Canadian Union of Public Employees v. University of Toronto, 1988 CanLII 3691

[1988] OLRB Rep. March 325

1629-87-U Canadian Union of Public Employees, Complainant v. University of Toronto, Respondent

BEFORE: Patricia Hughes, Vice-Chair, and Board Members J. A. Ronson and P. Grasso.

APPEARANCES: James Hayes, Richard Blair and David Askew for the complainant; J. C. Murray, Scott Thompson and A. C. Pathy for the respondent.

DECISION OF VICE-CHAIR PATRICIA HUGHES AND BOARD MEMBER P. GRASSO; March 4, 1988

1. The University of Toronto Staff Association ("UTSA") has access to the internal mail service or system ("the service" or "the system") operated by the University of Toronto ("the Uni­versity" or "U of T"). Until recently, its use of this service was unrestricted; however, earlier this year UTSA began to use the service to distribute union organizing materials on behalf of the Cana­dian Union of Public Employees ("CUPE") and in August, the University prohibited use of the service for this purpose. The complainant, CUPE, now comes to this Board alleging that the Uni­versity has violated section 64 of the Labour Relations Act ("the Act"). The University responds that to permit CUPE, through UTSA, to use its internal mail service would constitute "other sup­port" for a trade union within the meaning of sections 64 and 13 of the Act and it is therefore just­ified in imposing the sanction.

2. The very difficult issues central to this complaint were articulated clearly and concisely by both parties. In brief, we must decide whether a cessation by an employer of an existing practice constitutes interference with a trade union's rights or whether continuation of that practice consti­tutes management involvement with a trade union and, further, whether a trade union which does not have an independent claim to benefit from the practice, may nevertheless successfully claim that a denial of the continuation of the practice to its supporters constitutes an interference with its rights. Put another way: has the University interfered with CUPE's rights by restricting UTSA's use of the internal mail service, thus violating section 64? And, if so, is U of T entitled to defend its conduct by explaining it engaged in that conduct to avoid breaching the Act, both on its own behalf (in relation to giving employer support under section 64) and on behalf of CUPE (in relation to the risk to its certification because of employer support under section 13)?

3. Sections 13 and 64 of the Act read as follows:

4. The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has contributed financial or other support to it or if it discriminates against any person because of any ground of discrimination prohibited by the Human Rights Code, 1981 or the Canadian Charter of Rights and Freedoms.

5. 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.

Sections 3 and 71 of the Act are also relevant:

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

4. 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.

5. There was substantial agreement on the facts underlying this dispute. At the outset of the hearing, counsel for the University gave the Board an Exhibit Book which was admitted on agreement of counsel for CUPE, as were a small number of individual exhibits during the course of the hearing. David Askew, President of UTSA, was called by CUPE as the only witness in the case. He described UTSA's relationship with U of T and the use of the internal mail service by UTSA; he also explained why UTSA needs to use the service in its organizing campaign on behalf of CUPE and what he believed would be the relationship between UTSA and CUPE, should CUPE be successfully certified. Counsel for the University, on the agreement of counsel for CUPE, advised the Board about the operation of the internal mail service. That evidence was accepted by counsel for CUPE which had, he indicated, no independent knowledge about how the system works.

6. The internal mail service is under the management of B. Schmidt; he is responsible for seven employees, two of whom work in the post office located at Simcoe Hall on the University campus ("the Simcoe Hall employees") and five of whom work at the central sorting location, 563 Spadina Avenue ("the Spadina Avenue employees"). The Spadina Avenue employees sort the mail and put it in the appropriate box or bag for further distribution to the various buildings con­nected with the University (they are also involved in sorting mail going through Canada Post). There are two deliveries to Simcoe Hall by the Spadina Avenue employees, one at 9:00 a.m. and one at 1:00 p.m. (the times of the dispatches to the various locations are set out in Exhibit 34 to these proceedings); the Simcoe Hall employees sort, bundle and distribute the mail to the offices in Simcoe Hall and the office staff sort the mail further and distribute it to the individual employees during working hours. Most departments or locations have only one dispatch; for example, a Spadina Avenue employee makes one drop at Admissions, sometime in the morning, and picks up that department's mail to take back to Spadina Avenue; employees in Admissions sort the mail which has been left there and distribute it among the employees working in Admissions. UTSA is listed on the list of dispatches as receiving a direct dispatch during the afternoon. ("Direct" means that the mail is taken to and picked up from that location: this is the most common form of deliv­ery and pick-up; "indirect" means that the mail directed to two locations is dropped at one loca­tion where the mail destined for the other location is pulled and delivered to that second location or the bag addressed to the second location is delivered to the first location and an employee of the second location then picks it up; in a few instances, employees of a department pick up the mail at Spadina Avenue, dropping off their own at the same time, as is the case with the Addiction Research Foundation.) Scarborough and Erindale Colleges pick up their own mail and sorting and delivery is done at their own facilities; delivery is during working hours. The 1987-88 budget for the operation of the facilities at Simcoe Hall and Spadina Avenue, including employees' salaries and benefits, equipment, supplies and maintenance is $224,854; the cost of sorting and delivering by other employees is absorbed into their salaries as sorting and delivery constitute part of their regular duties.

