Retail, Wholesale and Department Store Union AFL-CIO-CLC v. T. Eaton Company Limited, 1985 CanLII 1086

[1985] OLRB Rep. November 1683

0861-84-U Retail, Wholesale and Department Store Union AFL-CIO-CLC, Complainant, T. Eaton Company Limited, The Cadillac Fairview Corporation Limited and T.E.C. Leaseholds Limited, Respondents

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members A. Grant and L. C. Collins.

APPEARANCES: James Hayes and Bert Scott for the complainant; Harvey A. Beresford and R. A. Hubert for T. Eaton Company Limited; R. E. Hawkins for Cadillac Fairview Corporation Limited.

DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER L. C. COLLINS; November 13, 1985

1. The instant matter involves a complaint under section 89 of the Labour Relations Act in which the Board issued a final decision on June 12, 1985. That decision upheld the complaint in part against both the respondent T. Eaton Company Limited and the respondent Cadillac Fairview Corporation Limited, and issued certain orders with respect to each of them.

2. On June 26, 1985, the respondent T. Eaton Company Limited ("Eaton's") wrote to the Board requesting reconsideration of the Board's decision as follows:

We are counsel for the T. Eaton Company Limited and on their behalf respectfully request that the Board exercise its jurisdiction pursuant to Section 106(1) of the Labour Relations Act and reconsider its decision of June 12, 1985 in this matter.

This request is made for the following reasons:

1. The limitations on Eaton's imposed by The Board in its decision are so unclear and contradictory that they are incapable of implementation and application. By way of illustration:

(a) The nature of the literature that can be prohibited is ambiguous.

(b) The frequency of distribution is ambiguous.

(c) The persons entitled to distribute literature are unclear.

(d) The time at which literature can be distributed is unclear.

2. The direction contained in paragraph 84 of the decision is inconsistent with the reasons contained in the decision.

3. The decision purports to permit a certain latitude for employees of Eaton's to distribute union literature on the store premises but in failing to provide any clear limits on this latitude unfairly places Eaton's in severe jeopardy when it acts to restrict the distribution of such literature.

4. The decision does not impose any conditions on the Complainant and allows it to act with impunity thereby inviting extensive litigation.

5. The 'Notice to Employees' required to be issued by Order of The Ontario Labour Relations Board is incapable of application and enforcement and is inconsistent with the decision of The Board.

6. The Board by its decision and order in attempting to proscribe the future conduct of Eaton's in relation to unknown future fact situations, has exceeded its jurisdiction.

7. The Board in concluding that the Respondent Cadillac Fairview was at all material times acting on behalf of Eaton's failed to take into consideration the evidence and, more particularly, did not deal specifically with the testimony of the senior officials of Cadillac Fairview and their uncategorical denial that they at anytime acted on behalf of Eaton's.

In view of the foregoing, Eaton's is not proceeding with the posting of the Notice to Employees at this time.

We respectfully request that the Board schedule a hearing for the purpose of entertaining submissions from counsel with respect to this matter."

Paragraph 7 of Eaton's letter presumably is addressed to the order made by the Board not against Eaton's but against Cadillac Fairview, and in that regard is interesting in light of the position that Eaton's has maintained on the "agency" issue itself. Whether Eaton's can claim status to raise the objection, however, is academic, since the letter from Eaton's was followed by a letter from the respondent Cadillac Fairview Corporation Limited dated July 9, 1985, and requesting reconsideration on its own behalf. That letter reads as follows:

"We are counsel for The Cadillac Fairview Corporation Limited and T.E.C. Leaseholds Limited.

Pursuant to the provisions of s. 106(1) of the Labour Relations Act, we would request reconsideration by the Board of its decision of June 12, 1985 in the above matter upon the following grounds:

(1) The Board's finding that Cadillac Fairview acted 'on behalf of Eaton's is contrary to the direct and uncontradicted evidence of the witnesses, Geoffrey J. Harrison, John N. Dennis, Herbert Vincent and John F. McEwan all of whom specifically stated that at no time did they act on behalf of Eaton's but at all times made an independent decision based on their own observations of the activities in the mall as they related to Cadillac Fairview's own policy with regard to solicitation and the distribution of literature.

