C.L.C. Local 354, Can Workers' Union v. American Can Canada Inc., 1983 CanLII 935

[1983] OLRB Rep. October 1609

0849-83-U C.L.C. Local 354, Can Workers' Union, Complainant, v. American Can Canada Inc., Respondent.

BEFORE: R. D. Howe, Vice-Chairman, and Board Members E. J. Brady and L. C. Collins.

APPEARANCES: Edward H. Wright, Richard Roberts, Stuart Mutton, W Moore and James Lang for the complainant; B. M. W Paulin, Q. C., W. Jason M. Hanson, Anne McAllister and J. L. Salmon for the respondent.

DECISION OF THE BOARD; October 21, 1983

1. This is a complaint under section 89 of the Labour Relations Act in which the complainant (also referred to in this decision as "Local 354") alleges that the respondent (also referred to in this decision as the "Company") has contravened sections 64 and 67(1) of the Act.

2. On August 17, 1983, after hearing and considering the submissions of the parties concerning the respondent's request that the Board defer hearing this complaint pending disposition of a policy grievance filed by the complainant, the Board made the following oral ruling:

Counsel for the respondent contends that the Board should defer any hearing of the merits of this matter, pending arbitration of a grievance which has been filed by Local 354 in respect of a letter to employees dated July 15, 1983, which forms part of the subject matter of this section 89 complaint, in which Local 354 alleges that the respondent has contravened sections 64 and 67(1) of the Act. Having considered the submissions of the parties, we are unanimously of the view that this is not an appropriate case in which to defer to arbitration. The principles which the Board applies in determining when it will defer to grievance arbitration proceedings are set forth in Valdi Inc. [1980] OLRB Rep. Aug. 1254. Having regard to those principles and to all of the circumstances of the present case, we are not prepared, in the exercise of our discretion under section 89 of the Act, to defer this matter to arbitration. This case raises significant issues concerning the extent to which an employer is entitled to communicate with his employees through letters and conversations in an attempt to enlist their aid in persuading their bargaining agent to meet with the employer during the term of a collective agreement to negotiate an extension agreement containing concessionary elements. Thus, we view the case as involving a situation in which sections 64 and 67(1) of the Act require elaboration. Thus, we are not satisfied that the present complaint is primarily contractual in nature and that the resolution through arbitration of the grievance in question, which covers only one aspect of the matters before us in the instant complaint, would be congruent with the resolution of this unfair labour practice. Indeed, it is questionable whether an arbitrator would have any jurisdiction under the terms of the collective agreement to deal with even the limited matter raised by the grievance alleging, as it does, only a violation of the recognition clause. In any event, we are of the view that principles con­cerning the extent to which an employer can communicate directly with his employees concerning such matters are best determined by this Board, charged as it is with continuing responsibility for the administration of the Labour Relations Act, rather than by arbitration under an individual collective agreement. Accordingly, the respondent's request that the Board defer to arbitration of grievance #83-13 is hereby denied.

4. The hearing was then recessed to afford the parties an opportunity to prepare an agreed statement of facts in an effort to expedite the hearing of the matter. At the hearing of the merits of this complaint on September 19, 1983, the parties filed with the Board the following agreed statement of facts:

5. Local 354 has represented the American Can employees at its Hamilton Plant for well over a quarter of a century. Other trade unions represent American Can employees at its other plants. Beginning in 1952, American Can had joint collective bargaining negotiations with Local 354 and with C.L.C. Local 353, Can Workers' Union (Montreal Plant) (hereinafter referred to as "Local 353"). In 1954, American Can negotiated jointly with Local 354 and with Local 353 as well as C.L.C. Local 535, Can Workers' Union (Simcoe, Ontario Plant) (hereinafter referred to as "Local 535"). Subsequent to 1974, Local 354 as well as Locals 353 and 535 had ratification votes on an all-employee basis rather than on a plant-by-plant basis.

