Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers v. Seven-Up/Pure Spring Ottawa, A Division of Seven-Up Canada Inc., 1984 CanLII 959

[1984] OLRB Rep. January 87

1146-83-R; 1682-83-U Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Applicant, v. Seven-Up/Pure Spring Ottawa, A Division of Seven-Up Canada Inc., Respondent, v. Seven-Up/Pure Spring Division Employees As­sociation, Intervener

BEFORE: Owen V. Gray, Vice-Chairman and Board Members

J. Wilson and B. L. Armstrong.

APPEARANCES: E. G. Posen and Bob Hill for the applicant/complainant; C. E. Humphrey,

M. Mirsky and R. French for the respondent; H. Busch for the intervener.

DECISION OF THE BOARD; January 13, 1984

1. File No. 1146-83-R involves an application for certification in which a pre-hearing representation vote was requested by the applicant and directed by the Board to be taken of the employees of the respondent in the following bargaining unit:

All employees of the respondent at the City of Ottawa, save and except foremen and supervisors, persons above the rank of foreman and super­visor, and office and clerical staff.

That vote was taken September 29, 1983. Of the 160 employees on the voter's list agreed to by the parties, 150 cast ballots. 73 of these were marked in favour of the applicant and 77 against. There was also one ballot cast by a person not on the list. It was segregated and not counted.

2. File No. 1682-83-U is a complaint by the applicant that the respondent has violated the Act by mailing to its employees a letter dated September 23, 1983. This, together with other acts and omissions of the respondent, forms the basis of a request now made in the certification application that we certify the applicant without a vote pursuant to section 8 of the Act or, alternatively, set aside the results of the vote of September 29, 1983 and order a second representation vote.

3. By agreement of the parties, these two matters were ~consolidated at hearing, and the name Seven-Up/Pure Spring Ottawa" appearing in the style of cause was amended to read: "Seven-Up/Pure Spring Ottawa, A Division of Seven-Up Canada Inc.".

I

4. Although the inferences to be drawn from them are very much in dispute, the facts relevant to the issues before us are not. These facts were elucidated for us in the statements of counsel at hearing. There was also a contested issue whether further evidence should be heard by the Board before entertaining argument. Before dealing with our ruling on that issue and the reasons for it, we will set out the facts as they were related to us by counsel.

5. The applicant's organizing drive commenced in the summer of 1983, and culmi­nated in the filing on August 26, 1983 of the certification application now before us. During the period August 12 to September 12, 1983, the applicant union filed 13 unfair labour prac­tice complaints against the respondent. In accordance with its usual practice, the Board ap­pointed a labour relations officer to inquire into the matters complained of and endeavour to effect a settlement. The same officer was appointed to confer with the parties with respect to arrangements for the prehearing vote requested in the certification application. The officer's endeavours culminated in a meeting held September 12, 1983 in Ottawa. The meeting was attended by representatives of the respondent company, the applicant union and the intervener Seven-Up/Pure Spring Employees' Association ("the Association"). A settlement was ef­fected, and reduced to writing, in the following terms:

THIS AGREEMENT entered into this 12th day of September, 1983.

BETWEEN:

CANADIAN UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS

hereinafter called "the Union"

• and -

SEVEN-UP/PURE SPRING OTTAWA

hereinafter called "the Company"

• and -

SEVEN-UP/PURE SPRING EMPLOYEES' ASSOCIATION

hereinafter called "the Association"

RE: Complaints Filed Under Section 89 of the Ontario Labour Relations Act Board File Numbers 1024-83-U to 1034-83-U, 1188-83-U, 1189-83-U, 1249-83-U, 1275-83-U

The parties hereto agree to settle these matters and they are settled as follows:

1. The Company acknowledges that it has violated the Ontario Labour Relations Act in relation to the above-captioned complaints filed un­der Section 89.

2. The Company and the Union agree to the Labour Relations Board directing the posting of a "Notice to Employees" with the text as attached hereto. The Company agrees to mail copies of the notice to all employees in the bargaining unit as agreed to by the parties. The notice to be mailed to employees the day after receipt of the notice by the Company.

3. The union hereby withdraws and abandons and agrees to not further prosecute the above-captioned complaints filed under Section 89 of the Labour Relations Act.

4. The Union Agrees that it will not rely on or refer to the above-cap­tioned complaints filed under Section 89 of the Labour Relations Act or any of the incidents referred to in the complaints, or any other act or incident which has occurred to the date of this Agreement in mak­ing any application with regard to the Company under Section 8 of the Ontario Labour Relations Act.

5. The parties hereto agree that the existence of the Association and the Association Agreement with the Company does not affect the right of the Union to make its application for certification Board File No.

1146-83-R.

6. The parties hereto agree that this Agreement is a matter between the parties and they will not release this Agreement or its contents to anyone who is not a party to the Agreement other than the Ontario Labour Relations Board.

CANADIAN UNION OF UNITED BREWERY, FLOUR, CER­EAL, SOFT DRINK AND DISTILLERY WORKERS

"Paul Poirier"

SEVEN-UP/PURE SPRING OTTAWA

[illegible signature]

SEVEN-UP/PURE SPRING

EMPLOYEES' ASSOCIATION

[illegible signature]

The attached "Notice to Employees" referred to in paragraph 2 of this Agreement reads as follows:

THE LABOUR RELATIONS ACT

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

We have posted this Notice in compliance with an Order of the Ontario Labour Relations Board issued after the Company agreed that it violated the Labour Relations Act by interfering with the right of employees to join a trade union.

The Act gives all employees these rights;

To organize themselves;

To form, join and participate in the lawful activities of a trade union;

To act together for collective bargaining;

To refuse to do any and all of these things.

We assure all of our employees that we will not do anything that in­terferes with these rights.

SEVEN-UP/PURE SPRING OTTAWA

This is an official notice of the Board and must not be removed or de­faced.

This notice must remain posted for 60 consecutive working days. DATED this day of , 1983.

It should be noted that this Agreement was executed by a representative of the Association, which had been named as an interested party in the certification application and had filed an intervention in that application. The status of the Association for the purposes of the certi­fication application was disposed of by paragraph 5 of the Agreement. Although the Asso­ciation intervened again in the instant section 89 complaint, at the hearing its representative advised the Board that the Association would not be taking any part in the proceedings.