(2) The Board's Order vis-a-vis Cadillac Fairview is inconsistent with the law and in particular the Trespassed Property Act.

(3) The Board's decision with regard to attendance~ on the property of Cadillac Fairview and the distribution of material on the property of Cadillac Fairview is without limit as to the number of occasions, frequency of attendance, and manner of solicitation and as such operates to condone the creation of a nuisance.

(4) The Board by its decision has placed a third party non-employer of the employees in question, i.e., Cadillac Fairview in a worse position than the employer of the employees by requiring the non-employer to grant access to persons where the actual employer of the employees is not required to grant access arid as such the Board has thereby exceeded its jurisdiction.''

The complainant, upon receipt of the two letters quoted above, responded as follows:

"We have for comment letter from counsel for Eaton's and Cadillac Fairview dated June 26th and July 9, 1985, respectively concerning their requests that the Board reconsider its decision in this matter dated June 12, 1985.

On behalf of the union it is our submission that neither of the letters raise issues which require either a further hearing in the matter or that the Board should reconsider its decision. The factual and legal issues were exhaustively and thoroughly canvassed in final argument by counsel for all parties. We refer the Board to The Corporation of the City of Ottawa [1982] O.L.R.B. Rep. 1698 (Nov.); Canadian Union of General Employees [1975] O.L.R.B. Rep. 320 (April); Sears Canada, O.L.R.B. File #1305-84-R, unreported, June 25, 1985, in support of the proposition that

'The Board will not permit its authority to reconsider decisions to become a forum for re-arguing the merits or submissions on matters already dealt with by the Board (Sears, supra at para. 8)

With respect to concerns raised by the respondents concerning the remedies granted by the Board, we do not accept the implicit and explicit submissions of the respondents that such relief is inappropriate or unfair. The gravamen of that point of view is that in order to prevent possible future fact specific litigation which might be unpredictable in outcome, statutory rights of employees should be delimited from the outset. That view is clearly untenable in view of the fundamental rights at issue in this case. No counsel in this case during final argument invited the Board to draw a detailed code of conduct. The Board has simply provided a basic framework requiring the respondents in limited ways for the first time to consider statutory employee rights in the application of their employee and/or commercial policies.

In conclusion, we submit that it is extraordinary that Eaton's on the strength of a Section 106 application has simply declared that it 'is not proceeding with the posting of the Notice to Employees at this time'. We respectfully request that the Board confirm its original award without delay. Needless to say, should further hearings be scheduled by the Board or should further hearings be scheduled by the Board or should this matter be taken further, we reserve any rights open to our client in the circumstances to seek review of those portions of the decision of the Board which were unfavourable to the positions submitted on behalf of the trade union."

3. Section 106(1) of the Labour Relations Act provides:

"The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling."

A proper response to the respondents' requests for reconsideration requires a brief review of the basis upon which the Board has always considered it appropriate to exercise the power granted it under section 106(1) to "reconsider any decision, order, direction, or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling". That power must be read against the normal expectation in law, specifically included in the words of section 106(1) itself, that once a tribunal has reached and issued a decision on a matter that has been fully litigated before it, that decision is "final and conclusive" (subject, of course, to whatever avenues of review may properly lie to the Courts). Apart from wishing to exhaust section 106(1) as a preliminary to moving in the Courts, any party in receipt of a decision it deems unfavourable may feel perplexed by it, and may well experience an urge to re-state its case to the tribunal in the hope that the tribunal may yet "see the light", from the party's point of view. A party on either side of any decision may also see in it language that it wished had been expressed otherwise, either to make the decision perhaps a little more favourable to it, or to enable it to better judge for the future what the law, as expressed in the decision, requires its conduct to be. But if one party's "success" in litigation is to be fairly protected, and a reasonable expectation of 'finality to decisions is to be fostered in the community, a tribunal must resist, except on the most exceptional of grounds, an invitation to re-state, explain, or otherwise attempt to improve the language it has ultimately settled upon in issuing its final decision. As the Board stated in John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096 at 5:

"The Board exercises its jurisdiction under section 95(1) [as it then was] of the Act to reconsider and vary or revoke any decision with care and caution in order not to undermine the finality of its decisions and, as stated by the Board in Canadian Union of General Employees, [1975] OLRB Rep. April 320:

'Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously.'