7. While the system is not used exclusively by internal individuals and groups, use by "out­siders" or "strangers" is rare and only with the permission of the University. The University's gen­eral policy is found in a letter from P. Tai-Pow, Manager, Parking and Mail Services, to J.D. Kraemer, Chief Administrative Officer, Faculty of Medicine, in which it is made clear that bulk mailings by outside organizations using the Faculty of Medicine's duplicating centre will not be accepted by the mailroom. That specific example reflects the usual practice. Counsel for the Uni­versity explained that the United Way and the Cancer Society have been granted access to the sys­tem without charge (see Exhibit 29 herein, a communication of The University of Toronto's United Way Campaign entitled "United Way Update"); the Canadian Opera Company and the Te Deum Concert Society have also been granted access, but were charged. An academic at another university wishing to do a survey of U of T's faculty might be allowed use of the system, but would not be provided with labels with the faculty's University addresses.

8. UTSA uses the system to distribute a regular newsletter, notices of events, surveys with respect to discussions about terms and conditions of employment and other material to members; it also has used the system to solicit memberships (for UTSA) from the non-members among its con­stituency. In doing large mailings, UTSA sorts by department and building, putting the mail in reg­ular mail bags, in order to facilitate the sorting which occurs at the University's central mail room. As an individual employee, Mr. Askew testified that he receives his statement of pay, benefit state­ment, letters from the administration to all staff, bills from the faculty club, solicitations from the United Way, announcements of events, correspondence from career counsellor associations at other universities and, in general terms, a broad range of material.

9. It is clear that the internal mail system operated by the University is used by organiza­tions and individuals connected with the University (and in a very limited way, by organizations and individuals outside the University) to distribute professional and personal correspondence. No censorship has been applied, although the University maintains that it might impose censorship to prevent certain kinds of material, such as "hate literature", from being distributed through the sys­tem. In fact, except for the restriction placed on UTSA with respect to CUPE's organizing materi­als (and subsequently on persons seeking to use the system to voice their opposition to the union), the Uni"ersity has never placed restrictions on the use of the system, including the type of material which may be distributed and the distribution of personal correspondence during working hours. Mr. Askew stated, without contradiction, that there had never been any direction from U of T with respect to the "proper" use of the system; for example, although he has received all kinds of personal material during working hours, those communications have never borne the notation "to be read outside working hours" or similar wording; nor did we hear of any general direction by the University that such material could be opened only outside working hours.

10. Mr. Askew, a career counsellor at U of T, has been granted 50% leave time by the Uni­versity to work for UTSA which has been "recognized" by U of T since 1971 as the representative of the support, administrative and technical staff at the University. UTSA meets with the Universi­ty's administration to discuss the terms and conditions of employment of those employees; Mr. Askew uses the term "negotiate" but the accuracy of that term is belied by his agreement with counsel for the University that should there be no agreement between them, the University may impose terms and conditions (after UTSA has had an opportunity to transmit its own views to the Governing Council through the President of the University): a document entitled "Process Related to Discussions between UTSA and the University on Salary and Benefits - January, 1980; Revised April, 1984", entered as Exhibit 2 to these proceedings, supports the position that UTSA serves as a vehicle by which the University can reach that segment of the University community to discuss, rather than negotiate, changes in their working conditions. As indicated, Mr. Askew has been given leave time to work with UTSA; three other employees have also been given release time. The University deducts dues from the pay of UTSA's members and has given UTSA office space. On the other hand, it does not appear that the University has ever interfered with or attempted to influence UTSA's internal proceedings or policies. In one sense, UTSA is similar to many other campus organizations which function on a university's premises; in another sense, it has a particu­lar kind of relationship with the University in that it represents its members in discussions on the terms and conditions of their employment. There was no evidence before us, nor was it argued, that UTSA originated out of any initiative of the University rather than out of the initiative of affected employees.

11. In January, 1985, UTSA's salary and benefits committee recommended establishing a more formal relationship with the University, one similar to that enjoyed by the University of Toronto Faculty Association ("UTFA") which has been voluntarily recognized by the University as the bargaining agent for the faculty. This proposal was ultimately rejected by the University in April, 1987. UTSA sought its members~ views on the question of whether UTSA should seek cer­tification through surveys sent out through the internal mail system; replies also travelled through that system, as did reports on the progress of the debate. In distributing these and all its communi­cations, UTSA uses mailing labels: for its 1,800 members, it produces the labels on its own com­puter (these were previously prepared on the University's computer, for which UTSA would pay for the time); for UTSA's entire 3,700 person constituency (that is all administrative, technical and support staff, whether members of UTSA or not), the University provides the labels for which UTSA pays.

12. In April, 1987, at UTSA's annual general meeting, the executive received a mandate to launch a certification drive "in affiliation with CUPE", to use Mr. Askew's words. Approximately 3,000 persons in UTSA's 3,700 person constituency fall within the bargaining unit for which CUPE intends to seek certification. The application for membership which UTSA asks people to sign is clearly an application for membership in CUPE, however, and not in UTSA or in some combina­tion of UTSAICUPE. Over the next few months, organizing material was sent through the internal mail system. In a letter dated May 19, 1987, UTSA asked the University for "two sets of labels for all non-unionized administrative staff ... who are not members of UTSA". The University's response was clear; in a letter dated June 9, 1987, from Alexander C. Pathy, Vice-President - Busi­ness Affairs, to Mr. Askew, the University set out the position it has maintained until the day of this hearing:

You have requested that the University supply UTSA with mail labels for administrative staff for purposes of distribution of material from UTSA through the University's internal mail sys­tem.