6. American Can is the employer party to a Master Collective Agreement with Local 354 as one of union parties which is effective from and after March 15, 1981 until March 18, 1984. Local 353 and Local 535 are the other union parties.

7. American Can regularly distributes to all employees a company mag­azine called "Intercan" and a Newsletter to its Hamilton Plant employees.

8. In the first quarter of 1983, the four major can companies in the United States, namely, American Can (U.S.), Continental Can, National Can and Crown, Cork & Seal negotiated an industry-wide "Extension Agreement" of their Master Collective Agreements with the United Steelworkers of America. This "Extension Agreement" made it possible for those companies to guarantee deliveries and prices until March, 1986.

9. At the same time, American Can's major competitor in Canada, Continental Can, reached a similar extension agreement with the United Steelworkers of America which covered Continental Can's Canadian operations.

10. In light of the resulting pressure that was exerted upon it by its customers, the Employer decided to approach Locals 354, 353 and 535 and asked them to meet with it to explain and discuss the current industry situation and the possibility of reaching an agreement which would permit American Can to offer to its customers conditions similar to those offered by Continental Can, namely guaranteed supply and prices into March, 1986.

11. During a discussion with Mr. J. Lang, President of Local 354, on March 24, 1983, Mr. R. Lomas, Director - Labour Relations of American Can, told Mr. Lang that the Employer would be approaching Local 354 to discuss the U.S. industry settlement. Mr. Lang stated he might agree to meet but no negotiations would take place until 1984.

12. In a letter dated April 7, 1983 to Mr. E. Wright, the Canadian Labour Congress Staff Representative for both the Hamilton and Simcoe Plants, American Can requested such a meeting. Mr. J. Lang, the President of Local 354, received a carbon copy of the letter. [That letter, which was attached as Schedule "" to the agreed statement of facts, reads as follows:

Enclosed is a copy of the economic terms of settlement of an Extension Agreement recently reached between the major U.S. Can In­dustry manufacturers and the United Steelworkers of America. Essentially, this settlement extends the current Basic Agreement between the parties for a further two years, with only those modifications specified in the settlement letter.

As you are aware our major Canadian competitor is covered by the aforementioned Basic Agreement and therefore the Extension Agreement is applicable to all of its Canadian plant locations. Consequently, American Can's competitive position in the immediate future is seriously threatened, a situation which should be of grave concern to all employees.

It is imperative that a meeting be convened as soon as possible to discuss applying the economic provisions of the previously mentioned Extension Agreement to our Collective Agreement.

April 19, 20 or 21 are proposed as possible alternative dates for such meeting. Please contact us as soon as possible to confirm one of these dates.]

9. Local 353 and Local 535 agreed to attend the April 21 meeting, however, Local 354 did not attend the meeting. At that meeting, Mr. Wright did state that Local 354 would not meet until 1984. Mr. Lang stated on May 2, 1983 to Mr. Don Stewart, the Hamilton Plant Manager, that Local 354 would not meet with nor have any further discussion or contact with any officer of American Can and that if a meeting was proposed, he would not come. Mr. Lang added that there had already been a vote and that it had been agreed that there would be no concession negotia­tions with American Can. Mr. Lang restated this position to Mr. Stewart during subsequent conversations. Nevertheless, American Can copied Mr. Lang on all correspondence relative to the meetings with Local 353 and Local 535. [That correspondence, which was attached as Schedule "B" to the agreed statement, has been omitted.]

10. Agreements with Local 353 (Montreal) were reached during the first week of June and with Local 535 (Simcoe) on or about May 24, 1983, subject to ratification by the membership and approval by the Canadian Labour Congress. These ratifications and approvals were subsequently given. [The letters of approval, attached as Schedule "C" to the agreed statement, have been omitted.]

