarily with job security and how political decisions by the Federal Government has affected their job security and job security of a million, three hundred thousand Canadians and in particular more than 70,000 mine employees. In essence, the union was telling its members through the pamphlet what a tremendous difference a favourable government could make in their fortunes which are directly related to their job security.

19. I therefore conclude we have jurisdiction to inquire into this matter and it should be rescheduled for a hearing on all outstanding issues.