Retail, Wholesale and Department Store Union AFL-CIO-CLC v. T. Eaton Company Limited, 1985 CanLII 989

[1985] OLRB Rep. June 941

0861-84-U Retail, Wholesale and Department Store Union AFL-CIO-CLC Complainant, v. 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: Ja,nes Hayes, Patrick Macklein and Hugh Buchanan for the applicant; Harvey Beresford, Q. C., Nancy Eber and R. A. Hubert for T. Eaton Company Limited; W J. McNaughton for The Cadillac Fairview Corporation Limited and T.E.C. Leaseholds Limited.

DECISION OF THE BOARD; June 12, 1985

I. The Complaint and Facts

1. This is a complaint under section 89 of the Labour Relations Act, alleging that the respondent T. Eaton Company Limited (hereinafter referred to as "Eaton's") and the respondent Cadillac Fairview Corporation Limited (hereinafter referred to as "Cadillac Fairview"), acting on behalf of Eaton's, have violated the section 3 rights of employees of Eaton's, in violation of section 64 and 66 of the Act.

2. The complaint centres around the efforts by the complainant to organize the employees of Eaton's at its "flagship" store in the Toronto Eaton's Centre (hereinafter referred to as "T.E.C."). The unusual feature of this store, apart from its size, is that none of the employee access-points abut public property; rather, all are contained within the private property of the Eaton's Centre Mall itself. There are approximately 3000 retail employees employed by Eaton's in the T. E . C. store, of whom more than half are part-time. The complainant in 1984 enjoyed success in obtaining certification for a number of Eaton's stores in the Toronto area and beyond, and the central thrust of this complaint is that the efforts to achieve a similar success at the Eaton's Centre store have been stymied by the fortuitousness of its physical location. The complainant did have success in organizing the Eaton's Scarborough store, located at one end of the Scarborough Town Centre Mall, but the evidence is that because of the small size of that store, the employees on the in-store organizing committee were able to obtain sufficient cards on their own. No further details of the physical characteristics of that store and Mall are before the Board.

3. Actual ownership of the full property underlying the Eaton's Centre was described to the Board as a complex matter, but for our purposes it is sufficient to note that the head leasehold interest in the full package is held by a company formed for that purpose and called T.E.C. Leaseholds Limited. The ownership of that company is made up as follows:

60% Cadillac Fairview 20% Toronto-Dominion Bank 20% Eaton's

The Board of Directors of T.E.C. Leaseholds Limited shows seven directors from Cadillac Fairview, two from the Toronto-Dominion Bank, and two from Eaton's. Day-to-day management and control of the Mall has been left wholly to Cadillac Fairview, and all of the officers of T.E.C. Leaseholds Limited are from Cadillac Fairview.

4. The quality of presentation in this matter was extremely high, and all counsel recognized that there were relatively few significant factual issues in dispute. The complainant's first success in organizing within the Eaton's chain arose out of a chance encounter at Eaton's Bramalea store around Christmas of 1983. The first meeting with Brampton employees took place on February 2nd, 1984, and eight days later the complainant's first application for certification was before the Board. Fanned by the publicity arising out of the Bramalea success, the organizing campaign quickly spread to other Eaton's stores, and during the spring of 1984 other applications for certification were being brought before the Board. The course of the campaign with respect to the Eaton's Centre store itself was testified to by Carole Currie, a staff organizer for the complainant and one of the principal co-ordinators for this store. Her evidence attempted to recount events many months prior, and was itself protacted over an extended period of hearing days; as a result, her evidence is not entirely clear, or even consistent, with respect to all points, especially early in the campaign. The Board is, however, able to put together from her evidence an account of the campaign that is sufficiently clear insofar as the facts that are material to the issues in this complaint are concerned.

5. The first contact with staff at the Eaton's Centre store took place on March 8, when organizers went through the store and handed out informational material and business cards. From that a meeting took place at the home of one of the employees. There it was decided that the employees present should try to get others by word of mouth to attend a further meeting on March 20th at the Bond Place Hotel. That meeting took place in two shifts, with about 65 people attending in total, and certain pieces of literature explaining employees' rights and who the complainant was were distributed. The meeting also discussed a letter in relatively standard form sent by Eaton's to the employees at all of its stores on March 15, 1984. That letter simply set out Eaton's position as follows:

TO: ALL EMPLOYEES

A union is now attempting to organize some employees. Many of you are wondering and asking why Eaton's has not discussed this with you in our normal way. We think you are entitled to an explanation. Over the years we have tried to keep employees aware about what is taking place. We normally communicate via department meetings, communication meetings, video presentations, written communiques, and so on.

In the present circumstances, the law restricts us in what we may say to you. For example, a union may promise you many things to persuade you to join; however, all employers are prohibited from promising you anything such as better salaries, benefits, or working conditions. We feel this is a bit unfair but on the other hand, what value can you place on union promises which may not be obtainable?

We believe that you are entitled to know about some of the more important things in being represented by a union, which may not be known by you. Accordingly, we are attaching a summary of these for your information.

If you join a union, you are immediately committed to all of the conditions of its constitution.

These place new responsibilities on you and, if you fail to live up to them, the union may discipline you by penalties such as fines. To understand your commitments, you should ask for a copy of the union's constitution, Read it carefully before agreeing to its conditions by signing a card. After all, a union should not expect you to sign a "blank cheque".

Eaton's does not believe that you need a union, particularly if the costs such as dues or possible strikes, are taken into account. However, this is for each individual employee to decide on her! his own. Importantly, no person representing Eaton's or a union is allowed to interfere in your decision. For example, you cannot be threatened with losing your job by signing or refusing to sign a union card. In the final analysis, the choice is yours.

Yours sincerely,

W. Stark,

Company General Manager-Personnel.

6. A number of employees at the Eaton's Centre store volunteered to act as in-house organizers, and were given copies of a notice of a March 26th meeting to hand around at breaks and after work, or to leave in washrooms. Ms. Currie, one of the complainant's co­ordinators for the Eaton's Centre store, acknowledged with respect to documentation generally that it was the complainant's aim to get as much of the literature into the store as possible, and that that literature could and sometimes did become the focus of lively discussion in the store. At the March 26th meeting some 350-500 employees attended, and more volunteers for in-house organizing were obtained. A further meeting was scheduled for April 11th at the Sheraton Centre, and an attempt was made to distribute copies of the notice to employees in areas of the Mall outside the Eaton's store. The distributors were told, however, that they were not permitted to do that, and so removed themselves to the vestibule area of the subway, where they resumed distributing. They were immediately stopped, however, by inspectors for the T. T. C., who told them that soliciting on T. T. C. property was not permitted. No further efforts at distribution were made at that time. On the day of the meeting, however, it was decided that the meeting had to be cancelled because of a Hotel strike, and a group of volunteers from other stores were organized to proceed through the Eaton's Centre store and drop notices of the cancellation. The meeting itself was re-scheduled for April 23rd, and approximately 200 employees attended.

7. It should be noted that certain correspondence was changing hands between Eaton's and the complainant with respect to the ongoing campaign to organize stores of Eaton's in general, and on May 1, 1984, the complainant wrote to Eaton's as follows:

Mr. Robertson

Eaton's Store Manager

Eaton's Centre

Toronto

Dear Sir:

As you are aware, the Retail, Wholesale & Department Store Union, AFL-CIO­CLC is presently involved in an organizing campaign in the place of business known as The Eaton Co.

As you are further aware, this Union has found it necessary as of April 12, 1984 to file with the Labour Relations Board of Ontario a complaint under Section 89 with regards to the actions of one of your subordinate, namely a Mr. Horst Woit.

Further to this, it has come to our attention that other members of your management staff are acting in a manner that we deem to be in contravention of the Labour Relations Act, namely Section 3, 64, 66 and 70.

We understand that you may not be fully aware of the rights of your employees during this time, therefore, we would suggest that you contact your superiors and seek counsel of them. The following are the names of your management personnel who also need instructions in this matter.

Mr. Noel Kerr Ms. Suzanne McLean Mr. George Cloak Mr. Steve Chandler Mr. Steve Wickett Ms. Kim LeCass Mr. Percy Stein Stasha MacTavish

Yours truly,

John Clark,

Staff Representative,

Organizer

Eaton's responded with its letter of May 9th, which reads:

Dear Mr. Clark:

During the last several months you have written some of our Store Managers making reference to your organizing campaign and Section 3 R.S.O. 1970.

While you have drawn this matter to our attention you do not mention the legislation in question. We assume you are referring to R.S.O. 1980 Chapter 228, the current Labour Relations Act for Ontario.

Our Managers are fully aware of the legislation in terms of the rights of employees and employers.

It is important at this time to inform you that union supporters in Stores that are certified, as well as those that are not, continue to harass and apply coercive pressure on employees to join the union. 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. Should this type of behaviour continue, employees will be subject to appropriate disciplinary action.

In addition, a number of your supporters are telling employees that they will be fired if they do not sign a union card. This type of misrepresentation will be corrected by our Managers and they will continue to answer questions and clarify matters that arise in discussions. These types of statements constitute threats and are prohibited by Law.

The Company has always conducted its business in a manner that encourages employees to be courteous to our customers and co-operative and courteous with each other.

These devisive tactics being used by the union supporters are creating an atmosphere of tension and friction which is not in the interest of employees or the Company.

Yours very truly

Ronald A. Hubert

Company Employee

Relations Manager

8. At about the same time, the Toronto Globe & Mail carried an article on the organizing campaign underway at the Eaton's Centre store, and this was made into a leaflet by the complainant. It was mailed, together with notice of a further meeting, to employees for whom addresses were known (being generally, those who had previously applied for membership). That notice read:

Employee

T. Eaton Company

Toronto Eaton Centre

Dear Friend:

On behalf of the Retail, wholesale and Department Store Union, I would like to take this opportunity to congratulate you on the amazing progress that you have made during this campaign in organizing your fellow employees.

Following certification of your bargaining unit, you and your fellow full time, part time, occasional and student employees will have successfully achieved your right to bargain collectively with your employer.

We ask you to encourage your fellow employees to become part of your winning team. Get them involved so that they too, may become participants in their own futures. Invite them to attend their floor by floor union meetings (or any other floor meeting convenient to them) to be held at the:

Bond Place Hotel, 65 Dundas St. East, Picadilly Room, Continuous Meeting from 6:30 p.m. on

Floors 4 and 7, May 22, 1984

Floors 2 and 3, May 24, 1984

Main Floor, May 28, 1984

Two Below, May 29, 1984

One Below, May 30, 1984

Floors 5 & 6 Organizing Committee May 31, 1984

Three Below, May 23, 1984 (at 4:30 p.m.)

Exercise Your Legislated Rights. Become the "U" in your Union.

Yours in Solidarity

Carole M. Currie,

Home 638-5280

Organizer

Retail, Wholesale & Department

Store Union Organizing

Committee

A broader distribution of this material was planned by way of a drop throughout the store, using both employee and non-employee volunteers, but plans were changed following receipt of the following May 18th letter from the company:

Mr. A. Scott

Director

Department Store Organizing Committee

Retail, Wholesale and Department Store Union

Suite 102

15 Gervais Drive

Don Mills, Ontario

M3C 1Y8

Dear Mr. Scott:

In addition to the improper tactics by your representatives in connection with the solicitation of support for the Union on our premises to which we objected in our letter of May 9, 1984, there has been an increase in the dissemination throughout our premises of Union meeting notices by Union representatives or Union supporters. Recent examples of this happening occurred at:

Don Mills - May 9, 1984 Yorkdale - May 11, 1984 Oshawa - May 11, 1984 Sherway - May 16, 1984

The unauthorized entry into our Stores in handing out such leaflets and unauthorized solicitation disrupts our business by interrupting the work of our staff, interfering with customer relationships and causing an unsightly housekeeping problem as the notices are discarded.

Never in our experience have we encountered Union supporters rushing through the Stores, interjecting leaflets in front of customers making a transaction, dropping batches of leaflets at various places, all conducted with considerable dispatch to prevent being identified or stopped.

We expressed our strong disapproval of the actions of your Union and its supporters to your International Representative, Mr. Thomas Collins and your Business Agent, Mr. Robert McKay on May 16, 1984. Despite this, again yesterday such actions occurred at:

Toronto Eaton Centre - May 17, 1984

Toronto Service

Building - May 17, 1984

We take strong exception to the Union's interruption and interference with our Stores' operations. Such activities are not permitted or authorized by the Labour Relations Act. Further, by this letter, we are expressly denying representatives of the Union access or entry into our premises for such purposes. Any further attendance by Union representatives or agents to encourage or solicit Union support including attendance at meetings will be regarded as a violation of the Trespass to Property Act.

The Company, therefore, requires your Union to cease and desist from such activities immediately or the Company will take such steps as we consider appropriate. However, we trust that this will not be required.

Yours very truly

Ronald A. Hubert

Company Employee

Relations Manager

Distribution had already been made in the Store by employee committee members on the 17th of May, but in light of the company's threat to press charges under the Trespass to Property Act, it was decided not to proceed with the non-employee distribution in the Store. At a further meeting with counsel, it was decided to suspend distribution in the store altogether, and to send to Eaton's the following letter:

June 4, 1984

Mr. Ronald A Hubert

Company Employee Relations Manager

Eaton's

I Dundas Street West

Toronto, Ontario

MSB 1C8

Dear Mr. Hubert:

We have your letters dated May 9 and May 18, 1984 for reply.

We deny absolutely your unsubstantiated allegations of misconduct in our organizing campaign. If there are specific examples, please provide us with details and we will investigate.

With respect to your comments as to our communications with your employees, we will continue our campaign within the limits of the law. It is our opinion that your attempted interference with our campaign may well violate the Ontario Labour Relations Act. We are not aware of any situations where the work of your staff or customer relations have been disrupted, nor where unusual housekeeping problems have been created. If there are specific examples, please provide us with details and we will investigate.

There is no question that it would not be as necessary to attend at your business premises for the purpose of communicating with your staff if we had any other means of reaching them. Please, therefore, let us know whether or not the company is prepared to provide us with a complete list of names and addresses of potential bargaining unit employees.

Yours truly,

Bert Scott, Director

Retail, Wholesale &

Department Store

Organizing Committee.

As for the series of meetings previously set for the end of May, further notice of those was passed by word of mouth, and turn-outs ranged from 40 employees downward. At this point the number of employees actually on the in-house "organizing committee" was roughly 20, and that number at one point got as high as 35-40, although the complainant notes that it was unable at any time to obtain representation from every area of the store.