11. American Can continued its attempt to meet with Local 354 to discuss the situation. On May 30, 1983, Mr. Barry Pocock, American Can's Chief Executive Officer, attended at the Hamilton Plant. While Mr. Lang was unexpectedly absent on Jury Duty, Mr. Pocock did have a brief discussion with Mr. Earl Sharkey, Chief Steward of Local 354. Mr. Pocock advised Mr. Sharkey that the Employer wanted to discuss the situation with Local 354. Mr. Sharkey advised Mr. Pocock that he understood what he was saying but that the membership had voted and agreed there would be no concessions; however, he would take the message to Mr. Lang and would respond to American Can's request. The response was that Local 354 would not meet.

12. The employees at the Hamilton Plant were aware that agreements had been made with Locals 353 and 535.

13. In an information letter dated July 5, 1983 above the signature of Barry Pocock, Chief Executive Officer of American Can, the Employer sought to explain and clarify its position to employees at the Hamilton plant. A summary of the agreement with Locals 353 and 535 was attached to the letter because of the historic relationship between American Can and those 3 locals. [That letter, which was attached to Schedule "D", reads as follows:

Dear Fellow Employee:

So much has been happening in our Industry lately, particularly as it affects our Company, that many of you have been asking your respective supervisors, "What's going on?"

I am writing to you personally simply to inform you and to convey my deep concern about the severe commercial problems facing our Company. Since several factors have combined to create a climate that jeopardizes the ability of our Company to compete in the marketplace, I believe everyone should be aware of the impact on Hamilton Plant and the measures that must be taken to counteract these factors.

You are all aware that our business dropped off sharply in 1982 due to the weak economy, new packaging and U. S. imports. These trends continue unabated through 1983 and have resulted in substantially reduced operations at all our Plants.

We are now faced with an additional competitive threat which, if unchallenged, will ant on Wednesday, July 13 and requested a meeting with him, the Local 354 Executive, and a represented its current labour contract through 1986. C.C.C. is already taking advantage of this Agreement by offering our customers guaranteed supply for the next three years at controlled prices. Many of our customers are extremely interested in this approach and unless we can match that offer, we will certainly lose some major blocks of business.

The only way our Company can combat C.C.C.'s guarantees is to also secure extension agreements. The Unions representing our Van­couver, Kelowna, Simcoe and Montreal employees have already signed such extension agreements, having recognized the problems in our Industry. (Highlights of the Montreal/Simcoe extension agreements are attached.) To date, however, your elected representatives in Hamilton have refused to even meet with us to discuss this most urgent matter. It is critical to the future of our Company that an extension agreement be negotiated now. The problems we are facing will not simply go away - they must be met and dealt with for the future well-being of us all. I urge you to support this view with your elected representative.

The attachment referred to in that letter reads:

ATTACHMENT

The Montreal/Simcoe extension agreements provide that:

• the present Collective Labour Agreement remains unchanged until its normal expiry on March 18, 1984 — no take-aways

• the Agreement will be extended for 24 months, to March 16, 1986

• no changes in general wages or benefits will occur

• C.O.L.A. will continue, although for the Extension period C.O.L.A. will be "folded-in" to wage rates annually, rather than quarterly

• anyone who retires during the Extension term will receive any pen­sion increases negotiated in the 1986 negotiations on the effective dates of such increases

• should the Company subsequently negotiate a more favourable Can Industry Agreement with the U.S.W.A. prior to the Extension expiring, the changes negotiated would be passed on to Locals 353 and 535 of the C.W.F.U.

The above, if applied to Hamilton, would represent a superior agree­ment for Hamilton employees than the Continental Extension.]

14. In a letter dated July 8, 1983 Mr. Pocock advised Mr. Lang that he would be at the Hamilton Plant on Wednesday, July 13 and requested a meeting with him, the Local 354 Executive, and a representative of the Canadian Labour Congress. [That letter, attached as Schedule "E" to the agreed statement, reads:

On Wednesday, July 13, 1983, I will be visiting Hamilton plant and would like to take the opportunity at that time, to meet with your Local Union Executive, a representative of the Canadian Labour Congress, and yourself. The purpose of the meeting will be to dis­cuss the necessity of implementing an extension to the current Labour Agreement.