6. The circumstances of execution of the September 12th Agreement are important to an assessment of subsequent events. Settlement of the outstanding complaints and arrange­ments for the pre-hearing representation vote were both under discussion September 12th. One of the items discussed was the date on which the vote would be held. When a consent order and mailing were discussed as a means of settling the complaints, the applicant was naturally concerned to know when the proposed mailing would occur in relation to the day of the vote.

By paragraph 2 of the proposed Agreement, the release by this Board of an agreed upon di­rection was to trigger the mailing by the employer. The applicant wanted to know how long it would take the Board to release the contemplated decision and bilingual notices. The labour relations officer is said to have told the parties, after speaking to the Registrar by telephone, that the decision and Notices could be released three days after the execution of the agreement of the parties. On the basis of that information~ the applicant agreed both to the settlement contained in the agreement of September 12th and to a pre-hearing vote date of September 29, 1983.

7. The contemplated Board decision was issued dated Thursday, September 15, 1983. It appears the decision was not mailed until the following Thesday, September 20, 1983. On that day copies of the decision and attached Appendix (in English and French) were mailed to, inter alia, the respondent's Toronto counsel and the Association. However, copies were nof addressed or mailed directly to the respondent in Ottawa. Counsel for the respondent filed with us his copy of the decision and covering letter. Although that covering letter had been rubber stamped "Sept. 22/83", Mr. Humphrey was unable to advise us whether that was the day on which it and the enclosures were received at his office.

8. On September 23, 1983, Mervin Mirsky, the President of the respondent, sent the following letter to each of the employees in the bargaining unit:

September 23, 1983.

Dear [the first name of employee inserted in handwriting]

In August of this year we wrote to you about the attempt being made by a Union to act as your representative instead of your Seven-Up/Pure Spring Employees' Association. To correct the many inaccurate and un­true statements and claims that have been made, I would like to recon­firm to you the vitally important reasons for your staying with the Association.

1. There will be no Union dues or assessments, all of which would be deducted from your pay. Your Association charges no dues whatever.

2. In all negotiations during the year and prior to yearly wage negoti­ations, you will be represented by your fellow employees. With a Union, outside persons move in to intervene.

3. Your Association will be able to represent you regarding any problem

— as it has in the past — of a personal or family nature.

Unlike other companies in our industry, we have always provided our regular employees with full employment — 5 days a week — 52 weeks a year.

Under the law you have a right to join any Union or Association of your choice — and we will not interfere with your right. However, bear­ing in mind the advantage of staying with your Association, I would ask that you vote a simple "NO" as indicated below:

The balance of the first page is taken up with a full size facsimile of a representation vote ballot, on which an "X" has been placed opposite the word "NO". The second page of the letter continues:

Over the past years your Association has served you very well — and its services will improve in the future. You don't need a Union.

In order to keep your Association, you must get out and vote. The vote will be here at the plant and I repeat will be by secret ballot so you can decide what you want without fear or favour from anyone.

Sincerely,

Mervin Mirsky.

9. We were told that the Association has been in existence for some time, and has entered into "agreements" with respect to terms and conditions of employment on a yearly basis since at least 1979. The respondent's Reply and the Association's Intervention in the certification application make reference to an existing agreement between them covering the period to December 31, 1983. If that agreement were a collective agreement, its existence would bar the applicant's certification application. The parties have agreed that this agreement is not a bar. No attempt was made to establish that the Association is a trade union.

10. Mr. Humphrey advised us that on Tuesday, September27th, two days before the vote, he first became aware his client had not received the Board's order and, consequently, had not mailed the notices contemplated by the September 12th Agreement. He then had cer­tain discussions with the labour relations officer whose efforts had resulted in the September 12th Agreement. That officer spoke, in turn, to counsel for the applicant, Mr. Posen, during a break in another Board proceeding in which Mr. Posen was involved that day. The officer then spoke again to Mr. Humphrey, and thereafter to members of management of the re­spondent at Ottawa. They, in turn, obtained from the Association its copy of the Board's or­der, executed the Appendices attached to it, and handed out copies to its employees at their place of work the following day, Wednesday, September28, 1983, the day before the vote. Some of the employees received notices in the morning when they reported to work, others received their copies at the end of the day when they returned to the plant after completing their deliveries.

11. This brings us to the one point at which the parties differ over the facts. Mr. Hum­phrey says that when he became aware on September 27th that no notices had been distributed in the manner contemplated by the September 12th Agreement, he recognized that such no­tices could not then be distributed prior to the date set for the representation vote unless the notices were handed to employees at their place of work. He says he discussed this method of distribution with the labour relations officer, who undertook to speak about it to Mr. Posen. Mr. Humphrey says that in his second conversation with the labour relations officer, he was told Mr. Posen had agreed that the notices could be handed to employees at their place of work. He then left it to the labour relations officer to speak directly with his clients, to arrange to get the necessary materials into their hands. Mr. Humphrey says he took these commu­nications to establish an amendment to the September 12th Agreement, substituting distribution by handout at work on September 28th as the agreed method of distribution of the Notices, in lieu of the mailing referred to in the Agreement. Mr. Humphrey acknowledges that this point was not discussed explicitly, but says he felt it was implicit in his communications with the officer. He says he might have agreed to a postponement of the vote if he had thought the union would complain about the failure to mail the notices despite completion of the pro­posed handout. Mr. Posen told us he did not learn that the respondent had neither received the order nor mailed notices until he was approached by the labour relations officer on Sep­tember 27th. He says his reaction to the officer was that the vote could not be postponed at that late date, and that he could see no objection to the employer handing out copies of the notice. He did not, however, consider that by so saying he had agreed to an amendment to the September 12th Agreement altering the method of distribution provided for in that Agree­ment. While expressing the utmost respect for Mr. Posen, Mr. Humphrey said he wished to call the labour relations officer as a witness to establish, he hoped, that the discussions in which the labour relations officer had engaged had resulted in an amendment of the September 12th agreement. He acknowledged that he could not compel attendance of the labour relations officer without the consent of the Board. He requested that the Board grant its consent. After hearing the submissions of counsel, we ruled orally that such consent would not be granted, for reasons to be delivered later in writing, if requested. Mr. Humphrey requested reasons.

II

12. Section 109 of the Labour Relations Act provides:

13. Except with the consent of the Board, no member of the Board, nor its registrar, nor any of its other officers, nor any of its clerks or servants shall be required to give testimony in any civil suit or in any proceeding before the Board or in any proceeding before any other tribunal respect­ing information obtained in the discharge of their duties or while acting within the scope of their employment under this Act.