9. Another general organizing meeting was set for June 26th, and it was decided to distribute the notice outside the store doors prior to store opening on June 22nd. There are two main employee entrances to the store. One is through the St. James Mews at the northwest corner of the Mall, and the other, much more popular one, is also on the north side of the store off what is referred to as "two below" in the Mall. That entrance is at one end of the Dundas Mall lobby, in a semi-enclosed area leading to the Eaton's store doors. At the opposite end of the Lobby is the exit from the northbound subway, and half-way across is the escalator coming down from "one below", which contains the exit from the southbound subway. The broad entrance to the store is sealed off by a large sliding glass door, which is kept open the width of a normal doorway to permit employees and other persons having passes to enter prior to the store's opening at 10 a.m. An Eaton's security officer stands at the door to check passes. At about 9:30 in the morning on June 22nd, a group of the complainant's staff organizers stood immediately outside the store door on "two below" and proceeded to distribute notices to the employees entering for work. They were shortly interrupted, however, by security personnel from Cadillac Fairview, advising them that they were on Cadillac Fairview property, and that soliciting and/or distributing leaflets was prohibited. The organizers asked the officers to show them where Cadillac Fairview property ended, and were shown outside to the street-line. Ms. Currie, one of the organizers, said that she thought they had been on Eaton's property when they stationed themselves just outside the store door. The security spokesman (who denies this exchange) is alleged to have responded to the effect that that was indeed Cadillac Fairview property, but that they carried out the wishes of their tenants.

10. The next morning, the organizers were back at the Eaton's Centre, handing out Union shopping bags to customers at each of the entrances to the store. Volunteers also went into the store to shop, carrying and displaying the shopping bags. At some point Eaton's' Personnel Manager, Mr. Simmonds, entered the store through the Mall entrance, and, stopping in front of Ms. Currie, whom he knew, said: "Carole, you know you're not supposed to be doing that". Ms. Currie said: "What?" and Mr. Simmonds responded: "Soliciting". Ms. Currie stated that she was not soliciting, and Mr. Simmonds simply smiled and walked into the store. About five minutes later, a security officer from Cadillac Fairview appeared and told the group: "You'll have to leave - you're not permitted to solicit." The distribution of shopping bags was then continued on the street outside the Centre.

11. Ms. Currie testified that it was imperative that the Union have access to the "two below" entrance for distribution in order to provide employees with information such as their legal rights to organize and notices of meetings. Ms. Currie testified that not all of the employees read the newspaper, and that the cost of newspaper advertising was prohibitive in any event. She acknowledged, however, that she herself was not aware of what the cost of advertising was in the local newspapers, or the TTC billboards, but asserted that more senior officials of the Union had made those inquiries. In the face of the threats of legal action, however, to both employees and non-employees alike, the complainant contented itself at this point with mail-outs to the limited addresses it had through memberships, with a view to having this material passed on to others. (It was apparently not until November or December that the complainant either chose or was able to begin compiling a list of additional addresses from employees' last names and the telephone book.) One of the complainant's July mail-outs contained the following list of in-house organizers, with telephone locals:

YOUR Toronto Eaton Centre*

ORGANIZING COMMITTEE

YOUR TEAM LEADERS

*TEAM COORDINATORS

HARRY BOURNE 5^th FLOOR LOCAL

3652

GIUSEPPE (JOE) 1 BELOW 3985

CARA

*FLOOR LEADERS

CLAIRE ZENHENKO 7^TH FLOOR LOCAL

2917

JACK CHERRY 6^TH 2361

GIL AGNEW 5^TH 4114

JOHN MOFFAT 4^TH 3011

CLARENCE WILKINS 1 BELOW 3544

ALEX PITTIGLIO 2^ND 4121

JULIA LAM MAIN 2086

DAVID McCULLY M1 3023

NANCY KENDREW M2 2697

BRIAN DOTY M3 3652

*ASSISTANTS

GEORGE BEAUREGAURD 5^TH 2782

LINDA POLLACK 2711

BARBARA RAMSAY 3525

PETER KAPS 5^TH 2782

TOM HORNE 5^TH 3140

JAMES RICHMOND 5^TH 4114

ART ESPEY 6^TH 2361

MARK WILSON DISPLAY 3520

IAN FENN DISPLAY 3520

WAYNE BRAY DISPLAY 3520

RITA DEMELO MAIN

MIKE SMITH 4^TH 3011

CATHERINE COURBET M2

SANDRA STEVENS 3^RD 2072

MARIA BRAGANCA MAIN 2086

GEORGE BAKAZIAS KITCHEN 3905

MARIE ESPEY 3905

JOE CASTAGNA M1 3985

ALAN ARDILL 2620

MAURICE MOLELLA FINE FOODS

VINCE QUENET M1

BE A W1NNER

REACH WITH DIGNITY SPEAK UNION!!!

This prompted the following response from management:

July 24, 1984

Mr. A. Scott

Director

Department Store Organizing Committee

Retail Wholesale & Department Store Union

Suite 102

15 Gervais Drive

Don Mills, Ontario

M3C 1Y8

Dear Mr. Scott:

Last week, an undated letter bearing your name and position was addressed to Employees, Toronto Eaton Centre.

The letter identified the Toronto Eaton Centre Organizing Committee by name and telephone locals where these individuals may be contacted.

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.

Yours very truly,

Ronald A. Hubert

Company Employee

Relations Manager

12. Some time in the summer the complainant also began stationing its organizers outside the "two below" doors before store opening to greet employees (and maintain some visibility) as employees came to work. This occurred to some extent at closing time as well. While the evidence of Cadillac Fairview is that the Union supporters tended to greet incoming employees by forming a kind of "funnel" leading to the doors, in all of the daily reports only one incident of a Union organizer actually "obstructing" another pedestrian is recorded. The extent of pedestrian traffic in that area of the Mall at that hour came to be in dispute, and, to avoid the calling of further witnesses, the Board accepted the invitation of the parties to attend with them between 8:30 and 9:30 in the morning in order to take a view of the area. As the Board indicated at the hearing, that view confirmed the evidence of Cadillac Fairview that usage of the 2 subway entrances and the escalator was regular and heavy at that time. However, the view also confirmed the evidence of the complainant that the bulk of that traffic turns away from the Eaton's store at the base of the escalator and makes its way through other access points to its destination on the street or elsewhere in the Mall. Five or six feet from the base of the escalator in the direction of the Eaton's store doors, is a line of concrete pillars or columns, with another 30 to 40 feet of space from that line of columns to the doors themselves. With the assistance of our view, we accept the evidence of the complainant that essentially the only persons making their way across that semi-enclosed area of the Mall leading from the row of columns to the Eaton's store doors at that hour (the store operations open at 10) are persons, presumably in the main employees, on their way into the Eaton's store with their passes. The only other category of pass-holders mentioned in the evidence is Eaton's suppliers, or persons connected with the fast-food concessions in the area inside the store known as Bites 'n Nibbles.

13. In September it was decided to carry out further distributions in the Mall area, taking advantage of the distraction that would be caused by the visit of the Pope. The idea was to commence distributions outside the store doors, and then to move to the TTC doors when asked to leave. It was hoped that the TTC's pre-occupation with the Pope's visit would prevent them from paying attention to the Union's use of their premises. This was done on September 15, 16 and 17, the hand-out including notice of a general meeting called for September 18. That meeting had a turn-out of about 50 people. Meanwhile, the presence of Union organizers outside the store doors at "two below" continued on a daily basis with the Union supporters being joined by employees of an anti-Union group which had sprung up, and which was referred to as "S.T.U.N." (Stop The Union Now). The S.T.U.N. group also had been distributing propaganda of its own in the store during the campaign. By the end of September, Cadillac Fairview indicates that it decided it was time to re-assert its complete control over the Mall area, and through its solicitor wrote to the complainant's solicitor the following letter of September 28th, 1984:

Re: Retail, Wholesale and Department

Store Union and Eaton Centre

As you are aware, for the past while, varying numbers of members of the Union, employees of Eaton's and the Union's professional staff, have been standing immediately adjacent to the Dundas Mall entrance to the Eaton's Store prior to the store opening and "communicating" with persons, presumably Eaton's employees, entering the store premises. In addition, at night following the Eaton's store closing, there have been groups of Union supporters "communicating" with the persons leaving the Eaton's Store at the Dundas Mall exit.

Recently, the Union group has been joined by a number of STUN supporters who likewise "communicate" with persons entering the Eaton's Store at the Dundas Mall entrance prior to the store opening.

This will confirm the telephone notification to your office on Thursday, September 27th, 1984 that our client has decided that commencing on the morning of Friday, September 28th, 1984, it will allow neither the Union supporters nor the STUN supporters to congregate or assemble in the Dundas Mall area prior to the opening of the Eaton's Store or after it closes.

The complainant's practice of stationing its organizers outside the Eaton's doors so as to be able to greet employees as they arrived at and left work was considered to be "congregating", and hence prohibited by Cadillac Fairview security from that point on.

14. Ms. Currie described the complainant's response to Cadillac Fairview's action as "angry", and on the strength of it decided to re-commence distributions both inside and outside the store. Main targets for distribution inside the store had been the two restaurants used by employees in large numbers, being the collection of fast-food outlets known as "Bites 'n Nibbles" just inside the store doors at "two below", and the large cafeteria known as the "Marine Room" on the store's sixth floor. The latter area also has a room adjacent to the main serving area known as the "Flag Room", which has been designated by Eaton's as a place to sit down and eat one's own "bag" lunch. The "Flag Room" is not restricted to Eaton's employees. There had been some earlier restaurant and in-store distributions in the summer, but these had been curtailed following receipt of the company's September 10th letter:

Mr. A. Scott

Director

Department Store Organizing Committee

Retail Wholesale & Department Store Union

Suite 102

15 Gervais Drive

Don Mills, Ontario

M3C 1Y8

Dear Mr. Scott:

On August 30th, 1984, Union supporters again engaged in the distribution of union literature on Company premises in locations such as the Marine Room, Bites and Nibbles, employee lockers and cash register desks in the Toronto Eaton Centre.

We have repeatedly asked the Union to cease from such activities. The requirement to clean up discarded leaflets and those left on tables is an added housekeeping task and an unnecessary distraction to both customers and employees. We have advised you in the past that we will not permit solicitation for union membership on Company premises.

Those employees who we are aware were involved in the process of distributing union literature on the premises were interviewed and each claimed a lack of awareness of the Company's position. They have been informed of the Company's position and that further actions of this kind will result in corrective discipline being taken.

Yours very truly,

Ronald A. Hubert

Company Employee

Relations Manager

15. On the morning of October 10th, the complainant's supporters attempted a distribution outside the store doors at "two below", but were evicted by Cadillac Fairview personnel. On the morning of October 11th, it was arranged to have non-employee organizers distribute leaflets outside the store doors at "two below", and to have an employee, Trish Willis, distribute additional leaflets to persons sitting at the tables in Bites 'n Nibbles. A reporter for the Globe & Mail was also present. Eaton's' evidence is that even at that hour, i.e. before store opening, Bites 'n Nibbles is used for coffee not only by employees reporting for work, but by Mall cleaners, retail suppliers and concession employees with passes, and even Eaton's management (whether to conduct informal meetings or otherwise). Ms. Willis began her distribution of leaflets, placing copies at the various tables, but was interrupted by Eaton's' Personnel Manager, Mr. Simmonds. Subsequently in the Personnel Manager's officer, Ms. Willis was politely told that such conduct was prohibited, and that she was not to do it again.

16. On October 27th, the organizers again attended in the Mall area for a distribution, this time accompanied by a City alderman, Jack Layton. Security personnel from Cadillac Fairview attended at the scene, but after a conversation with Mr. Layton, left. Eaton's itself then responded to the situation by opening its doors wider, thus spreading the stream of employees entering for work. The Union organizers continued to attend in the mornings thereafter for the purpose of saying "good morning" to employees, and upon refusing Cadillac Fairview's request to leave, were told they could stay as long as they were not distributing leaflets, or impeding traffic. The only additional development, up to the point where it was agreed to close off the evidence, was that on the morning of November 9th, the Union organizers did proceed to carry out a distribution, and refused to stop when asked by Cadillac Fairview. Cadillac Fairview took no further action to prevent them from continuing.

17. The position of Cadillac Fairview with respect to authorized use of the Mall was succinctly set out in the course of these proceedings in a letter from its counsel, Mr. McNaughton, to the complainant's counsel, Mr. Hayes:

This will confirm that TEC. Leaseholds Limited is the body which holds, in one form or another, the leasehold interest in all of the land comprising the Toronto Eaton Centre Complex. Eaton's is a tenant of the property as are all of the other stores in the Centre and occupants of the various office towers. The Cadillac Fairview Corporation Limited manages the property on behalf of TEC. Leaseholds Limited. The latter has no day-to-day involvement in the operations. All of the day-to-day operations are carried on by The Cadillac Fairview Corporation Limited. The Cadillac Fairview Corporation Limited is the employer of the security staff in the Centre.

Cadillac Fairview maintains a general no solicitation policy in all of the shopping centres which it manages. There is no written policy as to who may or may not be allowed to solicit or distribute material or use the Toronto Eaton Centre in particular. Generally, organizations of a charitable, non-profit or public service oriented nature may be granted permission to use the Complex. In addition, other functions directly related to the commercial activities of the Complex or its tenants may be allowed.

The permitted non-commercial activities can be divided into roughly five groups. Firstly, direct solicitation such as by the Salvation Army, organizations conducting tag-days or the sale of daffodils for the Canadian Cancer Society. Secondly, the use of space by groups such as the Canadian Opera Company or the Toronto Symphony Dream Auction. Thirdly, the use of the community service booths located on Mall Level I, adjacent to the fountain and in the South Court, from Monday to Friday, by organizations such as the City of Toronto Health Department for Health Week or Dental Week. Fourthly, the use of the South Court or Trinity Way area for public information displays by such organizations as the Ontario Ski Council, the Metropolitan Toronto and Region Conservation Authority, and the Canadian Cystic Fibrosis Foundation. Finally, by agreement with a tenant, Contemporary Research Centre Limited, the tenant may conduct on-mall surveys at specific locations and times.

All usage of the Mall is directly controlled by Cadillac Fairview. All tenants are prohibited from soliciting, canvassing or peddling in or about the Complex. Should tenants or others attempt to distribute hand bills or solicit, they will be requested to cease their solicitation or distribution or literature if observed by any of the Centre's security staff.

Usage of the Mall by persons doing filming either commercially, or on behalf of tenants is also regulated.