You are well aware of the importance of this matter and your co­operation in attending this meeting will be appreciated.]

15. In a letter dated July 12, 1983, Mr. Lang advised Mr. Pocock that his request for a meeting had been rejected. Mr. Lang restated that in rejecting the request "we are only following the democratic wishes of our membership." [That letter, attached as Schedule "F" to the agreed statement, has been omitted.]

16. On July 13, 1983, Mr. Pocock attended at the Hamilton Plant, and he was accompanied by Mr. J. R. Carlisle and by Mr. J. A. Tucker. Mr. Carlisle is the Vice-President of the Employer, and Mr. Tucker is the Employer's Director of Manufacturing. Mr. Lang was not at the Plant that day because he was attending a funeral. Mr. Pocock and Messrs. Carlisle and Tucker briefly toured the Plant, and they spoke on an individual basis to a number of employees on the day shift in some of the departments at the Plant, that is maintenance, machine shop and coating. These management persons, during the course of their individual tours of those departments, talked to a number of employees, including some members of the Local 354 Executive. The said management persons asked some employees if they had received a copy of Mr. Pocock's letter of July 5, and they attempted to respond to questions which were put to them. Plant production was not stopped and the said management persons spoke to employees on a random basis. The said management persons did not speak to any employees from the other two shifts at the Hamilton Plant.

17. In a letter to Mr. Lang dated July 15, 1983 Mr. Pocock expressed disappointment at Mr. Lang's refusal to meet. Mr. Pocock restated his desire to meet with Local 354 in order to present to it American Can's concerns. In that letter he also advised Mr. Lang that he had toured the Plant and spoken to a number of employees on July 13. This letter was read to Mr. Lang over the telephone on July 18 by Mr. D. Stewart. Mr. Lang again refused to meet with Mr. Pocock expressed disappointment at Mr. Lang's refusal to meet. Mr. Pocock restated his desire to meet Lang a confirming letter dated July 19. Subsequently, Mr. Lang acknowledged receipt of the July 19 letter. [Mr. Pocock's letter of July 15, 1983, attached as Schedule "G" to the agreed statement, reads as follows:

Thank you for your response, dated July 12, to my July 8 letter.

I was, of course, extremely disappointed at your refusal to meet to discuss this most urgent matter.

While in Hamilton on July 13, I did take the opportunity to tour the plant and speak to a number of employees. The employees asked a number of interesting questions which, although intelligent and thought provoking, indicated that they were not current on the details of the recent settlements in our Industry.

There is obviously misunderstanding which can be resolved by com­munication. A meeting such as I proposed may have accomplished this. In any event, it is imperative that our employees, your members, should be fully aware of the business and other considerations which could significantly impact job security.

There are obviously avenues by which you could overcome your present procedural difficulties and, in the interests of Hamilton plant, I urge you to look at such procedures and also to reconsider your position.]

18. In a letter to all Hamilton Plant employees dated July 15, 1983, Mr. Pocock expressed his pleasure at meeting a number of them and stated the he had wished to talk to Mr. Lang and the Local 354 Executive. Mr. Pocock also stated that Mr. Lang had rejected the meeting on the basis of membership wishes. [That letter, attached as Schedule "H" to the agreed statement, reads as follows:

It was a pleasure meeting and speaking with some of you last Wednesday. I was heartened that so many of you share my concern over the current state of our business. My primary purpose in visiting the plant was to meet with your Local Union President and Executive to convey that concern to them and to explain the necessity of negotiating an extension agreement now.

The response I received from your Local Union President to my request for a meeting was another refusal to discuss this critical issue. The reason given for the refusal was that the democratic wishes of the membership were being followed. If it is now your wish that meetings do take place, you are encouraged to voice your opinion to your Executive immediately. Market forces will not wait until your next regularly scheduled membership meeting in September.

I hope that we can work together to bring this matter to a successful conclusion this month.]