These are general standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decisions, but also to allow parties who may be affected by the Board's decisions some degree of certainty of what to expect from the Board."

And as the Board has also stated, most recently, as the complainant notes, in Sears Canada Limited, OLRB File #1305-84-R, unreported, June 25, 1985 at para. 8:

"The Board will not permit its authority to reconsider decisions to become a forum for re-arguing the merits or submissions on matters already dealt with by the Board."

4. The foregoing comments, the Board feels, are dispositive of the grounds for reconsideration put forward in the letter from Cadillac Fairview, and of the grounds put forward in paragraphs 1, 3, 4 and 7 of the letter from Eaton's. The Board has considered all of the evidence before it, and the submissions of the various parties, in formulating its June 12th decision. Paragraphs 1, 3 and 4 of Eaton's letter in particular appear to call upon the Board to write more detailed guidelines for the parties which would go beyond the specific factual situations placed before the Board for judgment in this one case, while paragraph 6 of the letter appears to challenge the Board for allegedly doing just that. The Board appreciates the concern of the parties for guidance, but in its judgment has gone as far as it fairly and usefully can on the specific facts before it; no party before the Board encouraged it to attempt to divine a complete code of conduct for the intersecting rights put in issue by this case, and further elucidation of the competing interests in this relatively uncharted area will have to be done, if conflict arises, on a case by case basis.

5. With respect to Eaton's paragraph 6 itself, that the respondent Eaton's had a blanket "no-distribution" policy with respect to literature on its premises was clear from both the evidence and the submissions of Eaton's before the Board, and the intercession of Eaton's on the single occasion of distribution by Trish Willis in Bites 'n Nibbles provided additional evidence of that. We note as well, in response to a submission made by Eaton's orally, that the "Trish Willis" incident was an example, as the Board views the evidence, of simply an attempt to distribute Union literature in a restaurant of the respondent prior to store opening (paragraph 15 of the Board's decision), and, for the reasons given in paragraph 77, is not synonymous with the kind of "table-hopping" discussed in connection with the Marshall Field case.

6. We turn to consider, therefore, the grounds for reconsideration raised by the respondent Eaton's in paragraphs 2 and 5 of its June 26th letter. As noted above, it was clear before the Board that the policy Eaton's had adopted with respect to the distribution of Union literature on store premises was one of blanket prohibition, and Eaton's explained to the Board its reasons for having adopted that stance. The Board, however, did not find Eaton's policy of a blanket prohibition sustainable, and ordered Eaton's to make some modifications to its policy in that regard. With respect to "casual conversation", on the other hand, Eaton's had, at least by the time of the proceedings before the Board, articulated a policy that in general was sufficient to satisfy both the complainant and the Board, and no order from the Board requiring Eaton's to adopt a different policy in that regard appeared necessary.

7. There remained, however, the concern of the Board with ensuring communication to the employees of Eaton's of the policy regarding casual conversation that had been articulated only in the hearings before the Board, in light of the statements of Eaton's in, for example, its letters of May 9, 1984, and July 24, 1984, which are set out in the original decision. This was of particular concern because "casual conversation" is, by its nature, something which employees engage in on their own, as opposed, for example, to "mass" distribution of propaganda which the evidence shows takes place under the guidance and instruction of the Union. In light of the posture taken by Eaton's on the subject of casual conversation before the Board, however, the Board was hopeful that the problem created by those earlier letters could be solved by Eaton's including a reference to its own position in the Notice it was being otherwise directed by the Board to send to employees. In that way, the problem which the letters created could have been rectified without having to submit Eaton's to a further finding of an unfair labour practice under the Act. The Board in its original decision specifically refrained, therefore, from making a finding either way (paragraphs 19, 82) on the letters purporting to set out at an earlier point in time Eaton's position on the broad question of "soliciting" on the premises.