Requests for use of the Centre are made to the Management Office in the Centre. Generally, if the organization meets the criteria as set out above, their requests will be considered favourably. All organizations using the Community Service Booths complete a Space Agreement, acknowledge the rules and regulations as set out by Cadillac Fairview, provide proof of insurance if requested, and sign a release. All literature to be distributed must receive prior approval and be submitted at the time space is requested.

Organizations engaging in tag-days, if granted permission, may only solicit at specified locations (the main entrances) and in limited numbers (generally 2) at each entrance, for specified times and be properly identified.

Cadillac Fairview also co-ordinates the use of the Trinity Way area by performing groups or artists and the staging of fashion shows and related promotional activities.

It is estimated that there are approximately one dozen calls a week from people asking to use the Centre. Generally speaking, only one organization will be allowed to solicit at any one time on a first come first served basis.

I enclose herewith:

(1) Toronto Eaton Centre - Special Events/Displays Booking Form.

(2) Application for use of Toronto Eaton Centre, Community Information Booth with rules and regulations on the reverse side.

(3) (i) Display space Agreement.

(ii) Eaton Centre Display Rules and Regulations.

(4) (i) Application for Tag Day in the Toronto Eaton Centre.

(ii) Rules Governing Tag Days at the Toronto Eaton Centre. (iii) The Eaton Centre Directory.

(5) Eaton Centre Location Fees Rate Sheet.

(6) Releases:

(i) Filming.

(ii) Performing and/or Appearance.

(iii) Performing.

(iv) Exhibiting.

The witnesses of Cadillac Fairview explained the importance to it of maintaining tight control over the Mall because of the appeal that the Mall area has to various and sundry special-interest groups as a major centre of pedestrian traffic in the City. The exceptions they make, it was explained, are made solely on the basis of what Cadillac Fairview feels enhances the commercial purpose of the Mall, or enhances Cadillac Fairview's image in the City as a 'good corporate citizen". The community service booths appear to the Board to be available to the broadest category of users, but they are located in an area divorced from main traffic patterns (especially for Eaton's employees) and the complainant has indicated no desire to avail itself of them. The Regional Manager responsible for the Mall testified, in any event, that the complainant would not have been granted permission to use these booths if it had applied. While the evidence indicates that exceptions to Cadillac Fairview's stated policy on occasion do occur in the Mall, we are not prepared to conclude in this case that these exceptions occurred with Cadillac Fairview's knowledge and approval.

18. Cadillac Fairview's witnesses testified that the manner in which they operate the Mall rests within their sole judgment alone. While a call from any tenant will be responded to, in terms of an officer attending at the scene, it is the officer or his Cadillac Fairview superior, they indicate, who decides whether or not to take action. Cadillac Fairview produced a summary of the many occasions from April to November that its officers either encountered Union activists outside the Eaton's store in the Mall, or were called by Eaton's management, normally through the store's Loss Prevention Officers, with respect to same. In the majority of those instances, the reports show that the security officers did no more than attend and observe the situation in question, and took no action, either because no prohibited activities were being engaged in, or because they ceased as soon as the security officers appeared. The officer's report for July 19, 1984, for example, states:

At 2105 hours, our security office received a call from Eaton's claiming that there were union representatives on the first level of Dundas Mall. I reached this location at 2113 hours and observed four gentlemen standing about twenty feet east of the Eaton's entrance. One gentleman had papers under his arm.

They were not handing out any paraphenalia. They were not impeding or obstructing traffic or coercing anyone into a conversation.

I observed the situation until 2135 hours, and by then, two of the gentlemen had left and the other two had moved farther away from the area.

The initial call was handled by S/S MacKeigan who reports that Eaton's did not inform him that the persons outside their door were in fact union activists. He actually had to ask if this was the case.

When I was at Dundas, Eaton's called on two more occasions asking why we were not removing them. I had no contact with Eaton's.

In addition, at the end of October, Cadillac Fairview testified that it made a decision not to challenge the Union organizers in any way that might create a "media event", and possibly discourage Christmas shoppers.

19. As for Eaton's own "solicitation" policy, Mr. Ron Hubert, Employee Relations Manager, gave evidence that Eaton's policy in documentary form was last revised in 1977, although not materially changed from what had existed for years, and presently states:

WORK REGULATIONS - SOLICITATION

1. BY EMPLOYEES

Solicitation or personal contributions for flowers or gifts from staff members on a special occasion is permitted within a department if approval is obtained from department management. As such appeals may be annoying or embarrassing to certain staff members, the Company expects that they will be kept to a minimum and that contributions will be solicited on a voluntary basis at all times.

Solicitation of employees for the sale of tickets, articles, etc., or circularizing employees is prohibited without the expressed authorization of department management.

2. BY NON-EMPLOYEES

The Company does not permit the solicitation of employees by non-employees on its premises, for any purpose, during working hours.

For the purpose of this statement of policy, the term "solicitation of employees" is defined to include any of the following actions by outside agents, salesmen or other persons:

(a) selling or distributing articles of any kind

(b) canvassing or circularizing employees

(c) requesting or appealing for donations, contributions, memberships etc.

3. CHARITABLE

Company wide solicitation of funds for charitable purposes is limited to national

campaigns, community fund drives and recognized charities and organizations.

The Company co-operates in such appeals for funds by providing opportunity for employees in many of its places of business to contribute through the Employee's Charitable Trust Fund.

Units which do not participate in the formal plan, make collections in such manner and on such occasions as are appropriate to the Unit concerned.

4. OTHER

Solicitation for any other cause or organization is not permitted except in the case of a special appeal which may be given Area personnel Management approval.

Mr. Hubert testified that the policy, although followed, has never actually been published for employees in written form. In brief, Mr. Hubert explained that its purpose is to eliminate any distractions not conducive to the store being a pleasant place for customers to shop, or to the maintenance of the employees' full attention to the customer. For that reason even charitable appeals are limited in most places to formal payroll deductions. On the evidence the Board accepts that the degree of "solicitation" which does from time to time go on within the store is generally either outside the knowledge of management or confined within small groups of willing participants, for example in a pool for the purchase of lottery tickets. Ideally Eaton's indicates that it would like to remove such contentious subjects as unionization from the selling-floors of the store entirely, but it recognizes that it is not realistic to attempt to control what employees choose to talk about in casual conversation. Whether or not any contrary impression might have been created by the generality of any of its earlier written statements, Eaton's has stated clearly on the record in these proceedings that it does not seek to control that kind of oral communication or solicitation anywhere in its store. And the complainant's witness, Trish Willis, freely admitted in cross-examination that such conversations have in fact been taking place in the store on a regular basis, and that she was pretty well aware of how everyone in her department (of 19) felt on the issue of unionization. Mr. Hubert testified that Eaton's' only concern is that such oral communication not become an irritant to other employees, or be allowed generally to interfere with employees carrying out their proper duties in the store. What is controlled is the distribution of literature in any area of the store, on the basis that it creates not only a litter problem, but can have a continuing presence in the store to the distraction or the annoyance of customers or employees alike. Mr. Hubert testified that there are no exceptions to this "no-distribution" rule, but that no precise definition of what constitutes a "distribution" has ever been formulated. For one employee to hand another a card, he testified for example, would not be a "distribution", nor would a casual exchange of literature within an informal group at coffee. As for the use of the restaurants generally, Mr. Hubert also made it clear that Eaton's has no objection to non-employee organizers using the restaurants for the purpose for which they were intended, and in the course of such use discussing the benefits of unionism, with the employee or employees whom they may have arranged to meet, or otherwise soliciting their membership. However, to transform the restaurant into a full-scale place for carrying on the business of the Union by, for example, table-hopping, or handing out literature in a general way, is strictly prohibited.

II. ARGUMENT

The Complainant

20. It is the position of the complainant trade union that the aforesaid actions of both the respondent Eaton's and the respondent Cadillac Fairview constitute unlawful interference with the rights guaranteed to employees under section 3 of the Labour Relations Act, and as such are continuing violations of both section 64 and 66 of the Act. Those sections provide:

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

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

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

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

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

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

21. With respect to the respondent Eaton's and the rights of its own employees, the complainant asserts that the rights envisaged by section 3 include, inter alia, the right of employees "to converse with other employees regarding union organization, to solicit other employees to become union members, to attempt to persuade other employees to become union members, to sign up employee union members, and to provide employees with leaflets informative of the union campaign", in and about the workplace free of undue employer interference. Any employer interference with those rights outside of the employee's working time, therefore, is prima facie a violation of sections 64 and 66, and one that, on the present facts, cannot be justified by the operational needs of the employer. It is submitted that Eaton's has, in any event, denied to itself the right to insist upon a broad no-solicitation or no-distribution rule, since it has itself permitted frequent liberties with that rule in the past, with respect to activities other than those pertaining to the organizational campaign of a trade union.

22. With respect to the "no-solicitation" rule of Eaton's, the complainant submits that that has been applied by Eaton's prior to these proceedings in an overly broad manner, so as to recognize no distinction between working and non-working time. The complainant points to both section 71 of the Act and the decision of the Board in Adams Mine, [1982] OLRB Rep. Dec. 1767, as making "working" versus "non-working" time the critical distinction. The complainant further submits that the American Courts' "department-store exception" to the freedom to solicit on non-working time is inappropriate to import into this jurisdiction, and has, in any event, come to be strictly confined to "customer and sales areas" of the floor, and has been held not to apply in public restaurants located within the store. The complainant similarly argues that no justification in the present case exists for Eaton's broad "no ­distribution" rule, applying as it does, once again, to non-selling areas of the store, such as the restaurants, and at times when employees have not yet begun to work, or are on their break. With respect to the "Trish Willis" incident, in particular, the complainant submits that this occurred at a time when the restaurant had not yet been opened to the public, and was effectively an "employee cafeteria".

23. With respect to Eaton's and/or Cadillac Fairview and the question of non-employee rights, the cornerstone of the complainant's argument is that the rights contemplated by section 3 of the Act include the right to receive and have access to relevant information, and that the employee's place of work is the most natural and appropriate location for such access. Any act of the employer or his agent, therefore, which unnecessarily limits this access is in violation, once again, of sections 64 and 66 of the Act. And the Board ought to conclude, the complainant submits, that in light of the relationship present here, Cadillac Fairview, must be seen to be a "person acting on behalf of' the employer Eaton's. The complainant further submits that the distinction drawn elsewhere between "employee" and "non-employee" organizers is one without substance, and that both groups ought to be placed on the same footing when it comes to recognizing the right of employees to unobtrusive access to information on private property. The complainant accordingly urges the Board to reject the employee/non-employee distinction which the United States Supreme Court drew in Babcock v. Wilcox, (1956) 351 U.S. 105, as well as the Board's own obiter in the Adams Mine decision, referred to supra, preferring rather the simple test in Republic Aviation, (1944) 324 U.S. 793, being: "Does it interfere?". And, the complainant adds, even if the Board were to recognize the validity of the former distinction with respect to private "industrial" workplaces, it ought at least to reject it when dealing with a "quasi-public" setting such as a retail store and shopping mall.

24. Finally, and in the further alternative on this point, the Union argues that it has met the onus of showing that no other effective means of communicating with the employees are reasonably available, and that even on the basis of the Babcock v. Wilcox test itself, the complainant is entitled to the access it seeks. The complainant, in support of this, relies on a number of facts in this case, stated by it as follows:

(i) Eatons employees live in all sections of, and in some cases, beyond the boundaries of the vast Metropolitan Toronto area;

(ii) the majority of Eatons employees are women, many of whom would not be listed in the telephone directories;

(iii) the majority of Eatons employees travel to work by subway and, because of the geography of the T.E.C., never set foot on public property at any location within miles of the workplace;

(iv) the majority of Eatons employees work part-time and shift times can and do vary so that employees in some locations may rarely if ever meet;

(v) for security reasons, Eatons management prohibits employees from attending in other departments and on floors other than their own when the store is not open to the public;

(vi) use of internal Eatons phones for non-business purposes is prohibited;

(vii) Eatons has chosen on occasion to communicate on union questions directly to all employees by sending letters to their homes;

(viii) Eatons employs approximately three thousand retail sales persons at the T.E.C. eligible for union organization and more at peak periods who are spread over the many floors at the T.E.C.;

(ix) coffee breaks are a maximum of 15 minutes in duration and taken over the course of a shift as customer demand permits; many employees do not leave their departments for such breaks;

(x) Eatons employees most commonly take lunch breaks at in-store

restaurants and are encouraged to do so by virtue of an employee discount policy;

(xi) there are no known outside public restaurants within the T.E.C. where large groups of Eatons employees are known to congregate;

(xii) the Union has requested and been denied a list of employee names and addresses;

(xiii) millions of customers and tourists visit the T.E.C. every year.

25. The complainant further submits that the respondent Cadillac Fairview has a practice of permitting a broad range of soliciting activities on its mall premises, and ought not to be permitted to assert an unfettered right to decide "in its sole discretion" whether to deny such access to the trade union.

26. The complainant acknowledges that the question of access for non-employees is at least to some extent already dealt with in section 11 of the Labour Relations Act, but argues that that should not be taken by the Legislature to have been intended as a "complete code" on the subject. Section 11 provides:

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

In addition, the complainant argues that even if section 11 is to be read by the Board, as it did in Adams Mine, supra, as a complete code on the right of access issue, that section deals only with access to property of the employer, and ought not be read as a code extending to access to the property of someone other than the employer.

27. With respect to the Trespass to Property Act, which provides:

2.-(l) Every person who is not acting under a right or authority conferred by law and who,

(a) without the express permission of the occupier, the proof of which rests on the defendant,

(i) enters on premises when entry is prohibited under this Act, or

(ii) engaged in an activity on premises when the activity is prohibited under this Act; or

(b) does not leave the premises immediately after he is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $1,000,

the complainant submits that Union organizers of either the employee or non-employee variety are here "acting under a right or authority conferred by law", specifically, section 3 of the Labour Relations Act, as confirmed by section 64 of the same Act.

28. Finally, the complainant argues that to the extent that the respondent Cadillac Fairview can find refuge in the provisions of the Trespass to Property Act, that Act is, by virtue of the Canadian Charter of Rights and Freedoms, to an extent unconstitutional, in that it places limits upon freedom of expression and of association which cannot be justified in the present context. The complainant points to the absence of an express property protection in the Charter as evidence of a legislative intent that fundamental freedoms, including freedom of expression and association, "occupy a preferred position over property rights in the Canadian polity". At the very least, the complainant submits, the approach of adjudicators in interpreting section 3 rights ought to be informed by the freedoms Parliament saw fit to expressly provide in the Charter.