The University has become aware that mailing labels provided by the University have been used by UTSA to distribute literature supporting the CUPE organizing campaign and that such litera­ture has been distributed through the University's internal mail system. This was done without the consent of the University and labels provided to UTSA were not provided for this purpose.

As you may be aware, the Labour Relations Act of Ontario provides that no employer shall par­ticipate in or interfere with the information, 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.

In the opinion of the University, providing mailing labels to UTSA for the purpose of enabling UTSA to distribute union literature to employees by use of the internal mails may well be viewed as [a] violation of the provisions of the Labour Relations Act referred to above which prohibit employer participation in the selection of a trade union or the provision of financial or other support to a trade union.

The University is not prepared to engage in any conduct which might be viewed as a violation of the provisions of the Labour Relations Act. In addition, the University is concerned that employees who have the right to join any trade union of their choice, might perceive the provi­sion of labels and the use of the internal mail service as support for a particular trade union. Other trade unions may be interested in organizing employees at the University and employees may be interested in associating with another trade union. The University believes that no unfair advantage should be given to a particular trade union. Similarly, the University has refused requests from employees who have asked for mailing labels to communicate their views to other employees. The University's position regarding unionization is one of neutrality.

Therefore, the University is prepared to provide labels to permit UTSA to have literature dis­tributed by the internal mail system to members and non-members only on your specific under­taking that such labels will not be used to disseminate literature supporting the organizing efforts of CUPE or any other trade union. Upon such undertaking being given by you or by other authorized representatives of UTSA, labels will be provided when requested. If UTSA has in its possession mailing labels previously provided by the University, we respectfully request that such labels not be used for the purpose of dissemination through the University's internal mail system of literature supporting union organizing efforts.

12. UTSA did not respond directly to this requirement of an undertaking, but requested

(by letter of June 11, 1987) "a list of all staff hired since April 30, 1987, arranged by department".

Then, in a letter from Mr. Askew to Mr. Pathy dated June 22, 1987, it set out its position:

As you are aware, for the past seventeen years, the University of Toronto Staff Association has represented the interests of the support, administrative and technical staff at the University of Toronto. Perhaps the most important aspect of this representation is the annual negotiation of improvements to salaries and benefits. Throughout the life of the staff association, the Univer­sity administration has provided us, at our expense, mailing labels to enable us to communicate with our constituents. It is our view that you would not be viewed by the Labour Board as par­ticipating in the formation of a trade union if you continued the practice of supplying UTSA with mailing labels. We are of the opinion that it is more likely that your action to discontinue this practice would be viewed by the Board as an attempt to make the formation of a union more difficult.

I therefore request that the University continue the well-established practice of supplying UTSA with mailing labels and that our outstanding requests be fulfilled.

In its response seven days later, the University reiterated its position set out in its June 9th letter and stated that that position also applied to UTSA's request for a list of staff hired since April 30, 1987. On July 7, 1987, UTSA requested labels in order to distribute its June/July Newsletter, "the main feature" of which, it said, "is a report on the salary and benefits settlement for 1987-88". That request was refused by letter of August 24, 1987, on the basis that UTSA had failed to give the undertaking requested and that "the June/July Newsletter contains an article supporting the certification drive by CUPE that would clearly contravene the undertaking if it had been given". The letter asserted that UTSA had been using the system to distribute literature supporting CUPE's membership drive, including membership cards and that as of August 31, the campus mail service would not pick up or distribute UTSA's outgoing mail. Mr. Askew testified that as of that date, UTSA's mail was not picked up, but that it continues to receive delivery of mail addressed to it.

13. Mr. Askew informed UTSA's constituency of the University's decision in a memoran­dum to "All Staff of U of T"; it was dated August 28, 1987, and was the last communication from UTSA distributed by UTSA itself through the internal mail system. This memorandum had on it the following logo printed in the left-hand corner

STRONGER

TOGETHER

UTSA ♦ CUPE

Along the northwest edge of the square inside the circle are the letters "C.U.P.E." and along the southwest side are the letters "S.C.F.P." At the bottom of the page, appears the circle portion of the logo and beside it, the words "University of Toronto Staff Association/Canadian Union of Pub­lic Employees". The University's position was made public (within the University community) in a general statement of September 1, 1987; that statement, in addition to repeating what had been expressed in the letters to UTSA, contained the following paragraph:

The University has also received requests from individual employees for mail labels and the use of the University's internal mail system for the purpose of communicating to fellow staff mem­bers their opposition to CUPE's organizing efforts. The University has denied these requests, as well as UTSA's for this purpose. This response is consistent with the University's obligation under the Labour Relations Act not to interfere with the decision of employees to join, or not to join, a trade union of their choice.

Counsel for CUPE acknowledges that a possible consequence of CUPE's request is that persons opposed to the union might also be able to use the internal system to garner support without run­ning the risk of having a petition dismissed solely for that reason; however, he pointed out that individuals have not received labels in the same manner as organizations, including UTSA, have and therefore provision of labels would be a departure from the existing practice.