Subsection (6) of section 111 of the Act provides:

111 .-(6) No information or material furnished to or received by a labour relations officer under this Act and no report of a labour relations officer shall be disclosed except to the Board or as authorized by the Board, and no member of the Board and no labour relations officer is a competent or compellable witness in proceedings before a court, the Board or other tribunal respecting any such information, material or report.

13. Settlement is the preferred method of dispute resolution in labour relations matters, as it is in resolution of disputes of any kind. Settlement saves the time and money of the parties and of the public institutions created to adjudicate disputes and enforce the results of adjudication. The results of settlement will both be and seem more responsive to the parties' real differences than will an adjudicated result. The prospects for settlement are dim unless there can be full and frank communication between the parties, in which they can discuss the respective strengths and weaknesses of their positions without later having those discussions turned against them if settlement efforts fail. For that reason, the law has always recognized a privilege attaching to such communications, and the courts have refused to entertain oth­erwise relevant evidence of statements made by the parties to litigation, when those statements were made in the course of discussions entered into bona fide with the object of a possible settlement.

14. One of the primary function of labour relations officers is to endeavour to effect the settlement of disputes submitted to the Board for resolution. This role is mandated by the Act in the case of unfair labour practice complaints (see section 89(2)) and construction in­dustry grievance referrals (see section 124(2)). Labour relations officers are also routinely as­signed to other types of application, including certification applications, Wherein they also endeavour to achieve either a full settlement of contentious issues or, at least, a narrowing of the issues requiring adjudication. As a review of the Board's Annual Reports will disclose, the vast majority of cases coming before the Board are settled as the result of the efforts of labour relations officers.

15. By the time an application is filed with the Board, the parties have often settled into apparently rigid positions from which they are unable to make settlement overtures di­rectly to the opposite party. In this climate, and in indeed in any situation in which he be­comes involved, a labour relations officer functions as more than a messenger. He seeks from the parties, in confidence, information concerning the strengths and weaknesses of their po­sition, the factual context which they feel obliges them to take the positions they have taken, and the accommodations which might be acceptable. The labour relations officer must be in a position to assure each party not only that he or she will treat the information sought as confidential and withhold disclosure from the opposite party, but also that disclosure to the opposite party cannot later be compelled should settlement efforts fail. . This confidence must be absolute. It is of little use to a labour relations officer to tell a party that his discussions will be kept confidential if he must, at the same time, admit the existence of a number of exceptions to this rule, any of which may result in the compelled disclosure of their sup­posedly confidential discussion. In this regard, the legislature has recognized in sections 109 and 111(6) that the common law privilege extended to communications in furtherance of set­tlement might not be a sufficient protection for the role to be discharged by a labour relations officer. The Legislature has therefore provided in section 109 and subsection 111(6) that the Board's officers may not be compelled to testify respecting information obtained in the dis­charge of their duties. The firmness of the Legislature's resolve in this regard is demonstrated by the speed with which it responds to any discovery that there is a gap in the protection afforded by these provisions (see Re Dorothea Knitting Mills Ltd. and Canadian Textile & Chemical Union et al (1975) 1975 CanLII 654 (ON HCJ), 9 OR. (2d) 378 (Div. Ct.) a decision dated May 13, 1975 to which the Legislature responded in S.O. 1975, C.76, sections 25 and 26, by repealing the predecessors of sections 109 and 111(6) and replacing them with the present provisions. S.O. 1975 C.76 came into force upon receiving Royal Assent July 18, 1975).

16. Sections 109 and 111(6) each afford the Board a discretion to permit disclosure. In exercising that discretion, however, the Board remains sensitive to the importance of the set­tlement process and the damage that would be done to that process by carving out any ex­ception to the general privilege it assigns to communications in furtherance of settlement: Crown Electric, [1978] OLRB Rep. April 344. The Board also recognizes the difficulty, if not the impossibility, of trying to apply the privilege selectively so as to admit, for example, evidence of isolated statements made by an officer to a party, even for the limited purpose of explaining that party's resulting behaviour: Auto Jobbers Warehouse Ltd., [1982] OLRB Rep. May 649. Quite apart from any question of compelling the testimony of a labour relations officer, the willingness of the Board to accept the testimony of any witness to communications to or from a labour relations officer will be strongly influenced by the Board's concern to protect the integrity of the settlement process, and efficacy of the labour relations officer's important role in that process: Crown Electric, supra, and Auto Jobbers Warehouse Limited, supra (see also A. J. (Archie) Goodale Ltd., [1977] Can. LRBR 309 (CLRB) at pages 315-316 for a review of this issue as it arises under the Canada Labour Code; and see CCH Ca­nadian Limited, [1974] OLRB Rep. June 375 for discussion of the similar principles appli­cable to the receipt of evidence of discussions with conciliators during the bargaining process and the effect of subsections (2) to (5) of section 111 of the Act).

17. The Board recognizes that a concern for the settlement process must encompass respect for agreements which are the product of that process (see Crown Electric, supra; Bot Construction (Canada) Limited, [19821 OLRB Rep. Dec. 1811; and, Ontario Hydro, Board File No. 0708-82-M, Reported at [1983] OLRB Rep. Nov. 1869.) We recognize that the Board's refusal to compel disclosure by an officer of what he said or was told during the settlement process may hinder enforcement of agreements reached entirely through the me­dium of the labour relations officer. The answer to this apparent contradiction is simple. The parties are always in a position to ensure that they can later prove the existence and terms of an agreement without requiring the labour relations officer as a witness. When they believe a settlement has been reached, the parties can and customarily do draft and execute a written memorandum of the terms of the agreement. Further, it will normally require little effort for the parties to engage in simple direct communication of some kind to provide oral confir­mation of the supposed agreement. For these reasons, we concluded that the prejudice to the settlement process which would be caused by granting our consent to call the officer in the circumstances of this case far out-weighed the prejudice our refusing to do so might cause, particularly as it had been and ordinarily is within the power of the parties to avoid the latter prejudice.

18. After the Board announced its ruling denying consent to call the Labour Relations Officer, both parties reaffirmed their preparedness to argue the matters before us on the basis of the facts outlined by counsel.