29. On the basis of these submissions, the complainant seeks the following relief:

30. Against the respondent T. Eaton Company Limited

(a) Declaration that the respondent Eatons has violated sections 64 and

66 of the Labour Relations Act.

(b) Direction that the respondent Eatons cease and desist from its interference with the exercise of rights under the Labour Relations Act by individuals and the complainant trade union.

(c) Direction that the respondent Eatons:

(i) retract the broad no-solicitation rule contained in its letter addressed to the complainant trade union dated May 18, 1984,

and repeated thereafter;

(ii) permit lawful union activity by employees of Eatons on non-working time within Eatons store premises including the

distribution of union literature;

(iii) permit peaceful access by non-employee representatives of the complainant trade union, to public areas of Eatons premises including public restaurants and areas most proximate to normal employee entrances for the purpose of union solicitation which solicitation may include the distribution of union literature;

(iv) distribute the standard Labour Relations Board "Notice to Employees" in the usual form to all potential bargaining unit employees or post such a notice on all employee bulletin boards in the premises of Eatons;

(v) direction that the respondent Eatons provide to the complainant trade union a list of all potential bargaining unit employees which list shall include addresses, and where available, telephone numbers of such persons.

2. Against the respondent The Cadillac Fairview Corporation Limited

(a) Declaration that the respondent has violated sections 64 and 66 of the Labour Relations Act.

(b) Direction that the respondent cease and desist from interference with the exercise of rights under the Labour Relations Act by individuals and the complainant trade union.

(c) Direction that the respondent permit peaceful access by persons to areas of the Eaton Centre proximate to the Eaton's store under the direction and control of the respondent for the purpose of encouraging support for the complainant union or soliciting membership in the complainant union.

30. More specifically, it was the position of the complainant union in final argument that employees on the Eaton's selling-floor must be permitted, should they so desire, to discuss matters pertaining to the trade union with one another in casual conversation as well as to distribute documents or pieces of literature one to the other, within their own small groups, whether on non-working time or on working time, so long as the operation of the store is not interfered with. Employees, the complainant asserts, should also have the right, on a broader scale, to make general distributions of literature throughout the store before store opening, as well as in the "public" eating areas of the store. With respect to non-employees, the complainant submits that the opportunity for professional organizers to have face-to-face contact with employees is essential to the campaign as well, and the complainant seeks the right of non-employee organizers to attend at the employee-entrance to the store, whether just inside or just outside the door. This the complainant indicates, would be for the purpose of handing out literature, or of being available to talk to any employee who so desired, as in the case of a street-corner outside the ordinary plant.

31. Apart from these remedial requests, the complainant also asks the Board to strike down its own "6-month" and "12-month" card-solicitation rules, on the ground that they are arbitrary and unjustifiable restraints on the freedom of association guaranteed by the Charter. In the alternative, the complainant asks that the 6-month and 12-month periods not begin to run against it until the respondents have been made to cease their unlawful interference with the complainant's campaign.

II. Eaton's

32. It is the position of the respondent Eaton's that Adams Mine, supra, represented a deliberate and careful attempt by the Board to analyze the issue of trade union rights on company property, and now sets out the code for this jurisdiction. That "code" is summarized at paragraph 22 of the decision in the following terms:

From this analysis we arrive at the following general principles:

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

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

Apart from section 71, Eaton's submits, the Act is essentially silent on where the line is to be drawn between section 3 rights and the employer's rights of property and management:

Adams Mine, it submits, was the Board's attempt to strike that balance. Whether in a given case a sufficient justification has been made out to rebut the normal presumptions is a question of fact, and on the facts at hand, the respondent submits, no violation of the Act has been made out.

33. Eaton's points out, first of all, that the written "No solicitation" policy never was placed before any of the employees of the store, and that the "policy" so far as they are concerned, could only be gleaned from the manner and incidents in which it was actually applied. Eaton's maintains that it never was meant to apply to oral solicitation in non-working time, and that the only requirement Eaton's makes with respect to casual conversation during working time is that the operation of the business not be interfered with.

34. With respect to distribution of literature, however, the company takes a much stronger position. As an employer in the retail business, Eaton's submits, it can justify a ban on distribution on its premises anywhere and at any time. In support of this argument Eaton's points out that, apart from the litter problem, it has customers of all descriptions and beliefs, and ought not to have to run the risk of offending any of them with circulating material.

Written communication differs from oral communication, Eaton's maintains, in that it has a permanent element to it, and continues to speak if left in the store, in the way that a momentary oral communication does not. Eaton's points out that the case presently before the Board does not include any examples of the kind of limited-scale distribution argued for by the complainant, so that neither Eaton's nor the Board is in a position to assess the propriety of that kind of an exchange, or its apparent interference with the business. Eaton's itself, counsel points out, has yet to reach the point where it can define the outer limits of what is a "distribution", within the meaning of its "no-distribution" rule.

35. Broad-scale distribution, on the other hand, is a problem in Eaton's' submission even before store opening, because if it is not cleaned up, it is there to confront the customer when the store does open. In support of its submission Eaton's further points to the acknowledgment by Carole Currie in her testimony that the Union expects employees to read even the "Please take home" literature while at work, and is content with the prospect of an employee paying more attention to the literature than to a customer. This, Eaton's argues, is precisely its concern, and arises whether the literature is gotten into the employees' hands by leaving it on the sales desk, or handing it out at the store entrance, or during pre-store or break time in Bites 'n Nibbles. And the effect of the presence of such literature on the staff's performance, Eaton's submits, is much more difficult to monitor in a retail setting than in a factory. As for the customer reaction that the literature may prompt, it makes no difference to Eaton's whether the customer is pro or con: the very question of unionizing the store's employees is of a controversial and distracting nature, and the sales-floor, where customers have been invited to shop, is simply not the place for such a discussion to be prompted.

36. With respect to its public restaurants, Eaton's points out that these still are an aspect of its retail business, and maintains its right to prohibit their use for any purpose other than that for which they were intended. If employees or even non-employee organizers wish to meet and discuss unionization over lunch or coffee, Eaton's has no objection. But Eaton's is not prepared to see its clientelle, be they members of the public or its own staff, subjected to any form of unsolicited overtures on behalf of the Union, whether by way of "table-hopping", or of a general distribution of literature. Unless, Eaton's submits, it can insulate its restaurant customers from this kind of activity, like any of the other 67 restaurants in the Mall area, its customers will go to those other restaurants. And this concern holds true even ~n, e.g., Bites 'n Nibbles before store opening, when the bulk of the customers are Eaton's own employees. Unlike the case of an isolated factory, Eaton's points out, there are a plethora of restaurants in the immediate area available for the employees' use, and the provision of an "employee cafeteria" is unnecessary: if Eaton's could not operate the restaurants that it does as additional ''profit—centres'' for the store, it would have no reason to operate them at all. Finally, on this point, Eaton's points out that restaurants such as Bites 'n Nibbles are frequented by managers as well, and that this therefore is an inappropriate place to be putting employees on the spot by thrusting a piece of literature in their hand.

37. In support of its position, Eaton's, like the complainant, draws the Board's attention to a number of Canadian and American cases, which will be analyzed in detail below. Also like the complainant, however, Eaton's cautions the Board as to the inappropriateness of the American jurisprudence as a whole, with its different legal foundations from the present jurisdiction, and points to them only to the extent they may suggest common-sense approaches to specific problems now before the Board. As with Adams Mine, supra, and section 11 of the Act, Eaton's submits that the leading American case of N.L.R.B. v. Babcock & Wilcox, (1956) 351 U.S. 556, represents a sensible balance between the rights of property-owners and the rights of employees to organize, drawing the line between employee and non-employee organizers. The normal "interference with business" tests, Eaton's submits, as in Republic Aviation v. N.L.R.B., (1944) 324 U.S. 793, is based on an employer's ability as manager to control the conduct of his employees by way of discipline, whereas no such control exists between the property-owner and a "stranger". Beyond that, Eaton's points to the fundamental differences in the American and Ontario legal approaches to "employer free speech" and to "votes in every case" as a possible basis for, if anything, a broader approach to access being taken in the United States than in this jurisdiction. And finally, even if the Board were to adopt the America position, Eaton's submits that the complainant has failed to discharge the onus under U.S. cases like Babcock & Wilcox and Sabine Towing, (1979) 101 L.R.R.M. 2956, of demonstrating that no other reasonable means exist for making effective contact with the Eaton's employees at T.E.C..

38. In support of this last submission, Eaton's points to a number of facts before the Board, such as the number of employees already signed up, and for whom the complainant has names and addresses through which it can, and has, circulated its written message. In addition Eaton's cites the numbers, up to 500, in attendance at meetings in March and April of last year, the number of active organizers working openly on the "organizing committee" throughout the store, the regular and free discussion of Union "pro's" and "con's" in the store testified to by Trish Willis, the complainant's failure generally to set up meetings since the ones held in the spring, and its failure to utilize available methods of media advertising, as the evidence shows the complainant did in Winnipeg, to that end. Eaton's further points to the complainant's belated attempts as of November or December to compile lists of names and telephone numbers as evidence either of the complainant's lack of effort, or of the lack of interest on the part of employees, after the initial spurt, of carrying on further discussions with the complainant. By the fall, Eaton's argues, the bloom was clearly off the rose, and the "bandwagon" effect caused by some of the complainant's early successes, particularly at Bramalea, had run its course. In short, Eaton's makes the point that it is not the problems of "access" urged upon the Board in this complaint which account for the complainant's present lack of momentum in attempting to organize the employees of the T.E.C..

39. With respect to the alleged impact of the Charter of Rights, Eaton's submits that the complainant's argument in any of its forms requires the Board to find that the section 2 "freedoms" override the Trespass to Property Act, and no authority presently exists for the Board to make such a ruling. And in any event, the source of the proprietary rights here involved is not the Trespass to Property Act, but the common law, and the prevalent view of commentators is that the Charter has no application to private rights at common-law (Canada Act 1982 Annotated, Carswell 1982; Swinton, Application of the Canadian Charter of Rights and Freedoms; Whyte, The Charter of Rights and Discrimination in the Private Sector). Eaton's also argues that the Board is not a "court of competent jurisdiction", within the meaning of section 24 of the Charter, and accordingly has no jurisdiction to apply the Charter in any event. Further, Eaton's argues, the present weight of judicial opinion would not give to the "freedom of association" in section 2 so expansive a meaning as to encompass the question of "means" at issue here. And finally, section 1 of the Charter in any event would require the kind of balancing that has already been done in this jurisdiction, and Eaton's submits that, on the facts, any limits which it has placed on its employees' "freedom of association" are reasonable and justifiable.

Cadillac Fairview

40. The respondent Cadillac Fairview denies, as does Eaton's, that Cadillac Fairview is a "person acting on behalf of" Eaton's. Cadillac Fairview asserts that it has its own com­mercial interest to guide it in its management of the Mall, and it has a non-discriminatory policy of permitting only those uses which, in its own view, are consistent with that interest. Cadillac Fairview points out that Eaton's is no more than a minority shareholder in T.E.C. Leaseholds Limited (the "landlord") and submits that it is, from Cadillac Fairview's point of view, "just another tenant". As evidence of the fact that Cadillac Fairview ultimately exercises its own independent judgment, Cadillac Fairview points to the fact that it does not always choose to take action against Union supporters when summoned by Eaton's, and that it decided from late October on to no longer challenge the Union in its activities.

41. Cadillac Fairview explains its allowances granted to charitable or community orga­nizations on the basis that they are not repetitive in the way the Union seeks, and that they are the type of non-profit activities which enhance its image as a "good corporate citizen". But, Cadillac Fairview emphasizes, under the present state of the law, as expressed by R. v. Peters (1970) 1970 CanLII 508 (ON CA), 16 D.L.R. (3d) 143 (C.A.); 1971 CanLII 1141 (SCC), 17 D.L.R. (3d) 128 (S.C.0), and Harrison v. Carswell, (1975) 1975 CanLII 160 (SCC), 62 D.L.R. (3d) 68 (S.C.C.), it is not required to demonstrate the reasonableness of this distinction: its property is its to do with as it feels its interest dictates. Cadillac Fair-view points out that it is not even the "employer" against whom a section 11 access order might run, and submits that it surely ought not to be placed in a worse position with respect to the right to control its property than the actual employer of the employees in question would be. Cadillac Fairview points out that the majority in Harrison felt it was not the role of the Supreme Court of Canada to carry out the kind of social balancing necessary to compromise age-old common-law property rights, and that the Ontario Legislature, as well, rejected just such an amendment to the Trespass to Property Act as recently as 1980.

42. With respect to the Charter, the respondent Cadillac Fairview provided the Board with a good deal of material discussing it, but in general terms agreed with all of the positions put forward by the respondent Eaton's. Cadillac Fairview also noted that a number of cases are now making their way to the Supreme Court of Canada, and that Canadians in general are anxiously looking to that Court for further guidance as to the scope and application of the recently-proclaimed Charter.

III. DECISION

43. It might be noted at the outset, that even after the attention which the complainant's activities at the Eaton Centre garnered in the media, and the company's own mailings to its employees about the union campaign in general, the complainant's chief witness and organizer, Carol Currie, clung steadfastly to her claim that not all of the employees at the Eaton Centre would have been aware of the complainant's interest in organizing them. In light as well of the kind of on-going floor discussion testified to by Trish Willis, that view is difficult to accept. On the other hand, the Board does not intend to base its decision on conjecture as to why the complainant's organizing campaign has not been more successful to date. Either the com­plainant is entitled to the access rights it seeks or it is not, although in making that assessment in this case, to the extent that commercial and property rights of others are necessarily being encroached upon, the extent to which the normal means of communication have been available is clearly not irrelevant. Indeed, it is the impracticability or unavailability of the "normal" means of solicitation which underlies the complainant's major claims in these proceedings. Dealing, then, with the parties' various submissions, we will deal first with the complainant's argument on the Charter, recognizing that the complainant faces a number of significant hur­dles in relying upon the Charter for the relief it seeks in this complaint.

44. Of the arguments made by the respondents, the least compelling is the suggestion that the Board does not have the power to grant relief at all on the basis of the Charter, because it is not, in the language of section 24 of the Charter, a "court of competent juris­diction". Notwithstanding section 24, section 52(1) provides:

"52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."

And section 32(1) provides:

"32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province."