14. A letter dated September 3, 1987, with the same contents as Exhibit 11 to these pro­ceedings, was sent by the University to administrative staff. Mr. Askew then wrote an "open let­ter" to the University's President, Dr. George Connell (dated September 4, 1987 and marked as Exhibit 13 herein) in which he stated that denial of access to the internal mail system "constitutes, in our view, at one and the same time an attempt to thwart the union drive and a restriction on the freedom of speech of a significant portion of the U of T community". He pointed out that UTSA has "enjoyed unfettered access to the internal mail system" since its formation in 1970 and thus use of the system "is the only means by which UTSA can realistically hope to contact its more than 3,000 constituents [and that c]continued access to the internal mail system is necessary for the UTSA Board and Executive to carry out the mandate given by our membership at our Annual General Meeting on April 30, 1987, to conduct a union drive in affiliation with CUPE". He further stated that the internal system is used by CUPE 1230, UTFA and SAC (Students' Administrative Council)(these are all representative of various groups at U of T). Dr. Connell responded on Sep­tember 9,1987, repeating the University's position and elaborating on it in the following manner:

The University, to the best of my knowledge, has never allowed any trade union or group of employees to use the internal mails to assist in organizing support for or against a trade union. To accede to your request would, in my view, be to create an unfair advantage to one trade union in circumstances where there may be other trade unions which also are attempting to organize or where there may be employees who wish another trade union to represent them or who wish no trade union at all. The prohibition in the Labour Relations Act, which make [sic] it unlawful for an employer to provide financial or other support to a trade union, is designed to eliminate the very advantage being sought on behalf of CUPE.

I respectfully disagree that UTSA has had unfettered access to the University's internal mail sys­tem. While constraints on the use of the mails have not been published, it is clear that the Uni­versity's conduct must be governed by the rules as established by provincial legislation. For example, the University would not tolerate the use of the internal mail system for the distribu­tion of literature which encourages discrimination. I do not suggest that UTSA would ever use the mails for such a purpose, but use this example only to make the point that access to any Uni­versity service must be governed by law.

There is no restriction by the University on UTSA's freedom of speech. Within the rules of the Labour Relations Act, UTSA can support the union of its choice and engage in a certification drive but the University by virtue of the same Labour Relations Act must not be involved by allowing its mail service to deliver that message.

15. UTSA attempted to circumvent the University's decision not to pick up and deliver its mail by asking other campus organizations to distribute materials for it. For example, the Women's Centre, when it circulated a survey to women on campus designed to help it establish its priorities, also distributed notice of information sessions on Bill 154, the pay equity legislation; the notice indicated that the sessions were sponsored by UTSA and contained the slogan "Stronger Together" in the left-hand corner and the words "University of Toronto Staff Association/Canadian Union of Public Employees" at the bottom. No one contested that this was organizing material and Mr. Askew admitted that it had been sent through the internal mail system after the University's August directive. Canadian Union of Educational Workers ("CUEW"), Local 2 and CUPE, Local 1230 (both of which hold bargaining rights for certain U of T employees) extended an invitation to UTSA's constituency to attend the "UTSA/CUPE Union Drive Rally & Social on Thursday, October 1"; the invitation exhibited the "Stronger Together" slogan and the words "University of Toronto Staff Association" with UTSA's address at the bottom of the page and had a return address of CUEW, Local 2. It was also agreed that this was distributed through the internal mail system after August 31, 1987. As a result of these distributions, a memorandum dated September 24, 1987, and addressed to "All Departments and Organizations Served by the Campus Mail Service", expressed the University's position that the mail system depends on "a high level of trust and co-operation" and that the distribution of CUPE and UTSA material through the system by other organizations "undermines the trust upon which the campus mail sys­tem [sic] is based and may necessitate the re-assessment of the pickup and distribution of campus mail if it continues"; a copy of the September 1st statement is attached to that memorandum. John H. Parker, Director, Labour Relations, for the University, also wrote to Joanne Martin, President, CUEW, Local 2, on September 29, 1987, advising that the distribution of Exhibit 27 was improper and requesting that "CUEW not engage in any more such mailings".

16. After the University restricted UTSA's access to the system, UTSA attempted to set up its own distribution system, using volunteers to deliver material during lunch hours and coffee breaks. Mr. Askew emphasized that trying to reach 3,000 people, potential members of CUPE, in various locations, is a difficult task and that to do that on their own would involve a great deal of time. Thus, he said, UTSA members have spent a disproportionate amount of time distributing materials at the expense of actual organizing.

17. The correspondence and other material has been set out in some detail in order to establish the background to this dispute and because they articulate the two sides of the debate very clearly. We now address the specific issues before us.