19. No further communications from American Can to the employees in the Local 354 bargaining unit have been made since July 15, 1983, ex­cept for the Plant Manager's Newsletter for the month of August, 1983.

20. On July 20, 1983, a letter from the Local 354 Executive to its mem­bership was distributed at the Hamilton Plant. [That letter, attached as Schedule "I" to the agreement statement, reads:

Members of Local 354:

As usual during the summer months your union does not hold the regular monthly meetings, but if required, meetings are held by your Executive. This was so just recently, when we met to discuss the latest moves by American Can to pressure us into talking with them about their so called 'need' for a contract extension; an extension such as Montreal and Simco [sic] have already been 'persuaded' into.

At our meeting we agreed that if (as Pocock's letter states) many of you have been asking "What is going on?", it's up to us, your 'Elected Representatives', to answer that question and not the Chief Executive Officer of our employer, whose corporate interests obviously come before the interest of any of us employees.

Because there is no union meeting this month, we will attempt to answer that question with this letter.

Most of you, we are sure, do not have to ask "What is going on?", but for some who might be asking questions such as — "Why is the union not meeting with the company at this time?" — we would like to remind you that it was some months ago, with a great deal of foresight, a motion was put forward at that month's union meeting saying that no-one from this local would enter into any discussions with American Can regarding concessions.

That motion was passed unanimously and. is still being upheld and supported by your union today.

That is why your President, Negotiating Committee, or any other union official cannot and will not meet with the company to discuss these issues until we are in a position to bargain, and that will be at the expiration of this present agreement.

Let us remind you that "no concessions" was and still is the position taken by the Canadian Labour Congress and this stand by Local 354 is consistant [sic] with ", — that statement is not even a questionable one because in our current contract we "roll-in" es must meet on relatively equal terms. To meet during a current agreement would put any union at a great disadvantage, and we would not wish to place Local 354 in that position.

Responding to Pocock's recent letters, we think each one of us should seriously question the validity of some of the statements made by him. Statements such as "The only way our company can combat Continental Can Co's guaranteees is to also secure extension agree­ments". A Corporate Giant requires a few hundred Hamilton workers to throw away 2 years because "It is critical to the future of our company."

"No take-aways", — that statement is not even a questionable one because in our current contract we "roll-in" our C.O.L.A. every 3 months. If we were to accept their extension it would only be "rolle­in" every 12 months (March 1985 and March 1986).

If by January of 1985 the C.O.L.A. for the previous three quarters stood at $1.00 per hour, a three week vacation would cost you $120.00 worse still, a January — February — March E.E.P. would cost $440.00, — is that not a "take-away"?

Concessions need not be "take-aways" though, concessions means to concede or to give, and contract time is one time when it is definitely "not better to give than receive".

Two years with no contract improvements is two years too long. What will our O.H.I.P. cost in 1986? If your sick benefit is not sufficient now, what will it be like in 1986? These, and many other issues, can only be dealt with in 1984 when (the bargaining can be collective and not one sided)[sic]. The company's position has already been made clear when they said that "There can be no move­ment in any other area".

So the next time you are told it would be beneficial for your union to sit down and meet with the company, ask yourself (10 WHOSE BENEFIT?).

Your union representatives are working for your benefit and with your continuing support will secure an agreement with this company at the right time, and that time is not now.

Yours Fraternally,

The Executive — Local 354]

21. The Employer has consistently recognized Local 354's right to represent the bargaining unit employees as their exclusive bargaining agent.

22. In addition to receiving that agreed statement of facts, the Board also heard the tes­timony of Donald Stewart (the aforementioned Hamilton Plant Manager) and Douglas Crosbie, the Superintendent of Processing at the Hamilton Plant. The complainant was also afforded an opportunity to call evidence (in chief averse factors described above have resulted in layoffs and substantially reduced operations at that plant and at oer to the supervisory staff at the Hamilton plant. That memo pertained to the first day of hearing before the Board, certain settlement proposals by Local 354, and various other matters which are not relevant to the adjudication of the present complaint.