It is difficult, therefore, to see how the Board or any other agency could ignore the various provisions of the Charter when called upon to apply or otherwise consider the effect of any piece of legislation in the ordinary course of its jurisdiction. See, e.g., the views already expressed on this point by the Board in Third Dimension Manufacturing, [1983] OLRB Rep. Feb. 261. This view would appear to have been confirmed by the Supreme Court of Canada in its recently-released decision on Alberta's Lord ~ Day Act (Big M Drug Mart Ltd., judgment rendered April 24, 1985), where, at page 83, the Chief Justice wrote:

"If a court or tribunal finds any statute to be inconsistent with the Constitution, the overriding effect of the Charter, 5.52(1), is to give the Court not only the power, but the duty, to regard the inconsistent statute, to the extent of the inconsistency, as being no longer 'of force or effect'."

[emphasis added]

The failure to repeat the words 'or tribunal' in line 5 would not appear to have been deliberate.

45. There is, however, a real question at this time as to how broadly the section 2 guarantee of "freedom of association", in particular, is to be interpreted. In Broadway Manor Nursing Home, (1983), 1983 CanLII 1928 (ON HCJ), 4 D.L.R. (4th) 231, 44 O.R. (2d) 392, the Ontario Divisional Court decided that to be meaningful, the "freedom of association" guarantee must be read as extending to a guarantee of the right to collectively bargain, and of the ability to strike to enforce that right. That view was roundly rejected by the British Columbia Court of Appeal (the Ontario Court of Appeal chose to express no opinion on it in reversing Broadway Manor on other grounds) in Dolphin Delivery Ltd. (1984) 1984 CanLII 750 (BC CA), 10 D.L.R. (4th) 198, and again by the Federal Court of Appeal in Public Service Alliance of Canada (1984), 1984 CanLII 5300 (FCA), 11 D.L.R. (4th) 387. The Court in the latter case wrote, at page 391:

"The appellant relied heavily on the 'living tree' metaphor ([Re Section 24 of the B.N.A. Act; Edwards v. A.-G. Can., 19301 1929 CanLII 438 (UK JCPC), 1 D.L.R. 98 at pp. 106-7, [19301 A.C. 124 at p. 136, 119291 3 W.W.R. 479) in arguing that the Charter, being a constitutional document, ought to be interpreted more liberally than a statute. I do not question the validity of the thesis and have no doubt that over the years many words and terms used in the Charter will come to embrace ideas not likely to have actually been in the minds of its authors. Perhaps association' will be among them. However, even the liveliest of living trees takes time to grow - it is a tree, not a weed - and I am not persuaded that the growth during two years can reasonably sustain an interpretation of 'association' in any but its ordinary, everyday meaning in 1982, which is, I am confident, precisely what its authors intended. It means the same today.

The right of freedom of association guaranteed by the Charter is the right to enter into consensual arrangements. It protects neither the objects of the association nor the means of attaining those objects."

It might be noted, however, that the Trial Judge, who also found the restraint legislation at issue in that case to be valid, observed:

"In my view the clause 'freedom of association' guarantees to trade unions the right to join together, to pool economic resources, to solicit other members, to choose their own internal organizational structures, to advocate to their employees and the public at large their views and not to suffer any prejudice or coercion by the employer or State because of such union activities. But it does not include the economic right to strike."

(emphasis added)

About that, Mahoney, J. in the Court of Appeal simply noted:

'I do not think it desirable to attempt to catalogue the rights and immunities inherent in a trade union's guaranteed freedom of association."

Leave to appeal to the Supreme Court of Canada has been granted in both the Dolphin Delivery and Public Service Alliance of Canada cases.

46. An even larger hurdle for the complainant, however, as Harrison v. Carswell, supra, and discussed infra, makes clear, is that the property rights which the respondents here seek to assert against the collective-bargaining rights of the complainant are the rights of one private citizen against another, deriving not simply from the Trespass to Property Act, but from "ancient" common-law principles as well. While commentators in general have expressed doubt as to whether the Charter, in light of section 32, can be said to apply to wholly private rights, Professor Peter Hogg, in his Canada Act 1982 Annotated, Carswell 1982, is less equivocal (page 76):

"Private activity is not covered by the Charter. Such actions as an employer restricting an employee's freedom of speech or assembly, a parent restricting mobility of a child, or a landlord discriminating on the basis of race in his selection of tenants, cannot be breaches of the Charter, because in no case is there any action by the Parliament or government of Canada or by the Legislature or government of a province. (Accord, Testimony of Mr. F. J. E. Jordan, Senior Counsel, Public Law, federal department of Justice, in Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, First Session of Thirty-second Parliament, 1980-81, p. 49:47 (January 30, 1981).) ... The exclusion of private activity is not only clear from s. 32, it is the result one would expect: one would expect a constitution to empower and regulate the institutions of government, not the relationships between private individuals or organizations. Indeed, the application of the Charter to private activity would create a vast new body of constitutionally-based tort law, because the Charter's enforcement provision (s. 24) would authorize lawsuits for redress of private infringements of the civil liberties specified in the Charter. That would be a strange new branch of constitutional law. (In the United States the Bill of Rights has been held inapplicable to private action; 'state action' must be present before the bill of rights can be invoked: Tribe, American Constitutional Law (1978),. ch. 18.)"

47. Apart from this, the fact that the Charter identifies and affirms certain constitutional rights does not deny the existence of other rights, nor does it solve the problem of precisely how to reconcile opposing sets of rights when the differing interests of private citizens place them in conflict. Section 26 of the Charter states:

"26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada."

And, as the Chief Justice of the Supreme Court of Canada observed in an April 25, 1985 address to the Princeton Alumni Association:

"..... of course, even the most generous of constitutions cannot guarantee unlimited enjoyment of the rights it proclaims. The rights of one citizen will inevitably clash with those of his or her neighbour."

In Re N. B. Broadcasting Co. Ltd. (1984) 1984 CanLII 5348 (FCA), 13 D.L.R. (4th) 77, with respect to "freedom of speech" for example, the Federal Court of Appeal wrote:

"The freedom guaranteed by the Charter is a freedom to express and communicate ideas without restraint, whether orally or in print or by other means of communication. It is not a freedom to use someone else's property to do so."

48. Estey, J., in The Law Society of Upper Canada v. Joel Skapinker, [1984] 1 S.C.R.

357, at page 383 wrote:

"The development of the Charter, as it takes its place in our constitutional law, must necessarily be a careful process. Where issues do not compel commentary on these new Charter provisions, none should be undertaken."

Given the lack of judicial authority to date for the proposition that the Charter applies to private rights between citizens, we are of the view at this time, as was the Supreme Court of the United States in Hudgens v. NLRB, (1976) 424 U.S. 507, that the balancing of interests implicit in issues of this kind are to be carried out, not under the provisions of the Constitution, but of the Labour Relations Act, and the principles developed thereunder.

49. While the present case requires the Board to examine the protections afforded organizing activity by the Labour Relations Act to an extent not hitherto before it, it should be noted, as the parties did, that the Board was called upon to the consider much of this area in the relatively recent case of Adams Mine, reported [1982] OLRB Rep. Dec. 1767. The focus of the Board's examination in that case was the outer limits of what constitutes "protected activity" under the Act, but in the course of that examination the Board was called upon to carry out an extensive review of the law with respect to organizing versus property and commercial rights, as that law exists in both this and other jurisdictions. Having done so, the Board, as noted earlier, summed up its conclusions in the following significant paragraph (22) of the decision:

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

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

The respondent Eaton's, while seeking to draw some distinction between no-solicitation and no-distribution rules, essentially accepts this statement in Adams Mines as a "code" of the law in this jurisdiction. The complainant, on the other hand, offers full support for the "law" set forth in Adams Mine as it pertains to employee rights, but strongly urges the view that Adams Mine is wrong with respect to non-employee rights, and being simply obiter in the case then before the Board, ought not to be followed. On the strength of the various authorities placed before the Board in both that and this case, however, it is not difficult to see how the Board arrived at the statement that it did.

50. Dealing first with the American case law, one finds in the earliest discussions of the Wagner Act a recognition of the legitimacy of both the right of employees to self-organize and the right of employers to manage their business and property. In National Labour Relations Board v. Jones & Laughlin Steel (1936), 301 U.S. 1, for example, the Supreme Court of the United States observed:

"Thus, in its present application, the statute goes no further than to safeguard the right of employees to self-organization and to select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer.

That is a fundamental right. Employees have as clear a right to organize and select their representatives for lawful purposes as the respondent has to organize its business and select its own officers and agents. ... Hence the prohibition by Congress of interference with the selection of representatives for the purpose of negotiation and conference between employers and employees, 'instead of being an invasion of the constitutional right of either, was based on the recognition of the rights of both."

[emphasis added]

51. In Republic Aviation Corp. v. N.L.R.B., (1944) 324 U.S. 793, an employee, after being warned of a rule prohibiting the solicitation of, inter alia, Union membership in the plant, had persisted in passing out Union application cards to employees on his own time during lunch periods. The employee was discharged for infraction of the rule and, as the National Labour Relations Board found, without discrimination on the part of the employer toward union activity. The comparable provisions of the National Labour Relations Act provided:

"SEC. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.

Sec. 8. It shall be an unfair labor practice for an employer (I) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7..."

The National Labour Relations Board determined that the promulgation and enforcement of so broad a "no solicitation" rule violated section 8 of the Act in that it was an unlawful restraint upon the rights set forth in section 7. The Circuit Court of Appeal agreed, and noted with respect to both this and the related case on appeal before it:

"These cases bring here for review the action of the National Labor Relations Board in working out an adjustment between the undisputed self-organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments. Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employer or employee. Opportunity to organize and proper discipline are both essential elements in a balanced society.

The Wagner Act did not undertake the impossible task of specifying in precise and unmistakable language each incident which would constitute an unfair labor practice. On the contrary, that Act left to the Board the work of applying the Act's general prohibitory language in the light of the infinite combinations of events which might be charged as violative of its terms. Thus a 'rigid scheme of remedies' is avoided and administrative flexibility within appropriate statutory limitations obtained to accomplish the dominant purpose of the legislation."

[emphasis added]

In the related case, Le Tourneau, the court also found a general rule invalid which had the effect of prohibiting the circulation of Union literature by the company's own employees, on their own time, on parking lots owned by the company and adjacent to the plant.

52. The National Labour Relations Board then took the Le Tourneau principle one step further (N.L.R.B. v. Babcock & Wilcox (1956), 351 U.S. 105). In three cases essentially involving situations where the normal modes of Union contact with employees were not available due to the location of plants within the boundaries of private parking lots or driveways, the Board accepted the report of one of its Trial Examiners that opined:

"To differentiate between employees soliciting on behalf of the Union and non­ employee Union solicitors would be a differentiation not only without substance but in clear defiance of the rationale given by the Board and the courts for permitting solicitation."

The Circuit Court of Appeals did not agree. It began by repeating the need to balance the competing rights and interests at play, in language which has served as the watchword for addressing this problem ever since:

"This is not a problem of always open or always closed doors for union organization on company property. Organization rights are granted to workers by the same authority, the National Government, that preserves property rights. Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other."

[emphasis added]

The Court also went on to note:

"In these present cases the Board has set out the facts that support its conclusions as to the necessity for allowing nonemployee union organizers to distribute union literature on the company's property. In essence they are that nonemployee union representatives, if barred, would have to use personal contacts on streets or at home, telephones, letters or advertised meetings to get in touch with the employees. The force of this position in respect to employees isolated from normal contacts has been recognized by this Court and by others. See Republic Aviation Corporation ..."

but observed:

"Here the Board failed to make a distinction between rules of law applicable to employees and those applicable to non-employees.

The distinction is one of substance. No restriction may be placed on the employees' right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline. Republic Aviation Corp. v. Labor Board, 324 U. 5. 793, 803. But no such obligation is owed nonemployee organizers. Their access to company property is governed by a different consideration. The right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others, consequently, if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property."

The Court then concluded:

"No such conditions are shown in these records."

53. Babcock & Wilcox has had the effect of denying non-employee organizers access to even the peripheral areas of an employer's premises other than in the most exceptional of circumstances (in fact comparable to our own section 11 requirement). The foundation for the distinction appears to be the concept of "non-employee organizer as trespasser", as the various commentators vilifying the distinction have pointed out. See. e.g. Gresham, "Still as Stranger" (1983) 62 Texas L. Rev. ill; Korn, "Property Rights and Job Security", (1984) 34 Yale L. J. 374. The distinction becomes less obvious, however, when one is comparing non-employees to employees who are off-shift, with respect to their right to be present in the peripheral areas, such as parking lots, of an employer's operation. Indeed, the efforts of the National Labour Relations Board to narrow the impact of Babcock & Wilcox are readily apparent. In Solo Cup Co., (1968) 172 N.L.R.B. 1110, the majority of employees drove to work and parked in a private parking lot encompassing the plant. Because of heavy traffic congestion, distribution of literature on the adjacent public road was ineffective and unsafe. The union claimed that alternate methods of imparting information - off-plant meetings, home visits and mass media - were inadequate. The facts, nonetheless, seemed to fall squarely within the situation considered by the Supreme Court in Babcock & Wilcox, and appeared to call for the same result. The Board, however, introduced the "big city rule", and granted the union non-employee access. Babcock, it said, was distinguishable as having involved a relatively small and more easily accessible urban area. "Unlike the small-town situation existing in Babcock", it observed at page 1110, "employees [here] live in various areas of Chicago [and] the surrounding towns". The Supreme Court, drawing again upon the onus established in Babcock & Wilcox, refused to enforce the access order (422 F. 2d 1149). More recently, in Ameron Automotive Centres, (1982) 265 N.L.R.B. No. 58, the dissenting Chairman accused the Board of adopting a 'suburban" or "rural" rule, in granting access to a union on the basis that the employees working in a rural area would live sufficiently far apart that normal efforts to communicate with them at their homes would prove ineffectual. The Courts have yet to pass on that one.

54. Through it all, Babcock & Wilcox continues to be the law, and the American courts, for their part, have left no doubt that the onus they had intended to impose upon trade unions seeking non-employee access was a substantial one. In the case of Sabine Towing for example, (1979) 101 LRRM 2956, the Court of Appeals stated, at 2957:

"While Babcock indicates that an employer may not always bar nonemployee organizers from his property, his right to do so remains the general rule. To gain access, the union has the burden of showing that no other reasonable means of communicating its organizational message to the employees exists or that the employer's access rules discriminate against union solicitation. That the burden imposed on the Union is a heavy one is evidenced by the fact that the balance struck by the Board and the courts under the Babcock accommodation principle has rarely been in favor of trespassory organizational activity."