18. Section 64 of the Act is concerned with ensuring that one of the underlying policies of the Act, that trade unions are the freely chosen representatives of employees, is realized. To that end, employers are prohibited from becoming involved in organizing campaigns. So important is that policy, and the policy that trade unions and employers exist in an arms length relationship, that a trade union which has experienced employer support or participation shall not be certified by the Board, pursuant to the section 13 of the Act, the language of which has been termed "clear cut': Drywall by Jamieson, [1965] OLRB Rep. May 99. The importance of section 13 and its inter­relationship with section 64 was dealt by the Board in Coons Heating & Sheet Metal Limited [1978] OLRB Rep. June 525. There the employer found, after he had successfully bid on a job as sub­contractor, that the job could be sub-contracted only to a unionized company; he contacted two unions and subsequently encouraged one of his employees to contact the unions; that employee and others joined both unions. On a request for reconsideration of the first union's certification (by the employee), the Board rejected the union's submission that employer involvement in the sec­tion of a trade constituted only a contravention of section 64 of the Act and held, instead, that the "action of an employer in assisting a trade union to organize its employees amounts ... to the con­tribution of support of the trade union and as such comes within the category of 'other support' referred to in section [13]". The Board also made it clear that it had been prepared to reconsider its decision to certify the applicant even though the employee had known at the time of the certifi­cation of the facts upon which he relied in his request, because of the "strict prohibition contained in section [13] of the Act against certifying trade unions which have received employer support".

19. The University took the action it did in restricting UTSA's access to the internal mail service because UTSA was using it to distribute organizing materials for CUPE. It was the Univer­sity's stated purpose to stop the distribution of CUPE's organizational material. It does not argue that the prevention of the circulation of CUPE's organizing material is an incidental result of its pursuing a "credible business purpose". The University does not claim that it is too costly for it to continue its normal practice with respect to the service. It was not argued that the cost is any greater or significantly greater because UTSA is distributing organizing material than it is when UTSA is distributing any other material to its constituency. The University has absorbed the cost of distributing personal communications, of material sent by unions with existing bargaining rights and by organizations such as UTFA, which is not a trade union, but has a bargaining relationship with U of T, or UTSA, which has had a "discussion" status relationship with the University admin­istration. Rather, it claims (and has done so since the beginning) that it had to what it did in order to avoid violating section 64's prohibition on contributing financial or other support to CUPE and to avoid (presumably on CUPE's behalf) satisfying the preconditions of non-certification in section 13 of the Act; in other words, the University has come forward with what it claims is "cred­ible legal purpose" to justify its conduct. The dilemma which U of T contends it faces is articulated by the Canada Labour Relations Board in Canadian Imperial Bank of Commerce, [1985] 10 CLRBR (NS) 182 (which involved the use of the Canadian Imperial Bank of Commerce's ("the Bank's") internal mail service by the Union of Bank Employees ("UBE")) as follows:

Unfortunately, the role of neutrality in which an employer finds itself was very much put in jeopardy by, in the instant case, the UBE's mailings. The mail could not be distributed to the employees without causing the employer to become intimately involved, whether it wished to or not, in the UBE's organizing campaign. The actions of the UBE put the Bank very much in a quandary. If it did not deliver the mail, it ran the risk of a complaint of the type eventually filed by the UBE [that it had interfered with the union's rights under section 184(1)(a) of the Code which contains similar, but not identical, wording to the first part of section 64 of the Ontario Labour Relations Act]. If it delivered the mail, it ran the risk of a complaint being filed that it was not staying neutral, that it was involved in the UBE's organizing campaign.

(In addition, the University relies on a secondary justification - that the mail is delivered and read during working hours - which we consider below.)

20. The University chose to solve its perceived dilemma by taking action to restrict UTSA's use of the internal mail system. It could have simply declined to take any action and let matters run their already established course. Its justification for taking action is that it believes permitting the established practice to continue is a contravention of section 64, while imposing a change on the established practice is not a contravention. In our view, the opposite is the case. By letting matters continue, the University would not be indicating its support for CUPE; it would simply be treating UTSA as it treated all other organizations on campus and distribution by the University of other organizations' material is not considered support for that material. It may be true that the Univer­sity has not only the right, but the obligation, to prevent the circulation of illegal matter through its internal mail service, should circulation of such material come to its attention. But organizing material is not in itself illegal. On the contrary, a union has a statutory right to distribute campaign material, although certain restrictions may be placed on that distribution (a qualification we con­sider below). As the Canada Board in CIBC, supra, stated:

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.

Similarly, the Ontario Labour Relations Board, in T. Eaton Co. Ltd., [1985] OLRB Rep. June 941 (application for judicial review dismissed; Cadillac Fairview Corporation Limited et al v. Retail, Wholesale and Department Store Union et al, 88 CLLC ¶14,005 (Div. Ct.), pointed out in relation to a broad non-solicitation rule applied to the use of the Eaton's Centre by Cadillac-Fairview, Eaton's landlord, that "[t]he 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". In our view, by taking action to prevent the circulation of organizing material, the University has interfered with CUPE's organizing campaign and has vio­lated section 64 of the Act.