III

19. In his argument, counsel for the applicant emphasized that the timing of the release by the Board of the Notice to Employees, as contemplated by the Agreement of September 12th, was highly critical. The union was bound not to make reference to the terms of the Agreement itself. It would only get the benefit of those terms once the employer had complied with the requirement that it admit its wrongdoing in notices mailed to employees. The time frame was critical because the admissions would only have value in relation to the vote if received by the employees within the contemplated time-frame. We were told the method of distribution was important because at least one of the complaints settled by the Agreement of September 12th related to letters written to the employees by the employer and sent to them by mail to their homes. Distribution by some other means in a different time-frame was not, in the submission of counsel, sufficient compliance with the Agreement of September 12th.

In that regard, counsel asked the Board to require a mailing of the original notice if the Board decided to order a second representation vote.

20. Turning to the letter of September 23rd itself, counsel for the union noted this was sent at or after the time the parties originally contemplated that the Notice to Employees would be mailed. It contains no acknowledgement of wrongdoing. In the submission of counsel its content, taken in context, goes beyond the employer's freedom of speech preserved in section 64 of the Labour Relations Act. Reviewing the letter paragraph by paragraph, counsel noted the reference in the first paragraph to a letter sent in August, which counsel says was the subject of one of the 13 complaints settled by the terms of the September 12th Agreement. Counsel argued that by referring to that letter the respondent effectively restated a position which it later agreed was unlawful.

21. Counsel said that the first numbered paragraph should be interpreted as an under­taking that the Association will charge no dues in the future, and to take from that that the President of the respondent was in a position to dictate what the Association will charge by way of dues. The second numbered paragraph was said to cast a sinister aura about the union by the use of the words "outside persons move in to intervene". The word "intervene" is used in the sense of "interfere", the applicant said. Even if it was not taken in that sense, it would at least have been taken as meaning that bargaining unit employees would not be involved in bargaining. This is factually incorrect, we were told, as it is the policy of this union to employ a bargaining committee of which bargaining unit employees are members. The applicant argues that the third numbered paragraph, read together with the sentence which follows it, amount to an implied threat that job security will be jeopardized by unionization. References to the Association in the balance of the letter were said to further demonstrate employer control over the Association. Having regard to the tests laid down in Bell & Howell, [1968] OLRB Rep. Oct. 695, counsel for the applicant argued that the letter represents a vi­olation of section 64 of the Labour Relations Act even in isolation from its context. The con­text is said to be a Board decision finding thirteen previous violations of the Act and an undertaking to commit no further violations. Counsel said that the distribution of the Notice to Employees on the day before the vote was the first indication to employees of a response to previous breaches, and was inadequate as a response to those breaches both because its manner of distribution failed to duplicate the employer's earlier manner of alleged interfer­ence, and because the late distribution afforded the employees insufficient time to absorb and react to the Notices. In the result, counsel urged us to find that the employees were not able to freely express their wishes in the vote conducted September 29th and, indeed, that the cu­mulative effect of the employer's behaviour was such that the true wishes of the employees are not likely to be ascertained in any new vote.

22. Counsel for the respondent took the position that the posting of the letter of Sep­tember 23rd was not a violation of the Act, and that even if it was a violation it was not so serious as to warrant a certification without a vote. We were asked to read the letter not as a lawyer would, nor to parse the letter sentence by sentence, but to consider what a reasonable employee would take from the letter as a whole. Counsel described the letter as simply stating facts promoting the employer's past good record as an employer and expressing, within the bounds of free speech, a preference for continued dealings with the Association. Counsel dis­tinguished the references to the Association here from the state of facts which existed in such cases as Homeware Industries Limited, [19811 OLRB Rep. Feb. 164 and Upper Canadian Furniture Limited, [1981] OLRB Rep. July 1016, where the employee association was not pre­existing but came into existence during a trade union organizing campaign. With respect to prior events as context for the letter, counsel for the respondent directed us to the language of the agreement of September 12th, and argued that what occurred previously cannot be re­lied upon or referred to in disposing of the applicant's request for relief. Even if the letter of September 23rd is a violation of the Labour Relations Act, the respondent argued, it is not a violation of the same magnitude as the violations which have lead the Board to grant a sec­tion 8 certificate in such cases as Radio Shack, [1979] OLRB. Rep. Mar. 248, K-Mart Canada Ltd., [1981] OLRB. Rep. Jan. 60, Norsemen Plastic Ltd., [1979] OLRB Rep. Apr. 325, and Skyline Hotels Ltd., [1980] OLRB Rep. Dec. 1811. With respect to the method of distribution of the Notice to Employees contemplated by the September 12th Agreement, counsel for the respondent asked us to note that in vote situations the parties jocky to get their documents in the hands of employees at the last minute. In this respect, counsel asked us to find that the delivery of the Notices to Employees on September 28th may have provided the trade union with an advantage over the position in which they would have found themselves had the em­ployer been able to deliver the Notices by mail within the time frame originally contemplated by the parties.

IV

23. The agreement of September 12th was the successful result of the settlement proc­ess discussed earlier in this decision. The Board's treatment of settlements should be such as to encourage the parties to rely on that process as an alternative to adjudication. The parties agreed on the posting and mailing of a Notice of employees. We should give that fact, and the content of the Notice, no more or less weight than we would if that remedy and Notice were provided for in a prior Board decision. A prior Board decision, however, would contain findings of fact on which we could rely in assessing the employer's subsequent conduct (see Radio Shack, sup ra). The settlement agreement and agreed Notice do not tell us precisely what the employer did. The applicant says we should fill that gap by looking at the nature and number of the complaints settled by the agreement. We will not. The applicant agreed not to rely on the incidents complained of in making any subsequent application under section 8. It would be overly technical, in the circumstances of this case, to say that that agreement does not apply equally to reliance on the subject matter of the settled complaints in a sub­sequent section 89 complaint which will, in turn, be the basis of a claim under section 8.