55. With respect to employee rights, once again, the American law is as set out in Republic Aviation, supra, which wholly adopted the approach articulated by the National Labour Relations Board, in language similar to that summarized by this Board in Adams Mine, supra, in the case of Peyton Packing Company, 49 N.L.R.B. at 843-44:

"The Act, of course, does not prevent an employer from making and enforcing reasonable rules covering the conduct of employees on company time. working time is for work. It is therefore within the province of an employer to promulgate and enforce a rule prohibiting union solicitation during working hours. Such a rule must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose. It is no less true that time outside working hours, whether before or after work, or during luncheon or rest periods, is an employee's time to use as he wishes without unreasonable restraint, although the employee is on company property. It is therefore not within the province of an employer to promulgate and enforce a rule prohibiting union solicitation by an employee outside of working hours, although on company property. Such a rule must be presumed to be an unreasonable impediment to self­organization and therefore discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline."

An exception to this approach in the United States has been the "department store" cases, where a special rule developed prohibiting Union solicitation of any kind even on an employee's own time, anywhere on or in proximity to "the selling floor". The basis for this exception was the potential for disruption of the customer-salesperson relationship in the context of an open department-store setting. See, for example, May Department Stores Limited, (1944) 59 N.L.R.B. 976, at page 981. Recognizing that this is an exception to the general rule regarding employees' own time, the National Labor Relations Board has taken care to note that the exception is in fact concerned with the "selling floor" areas of the store, although finding as well, in Marshall Field & Company, (1952) 98 N.L.R.B. 88 at 92, that:

the prohibition of union solicitation by either employee or nonemployee organizers in aisles, corridors, elevators, escalators, and stairways inside the store did not violate the Act. While such areas are not devoted to selling purposes, it is patent that solicitation carried on in such limited space may create traffic and safety hazards tending to disrupt and interfere with Respondent's business to a serious degree."

We note, once again, that the Board is not urged by the respondent Eaton's to adopt the U.S. "department store" exception, although its submissions with respect to the distribution of literature do come close in that regard.

56. The same balancing process evidenced throughout the American jurisprudence can be seen in the cases of our own Board as well. As the Board in Adams Mine, supra, put it, at paragraph 18:

"The approach of the statute and this Board has been to create a meaningful balance between the statutory rights of employees and the proprietary and commercial interests of employers."

Section 71 of the Labour Relations Act is reflective of this balance in providing the following qualification to the section 3 declaration:

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

Elaborating on this, the Board in Adams Mine observed, again at paragraph 18:

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

The workplace is therefore the most effective location for 'union activity' to be carried out. A policy denying this forum to employees would obviously impair the effective exercise of statutory rights, particularly the right of self-organization. On the other hand, company premises constitute private property and are established for the primary and important purpose of carrying on business activity. The above sections give some indication how the statute has attempted to balance these legitimate interests. Two lawful activities clearly contemplated within the scope of section 3 are the organization of atrade union and collective bargaining."

And further:

"Because the workplace is a most appropriate theatre for membership solicitation, it has been considered reasonable and fair to construe break and lunch periods as non-working time belonging to employees to use as they see fit so long as they do not engage in disorderly conduct or adversely affect other legitimate business interests of the employer. Where they decide to use this time to engage in protected trade union activity, this statute and the remedies available under it apply. To this extent, property rights have been encroached upon by the statute. And while this is a factual issue in any particular case, union solicitation during non­working time will not generally interfere with the employer's legitimate management interests. Any interference must be real and constitute more than a minor annoyance or inconvenience."

[emphasis added]

57. In one of the Board's earlier cases, Audio Transformer Company Limited, [1969] OLRB Rep. Nov. 994, an employee supporter of the Union was discharged for violating an express company rule against union solicitation on company premises. The company did not establish that the solicitation was carried out on anything but the employee's own time. The Board wrote:

"If a person has certain rights under section 3 of the Act, these rights cannot be unreasonably restricted by an employer. The fact that the respondent has given prior notice in writing of its intention to do so does not enhance the respondent's position nor does such prior notice give it the right to contravene section 3 of the Act.

For the purposes of Labour Relations an employer's right to make rules as to conduct on the employer's premises is restricted only by the terms of the Labour Relations Act or the terms of a subsisting collective agreement. A person's freedoms which are created by section 3 of the Act must, of course, be considered in the light of the rights of others. Section 3 does not create an absolute freedom to engage in union activities at any time or place. If it had been established that Mrs. Keller was materially interfering with plant safety or was destroying company property or was creating a serious disturbance or obstruction while engaging in union activity on company premises before the commencement of her shift, the company would have the right to prevent such interference, disturbance, obstruction or destruction. If, by taking reasonable steps to prevent such unwarranted activity, the company had incidentally stopped her union activity the company could not be said to be contravening the Act."

Similarly, in Barbara Jarvis v. Associated Medical Services Incorporated, (1961) 61 CLLC 16,218, at page 980:

"Having regard to the provisions of the Act read as a whole, I am of opinion that organization of a trade union and collective bargaining are two of the activities which are contemplated as coming within the scope of section 3 and that freedom to participate in these activities is among the 'rights' dealt with by section 50 [now 66] of the Act. The last-mentioned section forbids an employer to 'refuse ... to continue to employ a person ... because the person was or is a member of a trade union or was or is exercising any other rights under [the] Act'. An employer who discharges a person for infraction of a 'plant rule' which forbids an employee to exercise his rights under the Act is therefore acting in violation of section 50 of the Act. This conclusion does not mean that an employer has been deprived by the legislation of authority to maintain order on his premises and to ensure that productivity will not suffer. If the primary and bona fide purpose of any rule he establishes with regard to activity on his premises outside of working hours or of a kind not covered by section 53 is in furtherance of the objectives just mentioned or like objectives, no exception can be taken to the rule, even though an incidental effect of the rule may be to curtail the opportunity a person in his employ has to exercise his rights under the Act."

58. In other Canadian Boards as well, the approach has been the same. In Bell Canada, an unreported letter decision of the Canada Labour Relations Board dated August 22, 1975, the Board stated:

"Section 110(1) of the Canada Labour Code guarantees to employees the right to join the trade union of their choice and 'to participate in its lawful activities'. The basic freedoms thus protected include the right to distribute or otherwise disseminate and receive information about a trade union and its activities and the right to sign a membership card, provided these activities do not take place during the working hours of the employees involved. An employer may not without compelling business reasons, prohibit employees from exercising these rights on company premises. To do so amounts to behaviour that is prohibited by the provisions of Sections 184(l)(a) and 184(3)(b) of the Canada Labour Code."

And the Nova Scotia Labour Relations Board, in Michelin Tires (Canada) Limited (1979), 79 CLLC 16,190, at pages 371-72, observed:

"Like the Canada Labour Relations Board, this Board finds that an employee's right to engage in trade union activities is interfered with unless the employer has compelling business reasons for prohibiting solicitation for membership in or support for a union other than during working hours. In our opinion there is no compelling business reason why Michelin's employees should not be allowed to solicit on behalf of the Union, if they and the employees with whom they are dealing are on their own time ...

The Nova Scotia Court of Appeal was ultimately to vacate an injunction granted by the High Court against the employer, but on the ground that it sought by its terms to restrain the employer from interfering with access by non-employees to its plant. See Michelin Tires, (1979) 107 (D.L.R. 3(d) 661.

59. And in American Airlines Incorporated, [1981] Can. LRBR 90, the Canada Labour Relations Board stated at page 103:

"Employees joining a union are doing so to better their interests as workers. The union organizing will naturally take place at or around the working place. However, it must do so without causing disruption in the operation of the business and Section 185(d) of the Code so indicates."

60. In the Canadian Imperial Bank of Commerce case, Board File Nos. 745-1839 and 745-1870, a decision released March 5, 1985 and not yet reported, the Canada Board was called upon to apply the "balance" to a number of factual issues. The Code's version of our section 71 is cast in the form of an "offence" section, and reads:

"185. No trade union and no person acting on behalf of a trade union shall

(d) except with the consent of the employer of an employee, attempt, at an employee's place of employment during the working hours of the employee, to persuade the employee to become, to refrain from becoming or to cease to be a member of a trade union;..."

The Board found that the Union had violated the Code by directing mail to employees in a manner which the Board found was calculated to reach them during working hours. The Board also found, however, that the Union did have the right to have literature left on the desks and chairs of employees before the commencement of working hours. The Board wrote, at page 24:

"In our view, we find very little difference in this matter of solicitation and one where an employee stands outside the place of work and hands out union material. In both cases the solicitation is done outside working hours. In both cases, the Bank can exercise its managerial authority during working hours to ensure that employees are working rather than discussing the union or the literature it distributed during non-working hours."

61. In the Ottawa-Carleton Regional Transit Commission case, [1985] 7 CLRBR 137, the Canada Board had to decide on the legality of a rule prohibiting campaigning between supporters of competing trade unions on company premises at all, as well as the wearing of small-sized badges indicating support for one of the two rival unions. The Board summarized management's justification for its action in the following way at page 154:

"The Board heard evidence from several management persons describing the impact of the [previous] campaign. In management's view, there were several disturbing factors that inhibited its ability to conduct its business in an efficient manner. The most obvious were the constant tensions and verbal exchanges between the opposing factions and the resulting peer pressure upon those who were content to take a neutral or less active role. Drivers purportedly showed up late for their assignments because of the vigorous exchanges and the overall atmosphere affected morale and created negative attitudes that reflected in the daily contact between the drivers and the public. While the wearing of badges was not significant, their very presence could be enough to encourage confrontation."

After making reference to the conclusions of this Board generally in Adams Mine, supra, the Canada Board went on to say:

"In any situation where freedoms are being exercised in a democratic society, there is a price to pay. Parliament has ordained collective bargaining to be an important fibre in the structure of our society and we have all felt the impact and inconvenience of strikes or lock-outs. We patiently, and sometimes not so patiently, make do with the knowledge and acceptance that someone is exercising their rights in a free society. So it is for an employer whose employees decide to change bargaining agents. That exercise is, as a rule, emotional, volatile and, for some, very disturbing and highly traumatic. Any incidental inconvenience for an employer must be weighed against the right of employees to select and belong to a trade union of their choice. To use Chairman Adam's words in the Adams Mine case, speaking of employee solicitation during non-working time interfering with an employer's legitimate management interests, "Any interference must be real and constitute more than a minor annoyance or inconvenience". In the circumstances before us, OC Transpo's managerial prerogatives could be adequately protected through the normal discipline processes.

62. This more liberal approach to organizing rights has, however, as in the United States, been confined to the activities of employee organizers while attending at the premises of their employer. The law has been far less generous in making accommodations for the rights of non-employees with respect to this same property. In our own jurisdiction, section 11 of the Labour Relations Act, as noted earlier, provides:

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

About this Adams Mine had the following to say, at paragraph 21:

"It is to be noted that the statute provides a more specific and different balance between an employer's property interest and the right of non-employees to solicit union membership from employees on company property. In this regard, section 11 provides that where employees of an employer reside on the property of the employer, the employer when directed by the Board, shall allow a representative of a trade union access to the property for the purpose of attempting to persuade the employees to join the trade union. ... If employees have the right to carry on organizing activity on company premises, it does not seem an unfair balance of interests to limit strangers to the usual channels of communication with those employees off company premises."

[emphasis added]

Underlying this more conservative approach, appears once again to be the concept of the "non­employee organizer as trespasser". Whether such a concept is applicable to the same degree in the context of a shopping mall to which the public at large is invited is a question which

it is not unreasonable for the complainant herein to ask. It must be recognized, however, that that question was to a considerable extent placed before the Supreme Court of Canada most recently in Harrison v. Carswell, (1975) 1975 CanLII 160 (SCC), 62 D.L.R. (3d) 68, and, apart from a strident dissent written by then Chief Justice Laskin, was essentially decided against the position advanced by organized labour in this jurisdiction.

63. In the Harrison case, a group of employees on lawful strike were engaged in picketing activity in front of the premises of their employer, carrying placards and distributing leaflets. Because their employer was a tenant to a shopping mall, they were forced to place themselves on privately-owned portions of the mall itself, in order to be in an area proximate to the object of their picketing. The employees were charged with trespass and convicted under the Petty Trespass Act of Manitoba, an Act similar to our own, but the Manitoba Court of Appeal set the convictions aside. On appeal to the Supreme Court of Canada, Chief Justice Laskin wrote for the minority:

"An ancient legal concept, trespass, is urged here in all its pristine force by a shopping centre owner in respect of areas of the shopping centre which have been opened by him to public use, and necessarily so because of the commercial character of the enterprise based on tenancies by operators of a variety of business. To say in such circumstances that the shopping centre owner may, at his whim, order any member of the public out of the shopping centre on penalty or liability for trespass if he refuses to leave, does not make sense if there is no proper reason in that member's conduct or activity to justify the order to leave.

Trespass in its civil law sense, and in its penal sense too, connotes unjustified invasion of another's possession. Where a dwelling-house is concerned, the privacy associated with that kind of land-holding makes any unjustified or unprivileged entry a trespass, technically so even if no damage occurs...

The considerations which underlie the protection of private residences cannot apply to the same degree to a shopping centre in respect of its parking areas, roads and sidewalks. Those amenities are closer in character to public roads and sidewalks than to a private dwelling. All that can be urged from a theoretical point of view to assimilate them to private dwellings is to urge that if property is privately owned, no matter the use to which it is put, trespass is as appropriate in the one case as in the other and it does not matter that possession, the invasion of which is basic to trespass, is recognizable in the one case but not in the other. There is here, on this assimilation, a legal injury albeit no actual injury. This is a use of theory which does not square with economic or social fact under the circumstances of the present case.

What does a shopping centre owner protect, for what invaded interest of his does he seek vindication in ousting members of the public from sidewalks and roadways and parking areas in the shopping centre? There is no challenge to his title and none to his possession nor to his privacy when members of the public use those amenities. Should he be allowed to choose what members of the public come into those areas when they have been opened to all without discrimination..

The shopping centre owner has no overriding or even coequal interest to serve in intervening in the labour dispute, and, if anything, is acting as surrogate of the struck tenant in a situation where the latter has not and probably could not claim redress or relief."