21. The basis of the complaint is interference in CUPE's rights resulting from an existing relationship between U of T and UTSA. Counsel for CUPE points out that while the complaint is brought on behalf of Mr. Askew and UTSA as specifically named grievors, CUPE's own rights have been affected; those rights, he asserts, are not derivative rights but distinct rights as an orga­nizing union not to have those people it is organizing discriminated against; in practical terms, it seeks to enable its supporters to communicate with one another in the way they did before the organizing campaign. Counsel for CUPE agrees that CUPE is not claiming (for the purposes of this case, at least) that it has a distinct "right" to use the internal mail system, independent of any entitlement of UTSA to continued use of the system. CUPE has not attempted to use the system directly, by making application as an "outsider" or "stranger", but rather bases its claim on its informal relationship with UTSA which represents CUPE's potential supporters. Counsel for the University contends, on the other hand, that CUPE cannot rely on the history of the use of the internal mail system which is at root of this complaint. He says that he does not object to CUPE's standing to bring the complaint, but, rather, submits that CUPE cannot be successful because it cannot claim any right to use the system: it cannot base a claim on the historical relationship to which it has not itself been a party. Although CUPE's complaint must be founded on its relation­ship with UTSA, CUPE is an entity quite distinct from UTSA. Whatever CUPE may claim with respect to the use of the internal mail service, it cannot claim it on the basis that it is some form of extension of UTSA or that it is UTSA in another guise nor does it made any such claim.

22. One of the rights enjoyed by CUPE, or any other trade union, under the Act is freedom from interference by the employer in the manner in which it is formed or administered or in which its supporters select it. In short, CUPE is entitled to expect that the employer will take a "hands off" attitude during the organizing campaign, as well as after certification (although section 64 also ensures that the employer may express his or her views "so long as he [or she] does not use coer­cion, intimidation, threats, promises or undue influence"). UTSA is the main force behind CUPE's organizing drive; its identification with CUPE, in that capacity, is well-known and has been made clear in the information distributed by UTSA to the administrative staff. Thus when U of T restricts the manner in which UTSA communicates with its supporters, it knows that it is restricting the manner in which CUPE communicates with its supporters. CUPE's claim arises out of its specific relationship with UTSA and UTSA's role as CUPE's major source of support. CUPE's claim arises out of its statutory rights as a trade union engaged in organizing U of T's employees. Indeed it is worth noting in connection with CUPE's place in these proceedings, that the University has no difficulty in justifying its conduct with respect to UTSA in terms of the effects on CUPE, even while it argues that CUPE cannot successfully respond to the effects it believes that conduct has on its organizing drive.

23. It is crucial to our conclusion in this matter that UTSA was continuing to do what it had always done: use the internal mail system to distribute materials of concern to it and its members or its broader constituency. Thus the context is not the same as in the CIBC case, supra, in which the UBE began to use the internal mail system at the time of its certification campaign. UTSA enjoyed a "benefit" all organizations, and in slightly different form, all individuals, who are part of the University of Toronto community enjoy. The University, in allowing UTSA to use the system, was doing nothing in or on its behalf that it does not do for all other campus organizations. Although UTSA specifically requested labels for the purpose of distributing the material, that request was consistent with its usual manner of distributing materials to its constituency. It made no special request to involve the University in the campaign. It is the fact that the system is a pre­existing practice and that UTSA's use of it has not involved the University in a deliberate way in the campaign which distinguishes this case from most of the cases cited to us by counsel for the University illustrating situations in which this Board has found employer involvement constituted a violation under section 64 or has declined to certify a union under section 13 of the Act.

24. In Microdent Laboratories Ltd., [1969] OLRB Rep. Oct. 852, the company's President, at the request of the union's organizer, attended the meeting at which the organizer spoke to the employees; the Board concluded that his "apparent support would influence the employees in favour of the union" and refused to certify the trade union under section 13 of the Act. The Board has also refused to certify a union where it has used company premises for its founding meeting with the permission of the employer free of charge (Gillies Bros. & Co. Limited, [1964] OLRB Rep. Dec. 420; Kemp Products Limited, [1966] OLRB Rep. April 39; Kenora District Home for the Aged, [1960] OLRB Rep. April 28; Crowe Foundry Limited, [1969] OLRB Rep. May 218; Burlington-Nelson Hospital, (1963) CCH Canadian Limited ¶16,629); where the employer attended at the meeting and gave advice (Gillies Bros, supra); where the union's constitution had been the subject of negotiations between the employer and the applicant association (Kemp Products, supra); where the employer had given permission to the employee association to post notices announcing a meeting of the association for the purpose of passing a constitution and appoint officers and a bargaining committee (Gillies Bros., supra: also see Crowe Foundry, supra, for similar facts); where a member of management posted a notice of the organizational meeting bearing his name (Kenora District Home for the Aged, supra) or the meeting was announced over the company's public address system (Burlington-Nelson Hospital, supra; Alco Compunders Inc., [1979] OLRB Rep. Sept. 845 in which management shut down production so that the employees could attend a meeting in the company cafeteria); and where the employer had voluntarily checked off the dues with which the association was financed (Crowe Foundry, supra; Canadian Home Products Limited (Niagara) Falls), [1961] OLRB Rep. Aug. 158; Scott Haulage Limited, [1963] OLRB Rep. Jan. 422 in which the employees were represented by another bargaining agent). In Drywall by Jamieson, supra, not only was the employer deducting dues before certification and a collective agreement, but was paying the dues of two members of the applicant, although the appli­cant may not have been aware of the latter. In a more recent case, Fautless-Doemer Manufacturing Inc., [1980] OLRB Rep. Feb. 214, the employer referred the applicant association to a consultant who advised the association; in addition, management was involved in the process by which the association tried to change its status to that of a trade union and meetings were held on company premises: the Board found that the association was not a trade union and that, in any case, it would be prohibited from certifying it. In Square D Canada Electrical Equipment Inc., [1980] OLRB Rep. Sept. 1324, the plant manager of the respondent read to the employees a statement which the Board found to be "a very carefully worded and guarded statement", but which never­theless revealed the preference of the employer for a "shop association" rather than the applicant trade union; following the statement, the employer permitted an employee to circulate a petition for an association during working hours. The Board concluded that "[s]uch an open condonation of [the employee's] behaviour becomes a clear indication [to the employees] that [he] ... is acting on behalf of their employer. Further, no attempt is made by the employer to dispel this impres­sion".