8. The respondent Eaton's, however, has balked at being called upon to so communicate its policy on "casual conversation", at least in the form of a Board Notice and in language edited by the Board, in the absence of a Board finding of liability in that regard. Such a finding is not, on the evidence before us, difficult to make. Eaton's in its letter of May 9, 1984, asserted:

"Employees generally have been informed that the Law prohibits solicitation for union members during working hours and further that solicitation is prohibited by Company Policy."

More explicitly, the letter of July 24, 1985. stated:

"I would like to point out to you that these telephone numbers are Company business numbers and are not to be used to receive or make calls regarding union business. The employees have been so informed and you may choose to also inform them that solicitation on Company premises is not permitted."

[emphasis added]

The letters were issued over the signature of Mr. Hubert, Eaton's Employee Relations Manager, and on their face appear to assert a prohibition which would include the act of one employee seeking in casual conversation to encourage another employee to become a member of the Union anywhere on Eaton's premises, whether the employees happen to be on working or non-working time. With respect to the July 24th letter, in particular, Mr. Hubert testified frankly that he could not say for certain what he had intended the last sentence to apply to at the time, but he felt that one ought to read it in the context of the telephone usage otherwise referred to in the letter.

9. There is also evidence before the Board from Ms. Currie that, as a practical matter, she would expect casual conversation in the store to embrace the subject of the Union, and from Trish Willis that, at least in her department of 19 people, casual conversation about the Union was not unusual or inhibited. But Ms. Willis has demonstrated, in her actions in the campaign and her demeanour before the Board, an aggressive kind of leadership that the Board cannot assume would be equally present within other departments, and the Board is prepared to accept the submission of the Union that the effect in general terms of the prohibition set out in Eaton's correspondence, in its unqualified form, would be such as to at least, in the words of the Union, "cast a cloud" over the average employee seeking to freely exercise his or her rights to discuss the Union within the store, without fear of employer recrimination, and without having to look over his or her shoulder. It seems to us that the employer must, in a context this sensitive, bear the responsibility for the words it chooses, and a communication of this type by the employer is to be judged on the basis of its reasonable and likely impact. If that impact is one which would unnecessarily and improperly interfere with the exercise of statutory organizing rights, the action of the employer must be characterized as a violation of section 64. Again, as the Board noted in its original decision in a quote from Skyline Hotel, [1980] OLRB Rep. Dec. 1811, paragraph 56:

"As has often been noted, however, the trade union will not in every case be required to prove by affirmative evidence the existence of an anti-union motive. This is so because the effect of certain types of conduct is so clearly foreseeable that an employer may be presumed to have intended the consequences of his acts: A.A.S. Communications, supra; G. W Martin Lumber, [1980] OLRB Rep. May 737; Bank Canadian National, [1980] 1 Can. LRBR 470; Radio Officers' Union v. NLRB, (1954) 33 LRRM 2417."

Such broadly-defined "no-solicitation" rules as were promulgated in the letters here in evidence, it seems to us, falls within that class of conduct.

10. We remain, however, generally content with the policy on casual conversation put forward by Eaton's in the course of the hearings before the Board, and, having heard from the parties, we believe that our relief order should fairly reflect the fact that it is essentially Eaton's own position that is being communicated to employees, not one imposed by order of the Board. The reference to the issue of "casual conversation" will accordingly be deleted from the Board form of Notice which Eaton's has been directed to communicate to its employees. Instead, Eaton's will be directed to communicate its policy directly to employees, in the form discussed below.