The majority, however, found the case to be governed by the principles recently decided by it in R. v. Peters (1971), 1971 CanLII 1141 (SCC), 17 D.L.R. (3d) 128, and upheld the conviction. Dickson, J., as he then was, wrote for the majority, beginning at page 82:

"The submission that this Court should weigh and determine the respective values to society of the right to property and the right to picket raises important and difficult political and socio-economic issues, the resolution of which must, by their very nature, be arbitrary and embody personal economic and social beliefs. It raises also fundamental questions as to the role of this Court under the Canadian Constitution...

Anglo-Canadian jurisprudence has traditionally recognized, as a fundamental freedom, the right of the individual to the enjoyment of property and the right not to be deprived thereof, or any interest therein, save by due process of law. The Legislature of Manitoba has declared in the Petty Trespasses Act that any person who trespasses upon land, the property of another, upon or through which he has been requested by the owner not to enter, is guilty of an offence. If there is to be any change in this statute law, if A is to be given the right to enter and remain on the land and B against the will of B, it would seem to me that such a change must be made by the enacting institution, the Legislature, which is representative of the people and assigned to manifest the political will, and not by this Court."

64. The majority in Harrison also noted, at page 83:

"Society has long since acknowledged that a public interest is served by permitting union members to bring economic pressure to bear upon their respective employers through peaceful picketing, but the right has been exercisable in some locations and not in others and to the extent that picketing has been permitted on private property the right hitherto has been accorded by statute. For example, s. 87 Isince rep. & sub. 1975, c. 33, s. 211 of the Labour Code of British Columbia Act, 1973 (B.C.) (2nd Sess.), c. 122, provides that no action lies in respect of picketing permitted under the Act for trespass to real property to which a member of the public ordinarily has access.)

As for our own province, we are satisfied on the Hansard records filed by Cadillac Fairview that an amendment to the Trespass to Properly Act similar in effect to the B.C. provision was specifically proposed to the Legislature by one of its NDP members as recently as 1980, in the course of revisions then being made to that Act, but was not accepted.

65. What is the effect of all of the foregoing on the rights which the complainant seeks confirmation of in these proceedings? It should be noted, first of all, that those rights, as left with the Board for determination, have been circumscribed by the complainant itself to a considerable degree. Portions of the complaint were excised by counsel, in the interest of containing the litigation of the facts to the matters of primary concern to the complainant. In addition, the complainant does not now come before the Board seeking, for example, endorsement of the kind of mass "drops" of propaganda on the sales desks during store hours which the evidence discloses took place during the course of the campaign generally. Nor does it ask the Board to affirm the lawfulness of Union organizers' approaching individual employees who are working on the sales floor, in a manner that they clearly could not do in the ordinary factory or office. The respondent Eaton's, on the other hand, has also adopted a sophisticated legal position before the Board which, inter alia, formally recognizes its employees' freedom to chat during working hours about whatever subject they please, so long as their attention to their duties and the customers does not suffer. Further, Eaton's has clarified the stricter aspect of its policy, being the blanket prohibition against distribution of literature, as applying only to distributions of a broad or general nature, whatever that may come to mean; it does not, for example, apply to the passing of a document, including an application for membership in a trade union, in the course of casual conversation between employees. Beyond that, Eaton's recognizes that, for employee organizers at least, the law requires a factual determination in each case as to whether there is sufficient interference with the employer's commercial interest to justify a curtailment on the exercise of section 3 freedoms. It is perhaps the respondent Cadillac Fairview which takes the most "extreme" position in these proceedings, stating that the law gives it the unfettered right to control the usage of its premises in accordance with with what it itself determines is in its own commercial interest. But it must be borne in mind that Cadillac Fairview has an established, non-discriminatory policy of restricted usage that it can point to in that regard, and that Harrison v. Carswell, supra, goes a long way towards supporting the position that it asserts.

66. In resolving the issues before us, it is not the intention of the Board to simply import the legal doctrines developed by the National Labour Relations Board and Courts in the United States; nor, as noted, have any of the parties suggested that we do so. There is, however, no dispute between Eaton's and the complainant that the approach must necessarily be one of balancing, and we will continue to apply that approach in the way Canadian labour tribunals, including our own Board, have in the past. As the Supreme Court of the United States summarized the tribunal's responsibilities in the benchmark case of Hudgens v. NLRB, (1976) 47 L. Ed. 2d 196, at page 208:

"The Babcock & Wilcox opinion established the basic objective under the Act: accommodation of s. 7 rights and private property rights 'with as little destruction of one as is consistent with the maintenance of the other.' The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective s. 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance."

And obviously, in striking the point of this accommodation on each area in dispute, the Board will be mindful of the other means of effective communication reasonably available to a trade union in the context, as well as of whatever other access rights the Board may find it appropriate to grant in the proceedings.

67. In the light of the "balancing" approach manifested in the case law, having listened to the evidence and the parties' submissions, and having accepted the invitation to view the Mall as described earlier, one of the facts which strikes the Board most prominently is that the point of least actual interference with any of the commercial interests of the respondents would appear to be in that semi-enclosed area of the Mall leading to the Eaton's doors at "2 below", well prior to the hour of 10 o'clock when the store opens its doors to the public. As noted above, the Board finds as a fact that at that hour in the morning there is virtually no pedestrian traffic in that area beyond the line of support columns other than that comprised of the persons, mainly employees, who are on their way to enter the Eaton's store with their passes. There is, in addition, a reasonably broad area just inside the Eaton's doors where a limited number of individuals could stand and hand out literature without unduly restricting the free passage of employees entering at that hour. But the store at this point is not open to the public at large, and, on the basis of the legal analysis set forth above, in particular the inferences which may be drawn from section 11 of the Act, it would appear that such activities could only be carried out, if the Board were disposed to endorse them, by Eaton's own employees. The prospect of a Labour Relations Board, however, in effect forcing employees wishing to exercise their section 3 rights to engage in overt union activity in the face of their employer, when the use of professional organizers on the other side of the doorway would be more natural, more constructive from the section 3 point of view, and, if anything, less disruptive of any competing commercial interests of the respondents, seems difficult to justify. The Board must be satisfied, therefore, that the law, and in particular Harrison v. Carswell, supra, offers it no other option.

68. It is our opinion that Harrison v. Carswell does not substantiate Cadillac Fairview's position in the precise situation now before us. The heart of the majority decision in that case appears to be set out in the following passage at page 78:

"With great respect, I am unable to agree with the majority reasons, delivered in the Court of Appeal by Chief Justice Freedman, for I find it difficult, indeed impossible, to make any well-founded distinction between this case and R. v. Peters (1971), 1971 CanLII 1141 (SCC), 17 D.L.R. (3d) 128, decided by this Court four years ago in a unanimous decision of the full Bench. The constitutional issue raised in Peters no longer concerns us; the only other issue was whether the owner of a shopping plaza had sufficient control or possession of the common areas, having regard to the unrestricted invitation to the public to enter upon the premises, as to enable it to invoke the remedy of trespass. The Court decided it did."

The specific question put to the Court in Peters was, as Laskin, C.J.C. points out in his dissent in Harrison, a strictly legal one, raising the broad issue of whether a shopping-centre owner, by inviting the public onto his premises at certain times and for certain purposes, thereby relinquishes for all time and all circumstances his right to assert the normal rights of proprietorship given effect to under the Petty Trespass Act. Clearly the Supreme Court of Canada held in both cases that he did not. But whether or not Chief Justice Laskin was sustained in his view that Peters was decided "without any context of fact" at all, it goes without saying that each of those decisions must at the very least be read with due regard to the actual facts in the Courts below which prompted them. Neither dealt with "trade union activity" (indeed, the case which set the principle, Peters, did not deal with trade union activity at all) at the sensitive stage of initially seeking to canvass employee wishes as to membership in a trade union, and on the face of the decisions it can be seen that in neither of them was the Court asked to consider such activity in the context of what might constitute an "unfair labour practice" under the competing provisions of the Labour Relations Act. In fact Dickson, J., in Harrison specifically notes the difference a finding of improper "motive" might make to the Court's decision when he observes at page 81:

"There is nothing in the evidence supporting the view that in the present case the owner of the centre was acting out of caprice or whimsy or mala fides."

And in the penultimate paragraph of the learned Judge's reasons for decision, he states, once again:

"Anglo-Canadian jurisprudence has traditionally recognized, as a fundamental freedom, the right of the individual to the enjoyment of property and the right not to be deprived thereof, or any interest therein, save by due process of law."

[emphasis added]

That such incursions into the domain of property and commercial rights have been necessarily embodied for organizing purposes in labour legislation in the United States is evident from the commentary set out above, and it is apparent that the comparable unfair-labour-practice provisions in our own statute do the same (see again the comments of the Board in Adams Mine, cited in paragraph 56 above.)

69. Section 64, once again, provides:

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

Dealing with this section, together with the provisions of section 66, the Board in Skyline Hotel, [1980] OLRB Rep. Dec. 1811, noted at 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. Once such conduct has been established, then as a practical matter (and whether or not section 79(4a) of the Act applies to the situation) the onus is upon the employer to come forward with a credible business purpose to justify the conduct (cf. NLRB v. Great Dane Trailers, (1967) 65 LRRM 2465)."

Great Dane Trailers itself is an oft-quoted decision of the United States Supreme Court, in which then Chief Justice Warren wrote, at page 2468:

"We noted in Erie Resistor, supra, at 227, that proof of an anti-union motivation may make unlawful certain employer conduct which would in other circumstances be lawful. Some conduct, however, is so 'inherently destructive of employee interests' that it may be deemed proscribed without need for proof of an underlying improper motive. Labor Board v. Brown, supra, at 287; American Ship Building Co. v. Labor Board, supra, at 311. That is, some conduct carries with it 'unavoidable consequences which the employer not only foresaw but which he must have intended' and thus bears 'its own indicia of intent.' Erie Resistor Corp. v. Labor Board, supra, at 228, 231. If the conduct in question falls within this 'inherently destructive' category, the employer has the burden of explaining away, justifying or characterizing 'his actions as something different than they appear on their face,' and if he fails, 'an unfair labor practice charge is made out.' Id., at 228. And even if the employer does come forward with counter explanations for his conduct in this situation, the Board may nevertheless draw an inference of improper motive from the conduct itself and exercise its duty to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy. Id., at 229. On the other hand, when 'the resulting harm to employee rights is ... comparatively slight, and a substantial and legitimate business end is served, the employer's conduct is prima facie lawful,' and an affirmative showing of improper motivation must be made."

And more to the point, on the facts of this case, the Board at paragraph 20 of Adams Mine wrote:

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

70. That section, and that theory, of the Act is applicable not only to employers, as the above cases discuss, but in the words of the section, to anyone acting "on behalf of " an employer. In the same way, therefore, anyone who, acting on behalf of an employer, seeks to enforce a policy that has the effect of interfering with employees' access to information or opportunities for organizing, without a valid business justification, is guilty of an unfair labour practice. Section 64 was not, once again, before the Court in Harrison v. Carswell, and we do not think that anyone would argue that the Court, by its decision, was granting to Mall-owners a blanket exemption for unfair labour practices. The question with respect to Cadillac Fairview remains, therefore, much as it began in this case: can Cadillac Fairview be said on the facts before us to be a person "acting on behalf of' the employer Eaton's when it acted to prohibit certain organizing activities of the complainant, and did it have the requisite intent to constitute an unfair labour practice when it did so? The facts relating to both of those questions are, to a large extent, intertwined.

71. The two respondents are, to begin with, obviously not "strangers" to one another with respect to the shopping-centre here in question. Quite apart from Eaton's 20 per cent holding in the head-leasing company, and its seats on the Board of Directors, Cadillac Fairview and Eaton's operate in the shopping centre in the daily commercial relationship of landlord and tenant. Clearly this relationship alone is insufficient to establish that any act of Cadillac Fairview which has the effect of benefitting Eaton's is an act done "on behalf of' Eaton's, and the approach of the majority of the Court in Harrison v. Carswell would seem to underscore this. The Board takes it as established in Harrison that the owner/landlord of a shopping mall has an identifiable commercial interest of his own in ensuring generally that traffic in the mall is not disrupted nor customers distracted, even by peaceful and orderly forms of activity, and where activity occurs which poses a tangible threat to such interest, the landlord may well be viewed as acting on his own in taking steps to stop it. Where, however, neither interference, nor, indeed, contact with the shopping public can be shown to exist at all, it becomes more difficult for the landlord to argue that it is acting pursuant to any interest other than that of satisfying the wishes of its tenant (and in this case, its prime tenant in the shopping-centre which bears the tenant's name) in restricting, to the extent that it has, the efforts of those seeking to organize the employees of that tenant.

72. We have not forgotten that the respondent Cadillac Fairview asserts that it maintains a broad, non-discriminatory solicitation policy as a means of maintaining necessary control over the activities which take place in this popular centre of pedestrian traffic. Nor have we any doubt that such controls are needed. The problem is, as with the case of employers, that a broad solicitation policy does not stand on the same legal footing vis-a-vis activities which are specifically protected by statute, and those which are not. This was recognized in the United States, for example, at least as early as the Republic Aviation case, supra, (1944) 324 U.S. 793, where the Circuit Court of Appeals concluded its judgment by stating:

"In the Republic Aviation case, petitioner urges that irrespective of the validity of the rule against solicitation, its application in this instance did not violate s.8(3) [prohibiting discrimination] because the rule was not discriminatorily applied against union solicitation but was impartially enforced against all solicitors. It seems clear, however, that if a rule against solicitation is invalid as to union solicitation on the employer's premises during the employee's own time, a discharge because of violation of that rule discriminates within the meaning of s.8(3) in that it discourages membership in a labor organization."

Or as more broadly put by the National Labour Relations Board in Marshall Field, supra, (1952) 98 N.L.R.B. 88, at page 91:

"The Respondent asserts that union organizers and employees acting in that capacity are not given treatment disparate from that accorded other solicitors. The record supports the contention that the Respondent attempts to exclude all soliciting for whatever purposes form the public areas of the store. It is thus true that union organizers are not discriminated against in comparison to other groups. That fact, however, does not render the Respondent's prohibition of union solicitation in non-selling public areas lawful. The right of employees to engage in concerted activity, of which solicitation on behalf of a union is an inherent part, is guaranteed by the Act, unlike solicitation for such purposes as insurance, boat rides, or newspaper subscriptions. The lack of any discrimination, therefore, between the treatment accorded union solicitors and other solicitors cannot excuse the denial of the statutory right protecting the former."

And more recently by the Canada Labour Relations Board in its Canadian Imperial Bank of Commerce case, supra, at page 22:

"In dealing first with the question of the Bank's policy regarding solicitation, the Board wishes initially to indicate that one must distinguish between the Bank's right to prohibit solicitation by organizations such as the United Appeal or Canada's Wonderland from the right of the Bank to prohibit solicitation by a trade union. The former is completely within the purview of the Bank to allow or not. The latter is not."