25. The context of these cases is significantly different than that before us. In all these cases, the employer and the union or employees' association are clearly not in arms length relation­ships; in many of the cases, the union actively sought the support of the employer specifically for the purpose of the organizing campaign. For example, in Coons Heating, supra, the Board felt compelled to add that neither of the unions involved "can escape censure for their actions" in actively seeking representation of the employees through the employer. The Board in Microdent Laboratories, supra, applied a distinction set out in Canadian Fabricated Products Limited, C.C.H. Transfer Binder 1949-54, ¶17,090 between "an organization which is the passive recipient of unsol­icited favours and an organization whose officers or officials actively avail themselves of favourit­ism by an employer or an employer's representative as an aid in the recruitment of members". While we do not necessarily adopt that as a general principle, we find it is particularly apropos in this case, where CUPE is simply seeking to maintain a practice which its major supporter has enjoyed since its inception and has enjoyed, not because it represents employees of the University in discussions with the University, but simply because it is a campus organization. For that reason, we do not find these cases helpful except to the extent that they reflect the underlying purpose of sections 64 and 13, that a union and employer of the employees it represents or seeks to represent should be in an arm's length relationship and that the union is not formed in conjunction with the employer's interests or wishes. We have no doubt that this requirement is met by the parties in this case.

26. The University relies on the CIBC case, supra, however, where the UBE did not actively seek the Bank's support in the manner referred to above. Furthermore, in the CIBC case, supra, the issue was union solicitation during working hours and the University contends that it is justified in restricting UTSA's access to the internal mail system because the result of UTSA's using the service is that employees receive the mail during their workings hours; thus, in effect, solicitation by the union is occurring during working hours and therefore the University is entitled to control it.

27. In the CIBC case, supra , both the UBE and the Bank engaged in various conduct which was alleged by the other to constitute a violation of the Canada Labour Code. Of relevance here is the use of UBE of the Bank's internal mail system to distribute organizing materials; the Bank alleged that this was a contravention of the Code, section 185(d) of which states

28. 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;

(It is significant that no such prohibition exists under the Ontario legislation.) The purpose of sec­tion 185(d) is to avoid disruption of the employer's workplace; thus a union may solicit in the workplace, but not during working hours. The Board characterized the section as a "limitation on the scope of activity permitted to a trade union or a person acting on its behalf during an organiz­ing campaign" and compared it with the "basic freedom enjoyed by employees" codified by section 110(1) of the Code: "Every employee is free to join the trade union of his choice and to participate in its lawful activities"; an overly broad non-solicitation rule may run afoul of that right. (Section 110(1) of the Code is similar to section 3 of the Ontario Labour Relations Act.) The UBE used both external and internal mail systems, mailing a series of communications to individual employ­ees, the later ones of which contained the words "Read on your own time" on the envelope (the failure to include that caution on the first mailings was a significant factor in the Board's decision). Mail delivered to the Bank by Canada Post addressed to individual employees would normally be delivered to those employees by the Bank. In this instance, after delivering the first batch of mail to the employees, the Bank kept back the letters and informed the employees there was mail for them to pick up after they had finished work. The Bank followed a similar procedure with the let­ters sent through the Bank's internal mail system: it did not restrict actual use of the system. With respect to the use of the external mail system, the Board took the view that "[t]he attempt to per­suade cannot be said to be limited to the reading of the actual documentary material that eventu­ally finds its way into the hands of employees. It is all the actions of the union which are designed to bring to the attention of the employees the fact that the union was organizing and soliciting members. If these attempts take place during the working hours of employees, then there will be a violation of section 185(d)". The attempt to persuade "started the moment employees were made aware by the Bank during their working hours that the UBE had addressed envelopes to them at work". The Board found that "the use of the internal mailing system of the Bank cannot be said to be other than an attempt to persuade during working hours and constitutes a clear violation of sec­tion 185(d) by the UBE".

28. The UBE had also made "drops" of envelopes on employees' desks or chairs; although the drops were made prior to the commencement of regular working hours, there was "some ques­tion" about when the material was actually read; nevertheless, the Board did not find a violation of section 185(d) of the Code but did find that the Bank had violated section 184(1)(a) of the Code (the equivalent section to section 64 of the Ontario Labour Relations Act) by picking up the mate­rial before it could be found by the employees and by posting notices that the UBE's activity was subject to discipline. The Board indicated that the important point is that the drops were made before working hours and that the Bank could have stopped the employees' opening the material once the working hours had started and therefore could have stopped any disruption, should there have been any. It analogized this kind of solicitation to standing and handing out material outside the place of work: "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". The Board found that there was no intention "manifested by the manner in which the drops were made" that the material be read during working hours since the word "Personal" appeared on the face of the envelope (we note that that word also appeared on the external mail­ings and on the internal mailings that were individually addressed).