23. The respondent employs approximately 500 bargaining unit employees at the Hamilton plant where it manufactures components of cans. However, "near cutthroat" competition and the other adverse factors described above have resulted in layoffs and substantially reduced operations at that plant and at other plants operated by the respondent. It is clear from the evidence of Mr. Stewart that the events outlined in paragraphs 4, 5, and 10 of the agreed statement of facts were "fairly widely known" by supervisors and bargaining unit employees at the Hamilton plant. When employees became aware that "extension agreements" had been signed and approved by locals 353 and 535, some of them began to ask their supervisors about those matters and about "what was going on with Local 354". Those inquiries, coupled no doubt with his frustration concerning Local 354's refusal to meet with management to dis­cuss an extension agreement, prompted Mr. Pocock to write to employees on July 5, 1983 (as described in paragraph 13 of the agreed statement of facts).

24. As indicated in paragraph 16 of the agreed statement of facts, Mr. Pocock and various other members of management toured the Hamilton plant on July 13, 1983 and spoke with various employees on a random basis. It was Mr. Stewart's uncontradicted evidence that it was not unusual for members of management to walk through the plant and talk to employees from time to time. On the day in question Mr. Pocock "paired off" with Mr. Crosbie and spoke briefly with approximately twenty bargaining unit employees (including Local 354's Chief Steward and a member of its Executive) individually or in small groups. Normal pro­duction continued during those brief and informal discussions. Mr. Pocock asked the employees with whom he spoke if they had received his letter (of July 5, 1983) and what their thoughts were on his letter. In the absence of any evidence to the contrary, we accept Mr. Crosbie's candid and credible testimony which indicates that Mr. Pocock was merely passing on information and responding to employees' questions, and was not intimidating, coercing, or unduly influencing employees, nor making any threats or promises to them. The same is true of Mr. Carlisle, who walked through the machine shop and coating area with Mr. Stewart and spoke with various employees, including W. Moore and S. Mutton, members of the Executive of Local 354 who were present at the hearing of this matter but were not called to testify. Thus, Mr. Stewart's candid and credible testimony, which was not subjected to any cross-examination by the complainant, is also entirely uncontradicted. He told the Board that some employees asked questions about matters such as hay "asked some employees if they had received a copy of Mr. Pocock's letter of July 5" and "attempted to respond to the July 5 letter or its contents. Mr. Tucker also toured the plant that day, accompanied by Ron Eyford, the Supervisor of Quality Engineering at the Hamilton plant. Although no direct evidence was adduced before the Board concerning what Messrs. Tucker and Eyford said to the employees with whom they spoke, as indicated in paragraph 16 of the agreed statement of facts the parties are in agreement that members of management who toured the plant that day "asked some employees if they had received a copy of Mr. Pocock's letter of July 5" and attempted to respond to questions that were put to them". Having regard to that agreement, and in the absence of any evidence to the contrary, it is reasonable to infer in the circumstances of this case that Messrs. Tucker's and Eyford's communications with employees were similar to those described above in relation to Messrs. Pocock, Crosbie, Carlisle and Stewart.

25. The evidence also establishes that by means of letters, notices, and newsletters, management has communicated directly with bargaining unit employees a number of times in the past with respect to various matters including layoffs, reductions in business activities, the need to maintain the Company's competitive position, the highlights of an economic offer made by the Company to Local 354 during negotiations for a collective agreement, and the effect of technological and other changes on the Company's competitive position. Local 354 has not grieved, filed a complaint under the Labour Relations Act, or otherwise challenged the pro­priety of any of those communications (although it did post a notice advising employees not to answer any questions in an employee opinion survey which management planned to have mailed directly to employees by an independent company with expertise in that area).