It seems to us that Cadillac Fairview is in the same position. If it is found to be a person acting "on behalf of' the employer Eaton's, neither a record of non-discrimination nor a "floodgates" kind of argument is available to it as a justification for conduct which patently interferes with the statutory organizing rights of Eaton's employees. Cadillac Fairview's "defence" in this case, therefore, must rest on the risk of actual interference to its commercial interest in the Mall. But what is its commercial interest affected when organizers of the complainant seek to carry on their statutorily-endorsed activities by attending in the area of the Mall at "2 below" immediately outside Eaton's doors, at a time well before store opening when~ to all intents and purposes, the only persons traversing that Mall area are employees of Eaton's, or to a much lesser extent suppliers, and the only persons raising any detectible complaint about the activity are the management personnel of Eaton's, or other employees of Eaton's equally unenthusiastic about the prospect of Union organization? Such persons in either of those categories are, of course, wholly entitled to hold the views that they do. But neither of them in the circumstances under consideration can show any interference with their own legitimate activities, such as would offset the importance of access to that Mall area at that hour of the day to the exercise of statutory organizing rights.

73. Nor can Cadillac Fairview. In light of its commercial relationship with Eaton's, the Board does not find it persuasive that Cadillac Fairview has from time to time tightened or loosened its policy of control with respect to the activities of the complainant's organizers in the Mall, or that its security officers decided, notwithstanding requests from Eaton's supervisors, to curtail the organizers' activities only to the extent that they exceeded the limits of that policy in effect at a given time. Rather, the Board finds that the respondent, Cadillac Fairview, in both the broad no-solicitation policy that it did enforce, and its letter of September 28, 1984, pursued an overall policy of control which was clearly in line with the desires of Eaton's. Where that policy lacked a sustainable business justification of its own, we find it to have been an unlawful interference with the organizing rights of the Eaton's employees, carried out on behalf of its prime tenant Eaton's. More specifically, we find no sustainable business justification has been made out for Cadillac Fairview having sought to prohibit organizers for the complainant from standing as they did outside the Eaton's doors at 2 below in an area of the Mall otherwise open to the public, at a time when no other members of the public at large were in any way interfered with, for the purpose of handing out literature to employees entering the Eaton's store, without obstructing that entry, or of being available to engage in conversation with any employees who so chose. In the absence of such business justification, we find the action of Cadillac Fairview to have been simply an unfair labour practice, in violation of section 64 of the Labour Relations Act.

74. Of the other means of communication sought to be established through this complaint, the respondent Eaton's, as noted, has made it clear that it does not seek to control the content of the casual conversation of its employees, even during working hours, so long as employees continue to be faithful to their duties. That is all that the complainant seeks in this regard. That leaves for consideration, therefore, the issue over usage of the Eaton's restaurants for soliciting, and the issue of "distribution" on the Eaton's premises at large.

75. With respect to its public restaurants, the position of Eaton's is very different from that of the employer in, e.g., Skyline Hotel, supra, [1980] OLRB Rep. Dec. 1811, where the employer adopted a practice of having anyone simply identified as a Union organizer removed from the public areas of its restaurants and bars. It is also different from that of the employer in Montgomery Ward, [1976] CCH NLRB 20, 992, a case relied upon by the complainant. The facts giving rise to the Montgomery Ward decision are set out in part at page 27,194 as follows:

"Later, in the public restaurant, a union representative and an off-duty employee were having coffee and were approached by the employer who told them that no one was supposed to talk union on company property. The employer testified that the new store had observed a no-solicitation rule from its opening. Although not in writing, the rule provided that no solicitation was allowed by members of organizations of any employees at any time in the public sales area, including the restaurant."

Eaton's does not seek to impose a broad no-solicitation rule on its restaurants, nor does it object to either employee or non-employee organizers seeking to have an employee sign up for the Union in its restaurants over coffee or lunch. Its objection is to the Union or its supporters "setting up shop" in the public restaurant, or engaging in unsolicited "table­hopping", or otherwise converting the restaurant facility to something other than its primary use, to the potential annoyance of the patrons of the restaurant, be they employee or non-employee customers.

76. Eaton's position in this regard is consistent with the approach taken by the National Labour Relations Board in, for example, Marshall Field once again, (1952) 98 N.L.R.B. 88, where the Board, at pages 93 and 94, was considering the use of such department store areas distinct from the "selling floor" as public waiting-rooms, restrooms and restaurants:

"Solicitation in public waiting rooms and rest rooms, however, if subject to reasonable restrictions, could have only a slight, if not nonexistent, effect upon public use of such facilities and no adverse effect on sales activities. To equate the situations presented by solicitation in these areas with that presented by such activity in the remainder of the store, is, therefore, to ignore reality at the expense of employee rights to concerted activity. Accordingly, we find no compelling reason for denying off-duty employees the right to solicit and be solicited for union membership in such space. Far from converting these areas into organizational arenas, however, we find such solicitation permissible only insofar as it is not incompatible with the purposes for which the areas have been set aside for public use. The Respondent may adopt reasonable rules to insure that solicitation is carried on only as an incident to normal use of such facilities.

The Respondent's specific rule regarding solicitation in the public restaurants appears to be lawful and suitable to the particular situation in such areas. The restrictions imposed by this rule are designed to insure that solicitation is carried on in the public restaurants only as an incident to normal use of such facilities. As such, they are entirely consistent with the Board's holding, above, as to permissible restrictions in other nonselling public areas. This situation, it is clear, would be appreciably changed were the Trial Examiner's recommendation accepted that organizers be allowed to move freely from one table to another. Such solicitation seriatim would basically alter those circumstances which differentiate the restaurant areas from the selling floors. Moreover, it would be incompatible with normal use of these facilities at the expense of the Respondent's business."

We agree with the National Labour Relations Board's analysis, and adopt it in the case at hand.

77. The "no-distribution" question is more difficult, in part because the extent of its application has not yet been developed by the facts, or by the employer. The "lingering presence" argument appears to have found favour with the National Labour Relations Board, which noted in, e.g., Stoddard-Quirk Manufacturing Co., (1962) 138 N.L.R.B. 615, at page 616:

"In short, we believe, contrary to our dissenting colleagues, that a real distinction exists in law and in fact between oral solicitation on the one hand and distribution of literature on the other. Further, we believe that logic and precedent call for recognition of this distinction and its legal effects."

We understand the focus of the complainant at this stage to be a right of distribution in Eaton's restaurants only with respect to the Bites 'n Nibbles area where employees generally congregate for coffee prior to store opening (although any broader claim would be dealt with by the comments of the Board in paragraph 76, supra). Interference with "the public" is therefore at a minimum (there are said to be non-Eaton's personnel such as cleaners, suppliers and concessionaire employees using the restaurant at that hour as well). On the other hand, we do accept the submission of Eaton's that even from the point of view of its own employees, they are "customers" of the restaurant in every sense and it must compete for their business with the host of other coffee outlets located, in the context of the Eaton's Centre, in the immediate area. Recognition of this business interest, therefore, would seem to require that Eaton's not be forced to grant a totally free hand to the complainant's supporters with respect to the distribution of literature in the restaurant, notwithstanding the fact that employees there are on their own time.

78. The other distribution right which the complainant asserts is the right to have employees drop literature onto the various sales-desks in the store prior to store-opening. In the Canadian Imperial Bank of Commerce case, as noted supra, the Canada Board decided that it was proper for the Union to conduct drops of literature on the chairs and desks of employees in the Bank's Chargex and Mortgage Corporation centres. The Board also noted that it was within the employer's normal powers to require that all such literature be cleared away before the commencement of working hours.

79. Once again we accept the submission of the respondent Eaton's that there is some difference in the Bank case from the case of a department store, where the distracting material, if not cleared away, will have found its way to a public "selling-floor" area. Having regard to the other avenues of communication available to the complainant in this case, including (but not limited to) the sizeable in-house committee it has effectively recruited and the forms of media advertising employed by it, for example, in Winnipeg, together with the access obtained through this decision to the main employee entrance from the Mall (and, inferentially, to any other employee entrance exhibiting a comparable traffic pattern), we are of the view that mass distribution within the store itself ought to take place on only a limited basis, especially in the restaurant area of Bites 'n Nibbles, in order to accommodate the legitimate business concerns of Eaton's as well. There may, for example~ be material like notice of meetings which the complainant is particularly concerned reach as broad a range of employees as possible, and we do not think that the peaceful distribution of union literature on a very much occasional basis would, even in Bite 'n Nibbles, be such as to raise a reasonable likelihood that Eaton's employees would cease to frequent the respondent's restaurant. And as for the sales floor, while, once again, we are speaking only of the period prior to store opening, and acknowledge the right of Eaton's to require that all such material be removed from the sales floor at times when the store is open to the public, we do not see that the remaining organizing needs of the complainant and its employee constituency should force the employer Eaton's to monitor this task of clean-up, under threat of discipline, as an everyday occurrence. There comes a point, it seems to us, where in the words of Adams Mine, the repeated distribution of literature within the store, even in the circumstances discussed here, becomes more than "a minor annoyance or inconvenience", and swings the balance of accommodation back to the employer.

80. Finally, the complainant asks the Board by way of relief to make some accommodation in this case in its "six-month" and "twelve-month" rules respecting the use it will make of membership evidence, in light of the unlawful interference in its campaign by the respondents to date. The complainant also submits that those rules constitute unjustifiable restraints on the "freedom of association" guaranteed by the Charter.

81. The Board does not accept either of those submissions. The reference of the complainant is to the Board's "rule" or practice of giving weight to cards that are more than 6 months old only to the extent of ordering a vote upon them, and of giving no weight to cards that are more than a year old. The rules themselves, however, do not purport to limit an employee's right to belong to an organization if he so wishes; they only place limits on the extent to which the Board, in trying to satisfy itself as to what those wishes in fact are, is content to rely upon a "hearsay" form of documentary evidence. See, e.g. the Board's discussion in Primo Importing & Distributing, [1982] OLRB Rep. Dec. 1869. If that can somehow be said to run afoul of the guarantee of "freedom of association" in section 2 of the Charter, it seems to us that it is in any event a restriction demonstrably justifiable under section 1 for the purpose of ensuring that employees in a proposed bargaining unit not be forced to accept a particular trade union as their exclusive bargaining agent, without that trade union having, as of the time fixed by the Board under section 7(1) of the Labour Relations Act, the requisite level of support specified by the Act. By the same token, the Board is not in a position to grant special dispensation from the rule on the basis of particular circumstances, since the basis for the rule is not one which the Board has control over in any event. The basis for the rule is nothing more than the effect that the passage of time alone has on the reliability of "hearsay" and documentary evidence of membership, and the particular causes of such passage of time do not alter that. Obviously, no one can identify the precise point in time at which an earlier indication of collective bargaining interest can no longer be treated as reliable, and to that extent the establishment of any fixed guidelines necessarily involves a strong element of "arbitrariness". But, so would the fixing of such a point on a case by case basis - while at the same time depriving a trade union from at least the element of predictability, upon which it can make an assessment of its own position, and determine its own manner of proceeding accordingly. It seems to us that the trade union movement would be little served by the adoption by the Board of a less "arbitrary" approach than it presently employs.

82. In summary, then, the Board finds that, whether or not the respondent Eaton's has in the past failed to distinguish working from non-working time when discussing its "no­solicitation" policy, it has, in these proceedings, since clarified its position in that regard in a clearly lawful form, and no further order by the Board is necessary. With respect to general distribution of literature on company premises, the Board finds that Eaton's has demonstrated a justifiable business interest in seeking to place limits on such distribution. The Board has, however, found that that interest would not be unreasonably compromised by the occasional distribution of literature by employees prior to store opening on the sales desks or in Bites 'n Nibbles, subject always to the right of the respondent Eaton's to direct such literature to be cleared away prior to store opening. To the extent that the respondent Eaton's has sought to apply a blanket no-distribution rule to its premises, even at times when the store is not open to the public and employees are not working, the Board finds it in violation of section 64 and 66 of the Act. The board notes that Eaton's own policy has not yet been fully developed with respect to more limited and informal kinds of "distribution", and there are no factual incidents before the Board upon which it can make a finding.

83. With respect to the respondent Cadillac Fairview, the Board concludes that its reliance upon a broad no-solicitation policy that interferes with the statutory organizing rights of Eaton's employees, and their access to the complainant at a time and place in the Mall where the lack of normal contact with other users of the Mall vacates any business justification, is an act done "on behalf of' the employer Eaton's, and in violation of section 64.

84. The Board accordingly directs:

a) that the respondent Eaton's, in accordance with paragraph 82 above, cease to insist upon a "no-solicitation" policy which includes a blanket prohibition against the distribution of union literature in the store;

b) that the respondent Eaton's sign and forthwith circulate to all of its employees of the Eaton's Centre store, in a manner of its own choosing, the Notice appearing as an Appendix to this decision;

c) that the respondent Cadillac Fairview permit employees of the respondent Eaton's to have unrestricted orderly access to the complainant's organizers at times and in areas of the Mall where normal contact with other users of the Mall does not exist.

The Board does not consider further relief appropriate in the circumstances of this case.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Issued by Order of the Ontario Labour Relations Board

WE HAVE ISSUED THIS NOTICE IN COMPLIANCE HITH AN ORDER OF THE ONTARIO LABOUR RELATIONS EDARD.

AT THE HEARING BEFORE THE BOARD WE MADE IT CLEAR THAT OUR “NO—SOLICITATION” POLICY DOES NOT PROHIBIT EMPLOYEES IN THE STORE AT ANY TIME FROM ENGAGING IN CASUAL CONVERSATION WITH RESPECT TO UNIONIZATION OR ANY OTHER SUBJECT THEY MAY CHOOSE, SO LONG AS THE PROPER OPERATION OF THE STORE IS NOT INTERFERED WITH.

WE WOULD INDICATE ALSO THAT, PURSUANT TO THE ORDER OF THE BOARD, GENERAL DISTRIBUTION OF UNION LITERATURE IS NOT PROHIBITED ON THE SALES FLOOR OR IN OUR RESTAURANTS PRIOR TO THE STORE OPENING, BUT IS SUBJECT TO CERTAIN LIMITATIONS WHICH THE BOARD, IN ITS DECISION, HAS IMPOSED.

T. EATON COMPANY LIMITED

DATED this 12TH day of JUNE 1985