24. We can, however, look at the settlement itself. The respondent does admit that, prior to September 12th, it violated the Act "by interfering with the right of employees to join a trade union." As we are treating the agreed remedy as though it were the result of a Board decision, we must assume that the admitted interference would have led the Board to make a "posting order". The nature and purpose of that remedy were discussed by the Board in Valdi inc., [19801 OLRB Rep. Aug. 1254, at paragraph 24, in the following terms:

... One of the unique remedies developed by labour relations agencies to respond to the psychological impact of unfair labour practices requires the offender, whether employer or union, to communicate to employees affected by an unfair labour practice that it has been found guilty of vi­olating statutory labour laws and that it will henceforth conform to their requirements. This remedy, in the usual form of a posting of a notice for sixty days in a conspicuous location(s) in the workplace, was first de­veloped by the Board in Radio Shack, supra, although its origin in labour law is ancient. ... In more exceptional cases the posting of a notice will be insufficient and mailing, publishing, and reading of notices may be directed in order to redress the impact of unfair labour practices in ques­tion. ... However, we believe the posting of notices should not be con­fined to exceptional cases because isolated violations of the Act have an undoubted and significant psychological impact on labour relations and the attainment of the statute's objectives. Making employees aware of the fact that an errant employer or trade union cannot violate the Act and that the employee has meaningful legal rights is vital to the success of The Labour Relations Act. Admittedly, the effect of the posting require­ment often will be difficult to evaluate but this is no reason for inaction. Surely, for example, the fear for the job security will be lessened with the realilzation that someone more authoritative than the employer has a voice in determining what he can do to those who support a trade union and that someone more powerful than a trade union will protect those who lawfully oppose it. Even a belated notice is better than none, if it helps to dispel any fears, confusion or ill-will created by a situation which has been equitably resolved.

In agreeing to a posting remedy the parties impliedly recognized the likelihood that the em­ployer' s admittedly unlawful activities had had the kind of psychological impact referred to in the passage quoted. By also agreeing to mail the Notices, the employer impliedly acknowl­edged the importance of using that mode of communication to redress the impact of its prior unlawful conduct. If the Notices had been posted and mailed within the time frame contem­plated, and if nothing else untoward had happened prior to the vote, the applicant could not have been heard to say that the residual impact of the employer's interference had prevented the employees from expressing their true wishes in that vote. The posting and mailing in that time frame, however, is the only method of redress about which that can confidently be said. Knowing that the employer's prior behaviour constituted illegal interference which necessitated a remedial response aimed at reassuring employees that their right to organize would be re­spected and could be protected, we can easily say that the vote would clearly have been un­reliable if there had been no remedial response at all. Without knowing more about the illegal behaviour admitted by the employer, we can not say with confidence that any remedial re­sponse other than the one agreed to September 12th was adequate to ensure the reliability of the vote. In short, quite apart from the effect of the letter of September 23rd, we must be left in doubt about the vote of September 29th simply because the Notices were not mailed in the time frame contemplated. It is not particularly useful to assign responsibility for the acts or omissions which led to that result. Even acts or omissions which are the sole re­sponsibility of the Board will result in the directing of a new representation vote if the Board concludes that those acts or omissions adversely affected a representation vote: Canadian Johns-Man ville Co., Ltd., [1979] OLRB Rep. April 209.

V

25. Turning to the letter of September 23rd, we must consider whether, as the employer claims, that letter represents the exercise of the employer's freedom to express his views which is expressly reserved in section 64 of the Labour Relations Act, or whether, as the union claims, it constitutes conduct enjoined by that section. In assessing employer conduct the Board is obliged to take into account the responsive nature of the relationship of employees with their employer. Predictions of what the future holds may constitute threats or promises, if it is in the power of the employer to make the predictions come true and the employees perceive in their employer a willingness to exercise that power in response to the success or failure of their attempt at unionization. In Viceroy Construction Company Limited, [1977] OLRB Rep. Sept. 562, the restraint on an employer's freedom of expression was explained in this way:

The Act recognizes that an employer is in the more immediate position to affect an individual's employment relationship, if only by virtue of its freedom to advance, preserve, impede or terminate an individual's em­ployment. Therefore, by the terms of the Act, that very freedom is re­stricted. In order to protect and promote the collective bargaining process the Legislature has provided that no employer is free to affect a person's job security or conditions of employment when the employer's action is prompted by an anti-union motive, (e.g. section 58 [now 66] of the Act). For the same reason, by virtue of the Act, an employer's freedom of expression regarding possible union representation of his employees is not absolute. While he is of course free to express his view of repre­sentation by a trade union he may not use that freedom of expression to make overt or subtle threats or promises motivated by anti-union senti­ment which go to the sensitive area of changes in conditions of em­ployment or job security.

26. A mere expression by the employer of its preference to remain non-union will not violate section 64, as the Board noted in Playtex Ltd., [1972] OLRB Rep. Dec. 1027 (at ¶5):

Apart from any electioneering or propaganda published by an employer, it is to be assumed that employees recognize that the employer is not usually in favour of having to deal with the employees through a trade union. Accordingly, it ought not be a surprise to the employees when the employer indicates that he would like to have the employees vote against the trade union. An invitation to employees to vote against the trade union delivered in writing in the absence of any surrounding facts or circum­stances which would cause the employees to place undue emphasis on such statement cannot be characterized as undue influence within the meaning of section 56 of the Act. Indeed, employees might consider the fact that the employer is opposed to dealing with them through a trade union as evidence of the fact that union representation would work to the detriment of the employer and to the advantage of the employees. The mere expression of the employer's opinion in such matter, standing alone, is protected by the provisions of section 56 of the Act. The only pro­hibition on the employer when expressing his views is that such expres­sion of views do not constitute or are not coupled with coercion, intimidation, threats, promises or undue influence.

Any suggestion that unionization will be accompanied by loss of jobs will, however, violate that section: Dylex Limited, [1977] OLRB Rep. June 357, Viceroy Construction Company, supra; Stratton Knitting Mills Limited, [1979] OLRB Rep. Aug. 801; Manor Cleaners Lim­ited, [1982] OLRB Rep. Dec. 1489.

27. Where the employer's message is that future enjoyment of current or previously promised wages, working conditions or benefits is conditional on the outcome of a represen­tation vote, this also constitutes undue influence: Gestetner (Canada) Limited, [1971] OLRB Rep. Feb. 62; J. E. Martel & Sons Limited, [1972] OLRB Rep. Aug. 811; Hostess Food Products Limited, [1975] OLRB Rep. March 218.

28. We agree with counsel for the respondent that in assessing whether the letter of September 23rd went beyond free speech into the realm of undue influence, we must look at the document as a whole and assess it from the point of view of a typical employee receiving it. We are not assisted by the additional suggestion that the letter not be read as a lawyer would read it. Lawyers have no monopoly on imagination or insight; a claim to any supe­riority in either skill might be questioned. We are obliged here to determine the interpretation the employees in the voting constituency were most likely to place on the contents of this letter, in all the circumstances. One of those circumstances is that their employer had illegally interfered with these employees' rights to organize, in a manner requiring redress by a posting and mailing which, to the knowledge of the author of the letter, had not occurred by the time the letter was mailed. Employees who are aware that their employer is prepared to break the law in order to interfere with unionization will more readily find threats and promises "be­tween the lines" in employer propaganda which, absent the prior illegal behaviour, might have appeared innocuous to them.