26. As indicated above, the complainant alleges that the respondent has contravened sections 64 and 67(1) of the Act. Section 67(1) provides:

No employer, employers' organization or person acting on behalf of an employer or an employers' organization shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any person or another trade union or a council of trade unions on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

As noted by the Board in A. N. Shaw Restoration Ltd., [1978] OLRB Rep. May 393, at paragraph 17, the scheme of the Labour Relations Act contemplates that the acquisition of bargaining rights by a union carries with it an exclusive license to bargain on behalf of the employees in its bargaining unit. That exclusivity of the union's bargaining rights is expressly protected by section 67(1) which prohibits employers from bargaining directly with employees represented by a union. It is apparent from the facts set forth above that for over twenty-five years the employer has recognized the complainant as the exclusive bargaining agent for the (bargaining unit) employees at its Hamilton plant. It is also apparent that, far fro organization shall participate in or interfere with the formation, selection or administration of a twith employees, has been attempting to arrange a meeting with the Executive of Local 354, as the employees' duly recognized bargaining agent, to discuss an extension to the collective agreement currently in force. Thus, the substance of those direct communications clearly indicates that at all material times it was the intention of the respondent to continue to recognize the complainant as the exclusive bargaining agent for its Hamilton plant employees. Accordingly, we are satisfied that neither the respondent, nor any person (or organization) acting on behalf of the respondent, has bargained with (or entered into a collective agreement with) any person or trade union other than the complainant in respect of the Hamilton plant bargaining unit. Accordingly, we find that there is no merit in the complainant's allegation that the respondent has contravened section 67(1) of the Act.

10. The complainant also relies upon section 64 of the Act, which provides:

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.

That provision proscribes (among other things) employer interference with the representation of employees by a trade union, but expressly preserves an employer's "freedom to express his views", subject to the important proviso that "he does not use coercion, intimidation, threats, promises or undue influence." The Board has cautioned employers, through its jurisprudence, that they must be circumspect when communicating directly with employees on collective bargaining matters, especially when those communications occur during the course of negotiations. See, for example, A.N. Shaw Restoration Ltd., supra, at paragraph 18, in which the Board wrote:

The existence of this well-established principle of exclusivity of bargaining rights means that employers must be circumspect when communicating with employees represented by a bargaining agent, especially when these communications occur during the course of negotiations. The need for circumspection on the part of employers, however, does not mean that all communications between employer and employees are prohibited. Section 56 [now section 64] of the Act, prohibiting employer interference with the formation, selection or administration of a trade union or the representation of employees by a trade union, expressly provides that this very general prohibition does not "deprive an employer or his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence". Where communications occur between employer and employees during negotiations, the Board must draw a line dividing legitimate freedom of expression frprotected area, such communications can be characterized as a violation of section 59 [now section 6The line is not an easy one to find, and can only be discovered by asking whether such communications in reality represent an attempt to bargain directly with the employees. If employer communications can be characterized in this manner, they must be regarded as unduly influ­encing employees and, therefore, falling outside the protection provided to freedom of expression in section 56. Once outside this protected area, such communications can be characterized as a violation of section 59 [now section 671 of the Act, and also a violation of the duty to bargain in good faith if they serve to undermine the viability of the bargaining agent.

See also, generally, Toronto General Hospital, [1983] OLRB Rep. Apr. 607; Canada Cement Lafarge Ltd., [1982] OLRB Rep. Nov. 1583; Globe Spring & Cushion Co. Ltd.., [1982] OLRB Rep. Sept. 1303; Radio Shack, [1979] OLRB Rep. Dec. 1220; The Citizen, [1979] OLRB Rep. Mar. 177; and Greb Industries Limited, [19781 OLRB Rep. Oct. 89.