11. The policy of Eaton's as stated before the Board is that Eaton's does not seek to control casual conversation amongst its employees at any time on the store premises, so long as such conversation does not interfere with the proper operation of the store, or become an irritant to other employees. The first branch of the exception is in words clearly acceptable to the Board, and represents in broad terms the thrust of what the Board has understood the concern of Eaton's to be. Equally clearly, persistent attempts by employees to engage other employees in conversation about the Union against their will, particularly (although not solely) while such employees are on duty, might well become an irritant to those employees, and reach a point where the proper operation of the store is being affected. The employer Eaton's, in the face of any such complaints, will have to make a judgment as to what is reasonable in that regard, as it would be required to do in the case of any employment-related dispute brought to its attention by conflicting employees. What the Board cannot lend its authority to in the context of this case, however, is language which will suggest that a strongly anti-Union employee merely by complaining about mention of the subject of unionization can force curtailment of any such discussion. The evidence makes clear that there already is within the store's employee complement a contingent strongly opposed to the complainant Union, and to appear to grant to such employees effectively a power of "veto" over any conversations they might hear and find distasteful would have the likely effect of nullifying the very rights the respondent appears to be recognizing.

12. The respondent Eaton's accordingly is directed to communicate forthwith in written form to its employees, in a letter standing by itself or otherwise, the following statement on the subject of casual conversation:

As we advised The Ontario Labour Relations Board, the Company does not seek to control on store premises what employees talk about in casual conversations that occur during either working or non-working hours. In other words, employees are at liberty to talk about unions during working or non-working hours on the same basis as they would talk about any other subject, so long as the proper operation of the store is not interfered with.

13. In light of the requirement to now issue a fresh form of Notice to Eaton's pursuant to the direction of the Board in paragraph 84(b) of its original decision, and of the views of our colleague Mr. Grant, the Board hereby substitutes the Appendix attached hereto for the Appendix attached to the original decision of June 12, 1985. The Notice to be delivered to employees will, as a result, more directly parallel the language employed by the Board in paragraph 82 of the decision itself, and thus minimize the possibility of confusion being caused to anyone reading the Board's decision in full.

14. The Board anticipates that there will be no further delay on the part of the respondent Eaton's in carrying out the directions of the Board.

DISSENTING OPINION OF BOARD MEMBER A. GRANT;

1. The Board's original decision went a long way toward accepting the business concerns expressed by Eaton's in the proper functioning of its store and restaurants and, given the apparent lack of business justification on the part of Cadillac Fairview in seeking to limit peaceful solicitation by Union organizers in the particular area of the Mall and at the particular time of day at issue before us, I felt compelled to join in the original decision of the Board in all of its aspects. So long as the Notice to be issued by Eaton's fairly reflects the accommodations found due to Eaton's (and I note that the panel has attempted to respond to the concerns raised before us on reconsideration), I can continue to support that aspect of the decision. I also can see the value in having Eaton's clearly communicate to its large number of employees the policy it articulated before this Board with respect to "casual conversation on its premises. I am not, however, able to join with my colleagues in making the specific finding that Eaton's in its letters of May 9th and July 24th, 1984, was guilty of a violation of the Labour Relations Act. I do not believe, and I do not think the majority finds, that Eaton's in writing those letters was actually turning its mind to the question of "casual conversation". Any misimpression conveyed by those letters, therefore, would have been wholly innocent on Eaton's part, and should not, in my view, be characterized by this Board as a violation of the Labour Relations Act.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Issued by Order of the Ontario Labour Relations Board

WE HAVE ISSIJED THI NOTICE I COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD.

FOLLOWING HEAR INGS BEFORE THE BOARD INTO THE COMPLAINT FILED BY THE RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, THE BOARD RULED THAT OUR POLICY PROHIBITING MASS DISTRIBUTION OF UNION LITERATURE AT ANY TIME AND AT ANY PLACE ON STORE PREMISES HAD TO BE MODIFIED SO AS TO PERMIT SUCH DISTRIBUTION ON AN OCCASIONAL BASIS PRIOR TO STORE OPENING, BOTH ON THE SALES DESKS AND IN BITES ‘N NIBBLES, BY EMPLOYEES NOT YET ON DUTY.

A MORE COMPLETE DISCUSSION OF THE LIMITATIONS ATTACHING TO THIS FORM OF DISTRIBUTION IS SET OUT IN THE DECISION OF THE BOARD ITSELF.

T. EATON COMPANY LIMITED

DATED this 13TH day of NOVEMBER, 1985.