29. Turning now to text of the letter of September 23rd, we note that the letter's per­spective is that the representation vote of September 29th offered a choice between the ap­plicant trade union and the intervener Association. This takes us to another question of the effect we are to give to the settlement of September 12th. In that settlement the parties, in­cluding the Association, agreed that the Association's "agreement" with the respondent did not affect the right of the union to bring this application for certification. Both the reply of the respondent and the intervention of the Association in the certification application make reference to an Agreement which expires December 31, 1983. If this were a collective agree­ment, it would constitute a bar to this certification application. As the Board has no discretion to ignore statutory bars, it can only give effect to the agreement of the parties by concluding that the Association's agreement with the respondent was not a collective agreement. This con­clusion, coupled with the observation that the Association has never established its status as a trade union, must be taken into account in assessing the employer's letter of September 23rd. The vote ordered by this Board was not a choice between two bargaining agents. Put in a light most favourable to the respondent, this mischaracterization of the vote was, in effect, an expression of preference for dealing with the Association.

30. The Board's response to employer expressions of preference for an employee as­sociation depends on a number of factors. At one end of the spectrum are the cases which find improper interference when the employer responds to a trade union organizing campaign by suggesting to its employees that they should form an employee association: Homeware In­dustries Limited, supra; and, Zehr's Markets Limited, [1971] OLRB Rep. Oct. 638 (and see W Bolen Enterprises Limited, [1973] OLRB Rep. Jan. 50 where propaganda leading to a ter­mination representation vote was found improper where the employer suggested that an as yet unformed employee association might an alternative to continued representation by the incum­bent trade union). The employer's demonstrated preparedness to deal with a newly formed employee association may constitute improper interference even if the Association was initially formed at the suggestion of the employees rather than the employer: Upper Canadian Fur­niture Limited, supra, where the Board said at paragraph 38:

For an employer to attempt to use his right to free speech to initiate an employee association to compete with a union is not protected by section 56 [now 64]. Even where an employer does not sow the seed of an em­ployee association, its active support for the association may become a potent form of interference in contravention of section 56 [now 64] of the Act. Given their economic dependence on their employer, employees may be readily swayed by employer conduct, even where subtle, which indicates support for an association over a competing union.

31. At the other end of the spectrum are cases like Smith Beverages Limited, [1975] OLRB Rep. Dec. 956 and Milltronics Limited, [1981] OLRB Rep. Oct. 1435 wherein an em­ployer's express or implied preference for continued collective bargaining with an incumbent employee association was found not to be improper support or undue influence, when the as­sociation had trade union status and a history of collective bargaining with the employer. Closer to the first mentioned extreme are cases like Seven- Up (Ontario) Limited, [1970] OLRB Rep. May 198 and Primo Importing and Distributing Co. Ltd., [1982] OLRB Rep. Dec. 1869 and [1983] OLRB Rep. June 959. In Seven-Up (Ontario) Limited, supra, employees responded to a trade union organizing campaign by suggesting that an inactive employee committee be re­constituted or revided. Management responded by meeting with the revived committee. That action, together with others, was found to constitute undue influence on the part of the em­ployer. In Primo, the employer extended recognition to, and entered into a purported collec­tive agreement with, an employee association in the shadow of the organizing campaign of the trade union there applying for certification. The Association had been formed by the mem­bers of an employee committee which had come into existence after the applicant trade union lost an earlier representation vote. The Board found (at [1982] OLRB Rep. Dec. 1869) that the Association and its agreement were tainted by the employer support which the employee committee had received. It further found (at [1983] OLRB Rep. June 959) that the employer's dealings with the Association constituted interference contrary to section 64 of the Act.

32. Here the Association was formed long before the applicant commenced its current organizing campaign. The respondent's past dealings with it were part of its approach to em­ployee relations. Provided it is not done in the shadow of a trade union organizing campaign, an employer may legitimately deal with and, indeed, encourage the formation of an employee committee or association as a vehicle through which it conducts its employee relations, so long as there is no pretense by either the employer or the Association that the latter is a trade union. One of the employer's purposes in so doing may well be to create an atmosphere in which union organizing is less likely to occur or be successful. As the Board said in The Globe and Mail Division of Canadian Newspapers Company Limited, [1982] OLRB Rep. Feb. 189 at 211 (¶48):

There is nothing in the Act which prohibits an employer whose employ­ees are unorganized and who are not the subject of a union organizing campaign, from providing terms and conditions of employment which are designed to, and may have the effect of causing employees to turn their back on the option of collective bargaining.

So long as neither the employer nor the association pretends the latter is a trade union as defined by the Labour Relations Act, the mere existence of the association is not a legitimate ground of complaint by a trade union seeking to organize the employer's employees, and that is so even if the association is clearly under the control of the employer. When the employer expresses a preference for continued dealings with such an association, and no one makes any pretense that the association is a trade union, this no more violates section 64 than would an expression of preference for the non-union status quo made by an employer during a trade union campaign to organize his employees. The pre-existence of an employer supported em­ployee comittee or association is, however, an additional potential avenue for improper em­ployer interference in a trade union organizing campaign. The passage quoted earlier from the Globe and Mail case continues as follows:

However, once a trade union begins to organize, it is protected by the provisions of section 64 of the Act and the employer is prohibited from acting with an intention to interfere with the selection of a trade union or the representation of his employees by a trade union. The section en­shrines the employer's freedom to express his views but makes it an off­ence to use "coercion, intimidation, threats, promises or undue influence" as a means of thwarting the rights of the trade union and/or its em­ployees. The granting of benefits or the solicitation of employee griev­ances during the course of a union organizing campaign if motivated even in part by a desire to undermine the trade union, breaches these prohi­bitions.

If the employer responds to a trade union organizing campaign by changing the character or consequences of its dealings with a pre-existing employee committee or association, or by threatening or promising to do so, that behaviour may constitute a violation of section 64 of the Act just as much as it would if the consequences to employees of such changes were promised, threatened or made directly.

33. Applying these principles to the letter of September 23, 1983, we do not find that the references to the Association constitute interference insofar as they describe in positive terms the status quo ante the applicant's organizing campaign. Having described as an ad­vantage of staying with the Association the fact that the Association charges no dues whatever, however, the letter goes on to say that "Over the past years your Association has served you very well — and its services will improve in the future." How can the Association provide improved services while charging no dues, unless it is as a result of the employer's combined willingness and ability to put the Association in a position to do so? In effect, the employer promises the employees they will receive improvements of an unspecified nature through the Association if they keep the Association by voting against the applicant union.