11. Having carefully reviewed Mr. Pocock's letters of July 5 and July 15, 1983, in the light of the pertinent jurisprudence, we have concluded that, in the circumstances of this case, the respondent did not contravene section 64 by sending them to bargaining unit employees. We do not view the contents of those letters as constituting coercion, intimidation, threats, promises or undue influence. Moreover, the communications are similar in substance to various other written communications which the respondent has posted, mailed, or delivered to bargaining unit employees over the years without any objection from the complainant. For the foregoing reasons, we are satisfied that those letters fall within the ambit of the freedom of expression guaranteed by section 64 of the Act, and that the respondent did not contravene the Act by sending them to bargaining unit employees in the circumstances of this case.

12. The fact that senior members of management, including the respondent's Chief Ex­ecutive Officer, attended at the plant on July 13, 1983 and spoke with a number of bargaining unit employees has given us some concern. As indicated above, although an employer is free to express his views, he cannot use coercion, intimidation, threats, promises, or undue influ­ence. With respect to the latter term, the Board wrote as follows in K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Jan. 60, at paragraph 35:

In Words and Phrases Legally Defined (London, 1970) undue influence is defined in part as:

"the unconscientious use by one person of power possessed by him over another to induce the other to enter into a contract."

In the context of The Labour Relations Pocock and the other members of management who spoke with employees that day. This is not a case involving a uniloyees in order to induce them to forego their rights in relation to a union. An employer exerts undue influence on its employ­ees, and thereby breaches the Act, when it takes unfair advantage of its position and authority in an attempt to sway the will of the employees. The line between legitimate employer expression and undue influence is not easy to draw in the abstract, and can only be assessed on a case by case basis.

Having carefully considered the evidence and the facts set forth in the parties' agreed statement, we have concluded that, in the circumstances of this case, the respondent did not contravene section 64 through the actions of Mr. Pocock and the other members of management who spoke with employees that day. This is not a case involving a union organizational campaign or a newly established collective bargaining relationship in which employees are likely to be particularly sensitive to any utterances by management. The conversations in question were relatively informal and did not involve mass "captive audience" meetings. Moreover, as indicated above, it was not unusual for members of management to tour the plant and speak with employees. Most importantly, the content of the communications was completely innocuous, limited as it was to inquiries as to whether employees had received Mr. Pocock's letter of July 5 and to unobjectionable responses to employee questions. Thus, while this decision is not to be construed as in any way indicating that direct personal communication by senior members of management with bargaining unit employees will not be subjected to close scrutiny by this Board, or that further such communications concerning the complainant's refusal to meet with the respondent with respect to the extension agreement desired by the Company would not cross the boundary between freedom of expression and undue influence, in the circumstances of the present case we are satisfied that the respondent did not contravene section 64 or any other provision of the Act in that regard. Although there has been some equivocation in the Board's jurisprudence concerning whether or not anti-union motivation is an essential element of section 64, in International Wallcoverings, [19831 OLRB Rep. Aug. 1316, the Board, after thoroughly reviewing the pertinent jurisprudence and policy considerations, indicated that in appropriate cases where there is a clear imbalance of interests in favour of protected activity, the Board will be prepared to adopt a "non-motive approach to section 64", such as in instances of clear mistake or discipline clearly out of all proportion to the misconduct in issue. The present case involves neither anti-union motive nor a clear imbalance of interests in favour of protected activity. However, even if it were to be assumed that this is an appropriate case in which to adopt a non-motive approach in respect of section 64, the complainant's case would not succeed since it has not established that the respondent's impugned actions have in any way interfered with its administration or representation of bargaining unit employees, or that it has in any other way (contemplated by section 64) been adversely affected. resent case we are satisfied that the respondent did not contravene section 64 or any other provision of the Act eminently appropriate for discussion between such parties.

13. For the foregoing reasons, this complal meeting with the respondent. Moreover, even if the communications had resulted in such meeting, it would be difficult to characterize that result as falling within the ambit of section 64 as it would merely represent a meeting of the Company with its employees' bargaining agent for the purpose of discussing the possible extension of their collective agreement in the light of the Company's current economic and competitive position, a matter which is eminently appropriate for discussion between such parties.

14. For the foregoing reasons, this complaint is dismissed.