34. Counsel for the applicant took great exception to the second numbered paragraph of the letter. He said the word "intervene" had cast a sinister aura over his client. Asked by the Board whether that word would have been objectionable if modified by the phrase "on your behalf", counsel said the statement would still leave the untrue impression that em­ployees would not be involved in bargaining. While the employer's statement might have been taken to denigrate or misdescribe the union's intentions or practices, the Board does not nor­mally evaluate the truth or falsity of campaign literature unless the ability of the employees to evaluate such literature is impaired to such an extent that employee wishes can not be de­termined in a secret vote: Stauffer-Dobbie Manufacturing Co. Ltd., 59 CLLC ¶18,147; In­dusmin Limited, [1982] OLRB rep. Nov. 1641; Vogue Brassiere Incorporated, [19831 OLRB Rep. Oct. 1737. This aspect of the employer's propaganda would not have concerned the Board in the absence of the prior employer interference. The presence here of the prior interference does not warrant any different response. While this paragraph is predicting the future con­sequences of unionization, the supposed adverse consequence recited is not one over which the employer has or would be thought by its employees to have control. Counsel for the ap­plicant did not argue, and we have no evidence, that the first sentence of this paragraph de­scribes any improvement over the status quo in prior "negotiations" between the respondent and the Association.

35. The third numbered paragraph of the letter does give us concern. Its reference to the Association's ability to represent employees regarding "any problem" carries with it the implication that the applicant will be unwilling or unable to negotiate with the respondent over some items important to employees. Absent prior anti-union employer activity, this might merely be taken as a skillful drafting of the usually permitted allegation that unionization re­sults in some loss of flexibility in employee relations. It is a skillful draft, though, and capable of being interpreted as a message that if the employees chose the union, their employer will not bargain with that union over certain matters on which it has previously been willing to entertain representations from employees through their Association. In assessing whether this latter interpretation was the more likely or dominant one in the circumstances of this case, the anti-union context, which we find was created by the admitted prior anti-union activity, is an important consideration, as appears from the Board's analysis in Seven- Up (Ontario) Limited, supra:

Again, the letter also contains the following statement, "We want to grow together, in a harmonious and satisfactory way — with continuous em­ployment and continuous income, week after week, throughout the years." This statement read in the context of an anti-union letter would tend to imply that if the union became the employees' bargaining agent, employment might not be continuous and the employees might not have continous income week after week throughout the years. While it is rec­ognized that a lawful strike might deprive the employees of such con­tinuous employment or income, this statement might well be interpreted that the employer would not want to grow with the employees in a har­monious and satisfactory way — with continous employment etc., if the union became the bargaining agent of the employees.

In the circumstances of this case, we believe employees were likely to interpret the third numbered paragraph of the September 23rd letter as meaning that the predicted narrowing of bargainable issues would result from the employer's response to unionization rather than from anything inherent in collective bargaining. In short, it would likely be taken as a threat or promise that the employer would not bargain in good faith with this union if the employees were to select it as their bargaining agent.

36. Counsel for the applicant made much of the next sentence in the letter:

"Unlike other companies in our industry, we have always provided our regular employees with full employment — five days a week — 52 weeks a year.

He asked us to take notice that the "other companies" in the industry in the Ottawa area are unionized companies. We are not sure that is something of which we could take notice without having it from evidence or on agreement of the parties. Even if we could, that fact alone would not make this statement improper, at least in isolation. An employer is entitled to cam­paign on its record and, to a point, to make comparisons with union employers. There is no evidence before us that the reference to "other companies" contains a hidden message or adds a special emphasis which would be clear to these employees from their knowledge of the in­dustry in Ottawa. We have considered whether the analysis in the quoted passage from Seven-Up (Ontario) Limited, supra, can be applied, with similar result, to the statement under con­sideration. The passage dealt with in the quote from Seven-Up (Ontario) Limited was in the form of a statement of future desire. The passage under consideration here is, in form, a state­ment of past and present fact.

While a similar interpretation is possible in the context of prior anti-union activity, we have concluded that it is not the probable interpretation in the circumstances of this case.

37. While we do not find in the letter of September 23rd any direct threat, express or implied, to job security, we have found improper promises and threats which, in our judg­ment, constitute undue influence in violation of section 64 of the Act. That finding, together with our earlier observations in paragraph 24 of this decision lead us to conclude that the results of the representation vote of September 29th do not reliably reflect the true wishes of the employees in the bargaining unit described in paragraph 1 of this decision. That vote is, accordingly, set aside, and the Registrar is directed to destroy the ballots within thirty days of the date of this decision.

VI

38. The applicant seeks certification without a representation vote pursuant to section

8 of the Act, which

Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargain­ing, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.

Certification can be granted under that section only if the following pre-conditions are met:

(1) The respondent employer must have contravened the Labour Rela­tions Act.

(2) The applicant trade union must have membership support that, in the opinion of the Board, is adequate for the purposes of collective bar­gaining.

(3) The respondent employers' contravention of the Act must have re­sulted in a situation in which the true wishes of the employees are not likely to be ascertained.

39. We have found a violation of the Act. The applicant had sufficient membership sup­port to qualify for a pre-hearing vote. The result of that vote, while unreliable as an indication of the true wishes of the employees, is at least consistent with the union's having maintained that level of support even in the face of the employer's activities. On that basis we feel the applicant has the membership support requisite for a certification without a representation vote pursuant to section 8 of the Act. We have already concluded that the true wishes of all the employees were not likely ascertained in that representation vote. The question which remains is whether the true wishes of the employees are likely to be ascertained in a new represen­tation vote.

40. Not every violation by an employer of the Labour Relations Act creates a climate in which employee wishes can in no circumstances be ascertained. The presence of the third of the pre-conditions to section 8 certification is a question of fact which is determined by the Board on a case by case basis. The factors which have influenced this determination were reviewed by the Board in The Globe and Mail Division of Canadian Newspapers Company Limited [1982] OLRB Rep. Feb. 189:

The Board has found in a number of cases that the employer, in vi­olating the Act, made threats to the continued job security of his em­ployees conditional on whether the union succeeded in its attempt to become certified. In these cases, the Board concluded that the employer violation of the Act was such as to make it unlikely that the true wishes of the employees could be ascertained. An employee is unable to express his true wishes where he has been told by his employer, either expressly or impliedly, and has reason to believe, that the selection of a union may cause the company to reduce the scale of its operation or close down with an attendant reduction in the number of jobs. (See Dylex Limited, supra, La rain Products (Canada) Ltd. [1977] OLRB Rep. Nov. 734, Riv­erdale Frozen Foods Limited, [1979] OLRB Rep. April 338, Straton Knitting Mills Limited, [1979] OLRB Rep. Aug. 801, Sommerville Belkin Industries Lilmited, [1980] OLRB Rep. May 79] and A. Stork and Sons Ltd., [1981] OLRB Rep. April 419.)

The Board has also applied the section where the cumulative effect of a range of unlawful employer activities, none of which taken separately might call the section into play, has the effect of undermining the con­fidence in the rule of law which a reasonable employee is presumed to have and which gives a reasonable employee the confidence to make a free choice. In these circumstances the Board is forced to the inevitable conclusion that the true wishes of the employees are not likely to be as­certained. (See Radio Shack, supra, K-Mart, supra, Skyline Hotel Lim­ited, supra and Robin Hood Multi Foods [1981] OLRB Rep. July 972.)

In assessing whether employer breaches of the Act so adversely affect the ability of employees to express their wishes as to justify certification without a vote, the Board considers whether remedies for those breaches can be so crafted as to create a climate in which a representation vote might successfully ascertain the wishes of the employees: Great Canadian Pizza Co., [1980] OLRB Rep. Feb. 216; Simcoe Manor Home for Aged, [1980] OLRB Rep. Nov. 1696; Homeware Industries Ltd., [1981] OLRB Rep. Feb. 164; A. Stork & Sons Ltd., [1980] OLRB Rep. April 419; Upper Canadian Furniture Ltd., [1981] OLRB Rep. July 1016 and Primo Importing and Distributing Co. Ltd., [1983] OLRB Rep. June 959.

41. The possibility of a section 8 application was contemplated by the parties' agree­ment of September 12, 1983, which provided that the subject matter of the complaints settled by that agreement could not later form the basis of a section 8 application. It is less than clear whether paragraph 4 of the agreement prevents reliance on the agreement or the remedy provided for therein as part of a later argument in favour of section 8 relief. The applicant, of course, argues that we should take into account the fact that thirteen prior complaints were settled with a posting order acknowledging violation of the Labour Relations Act. We think it inconsistent with the provisions of the agreement that the number of complaints settled by that agreement should form any part of our assessment of the applicant's claim for relief under section 8. We observe, however, that to do so would work against the applicant's argument. If, as we are obliged to assume, a posting and mailing within the time-frame contemplated by the agreement would have adequately counteracted the effect of thirteen "counts" of em­ployer interference, then we are unlikely to conclude that no remedy for a fourteenth and al­legedly similar count could restore a climate in which the wishes of employees could be ascertained in a representation vote.

42. We believe that the adverse impact of the respondent's contravention of the Act can be rectified so as to enable the wishes of the employees to be ascertained in a new repre­sentation vote. In order to rectify that adverse impact, the Board orders that the respondent:

(1) cease and desist violating section 64 of the Labour Relations Act;

(2) permit at least two representatives of the applicant to forthwith hold a meeting on the respondent's premises with all employees in the vot­ing constituency, out of the presence of any member of management, during normal working hours without loss of pay, such meeting to be a minimum of one hour in length and at least three full days prior to the date ultimately set for the conduct of the new representation vote ordered by the Board herein;

(3) provide the applicant with reasonable access to and use of bulletin boards where notices to employees are regularly posted, until the conclusion of the representation vote ordered by the Board herein;

(4) post copies of the attached Notices marked Appendix in both English

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE ISSUED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS EOARD ISSUED AFTER A HEARING IN WHICH BOTH THE COMPANY AND CANADIAN UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT BRINK AND UISTILLERY WORKERS HAD THE OPPORTUNITY TO PRESENT EVIDINCE. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT AND HAS ORDERED US TO INFORM OUR EMPLOYEES OF THEIR RIGHTS.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

To ORGANIZE THEMSELVES;

To FORM, JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNIONS

To BARGAIN AS A GROUP, THROUGH A REPRESENTATIVE OF THEIR OWN CHOOSING

To ACT TOGETHER FOR COLLECTIVE BARGAINING;

To REFUSE TO DO ANY AND ALL OF THESE.

WE ASSURE OUR EMPLOYEES THAT:

WE WILL NOT DO ANYTHING THAT INTEFERES WITH THE RIGHTS LISTED ABOVE.

WE WILL NOT ENGAGE,IN ANY CONDUCT WHICH INTERFERES WITH THE EMPLOYEES FREE SELECTION ORGANIZATION OR ADMINISTRATION OF THE CANADIAN UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS.

WE WILL PERMIT THAT UNION TO HOLD A MEETING WITH ALL EMPLOYEES IN THE VOTING CONSTITUENCY, WITHOUT LOSS OF PAY, ON COMPANY PREMISES AND DURING WORKING HOURS AS ORDERED BY THE BOARD.

WE WILL PERMIT THAT UNION REASONABLE ACCESS TO THE BULLETIN BOARD COMMONLY USED TO POST MESSAGES TO EMPLOYEES UNTIL THE COMPLETION OF THE REPRESENTATION VOTE AS ORDERED BY THE BOARD.

WE WILL ALLOW OUR EMPLOYEES, THROUGH THE TAKING OF ANOTHER REPRESENTATION VOTE ORDERED BY THE BOARD, TO FREELY DECIDE WHETHER OR NOT THEY WISH TO BE THE CANADIAN UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTI LLERY WORKERS.

IF THE MAJORITY OF EMPLOYEES VOTING CAST BALLOTS IN FAVOUR OF CANADIAN UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS AND THE ONTARIO LABOUR RELATIONS BOARD CERTIFIES THAT UNION EMPLOYEES REPRESENTATIVE, WE WILL MEET AND BARGAIN IN GOOD FAITH WITH THAT UNION AND MAKE EVERY REASONABLE EFFORT TO HAKE A COLLECTIVE AGREEMENT.

SEVEN-UP/PURE SPRING OTTAWA, A

DIVISION OF SEVEN-UP CANADA INC.

PER: (AUTHORIZED REPRESENTATIVE)

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.

DATED this 13TH day of JANUARY ,1984.