29. We have already noted that the UBE first began to use the mail system at the time of its organizing campaign. The second point to note about the applicability of the CIBC case, supra, is that the case really concerns solicitation by the union during working hours which constitutes a breach of a specific provision of the Canada Code; it seems clear from the Canada Board's consid­eration of the union's making "drops" of material that had the union ensured that the use of the internal mail did not involve solicitation during working hours, it might not have found a violation of the Code. In other words, the Canada Board's concern was not the use of the internal mail sys­tem in itself, but rather that the manner in which it was used resulted in solicitation during working hours. Here the University has never had any difficulty with personal material distributed and received during working hours being read during working hours; its concern about that practice has been raised only in conjunction with the distribution of CUPE's organizing materials.

30. The Ontario Labour Relations Act does not contain a prohibition against the union's soliciting during working hours; rather, section 71 of the Act simply indicates that the Act does not authorize solicitation in the workplace during working hours. The purpose of section 71 has been explained by the Board in The Adams Mine, Cliffs of Canada Ltd., Manager, [1982] OLRB Rep. Dec. 1767 (in which the majority dismissed the complaint under section 64 because the material distributed by the union was political and therefore not protected under the Act),

as afford[ing] an employer an answer to the charge that he has interfered with a person's rights under section 3 of the Act by preventing that person from attempting to solicit an employee dur­ing working hours. The section recognizes the employer's bona fide interest in maintaining an efficient business enterprise and the fundamental obligation of employees to work in return for compensation. But section 71 does not speak to activities outside of an employee's working hours while on his employer's premises.

There is not an absolute ban on soliciting during working hours. Jurisprudence under the Ontario legislation has developed a distinction between what is permissible and impermissible solicitation during working or non-working hours, as summarized in The Adams Mine case, supra, at para­graph 22:

(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 or a direction pursu­ant to section 11 [of the Act].

[emphasis added]

31. The operation of the non-solicitation during working hours rule was explored in Eaton's, supra. None of the entrances to Eaton's at the Eaton's Centre abutted public property, but rather opened onto the Eaton's Centre mall which is controlled and managed by Cadillac Fair-view. Union supporters therefore distributed material in the store during breaks and after work, but the union subsequently received a letter from Eaton's objecting to such distribution because of the disruption to work interfering with customers and creating a housekeeping problem and informing the union that it was denying union representatives access to the store and attendance at the store by representatives would be considered a violation of the Trespass to Property Act. Accordingly, the union distributed notices of a meeting outside the store doors to employees going into work. Security personnel from Cadillac Fairview informed the organizers that they were on Cadillac Fairview property and soliciting and distributing leaflets were prohibited. The union organizers subsequently engaged in various activities around the Eaton's doors, inside the store in the fast food area and in the mall area. Cadillac Fairview had a broad "non-discriminatory" non-solicitation policy; Eaton's itself had a restrictive solicitation policy: oral solicitation on the employer's premises in non-working hours was permitted; the distribution of literature was con­trolled, Eaton's taking the view that it can ban a distribution on its premises anywhere and any­time, but an employee could hand another employee a card or exchange literature at coffee; union issues could be discussed in the restaurants as long as such discussion is not the purpose for gather­ing in the restaurant. The union claimed it required access to employees in the store area because it had no other effective means of communication with the employees reasonably available to it, a factor the Board weighed in reaching its decision, along with the disruption to Eaton's business. The Board found that Cadillac Fairview and Eaton's were not strangers to one another and that in restricting access, Cadillac Fairview was satisfying the wishes of its client, Eaton's. The Board said it had not forgotten that Cadillac Fairview asserted that it imposed a "broad, non-discriminatory solicitation policy" in order to control activities in the mall, but that Cadillac Fairview could pro­vide no business purpose of its own which justified prohibiting organizers from standing at a spe­cific place outside Eaton's door in a public area of the Eaton's Centre before opening hours in order to hand out literature to or engage in conversation of section 64 of the Act. Eaton's restric­tion of the use of restaurant facilities to union business only as an incident to normal use of the res­taurants was acceptable. The Board ruled that mass distribution could occur in the store before opening hours, but only on a limited basis to accommodate Eaton's legitimate business concerns; in reaching this conclusion, it considered the other means of communication available to the union. It held that a "blanket" no-distribution rule in relation to the store, applying when the store it not open to the public and the employees are not working, is a contravention of section 64.

32. The University has permitted the distribution of all manner of communications through its internal mail system and has imposed no ban on the reading of such material during the employ­ees working hours. There is no indication that the receipt of organizing material during working hours has led to any disruption of the workplace. While the University has not allowed persons in opposition to the union to use the service to communicate their views or to organize, it cannot be ignored that the University took that action after it had restricted UTSA's use of the system. Fur­thermore, it appears that those persons would not have the same kind of access UTSA has, at least in the sense that they do not, as individuals, obtain labels from the University. Accordingly, we are not satisfied that the refusal of access to those persons is evidence of a non-discriminatory ban on the use of the system. The restriction of UTSA's use is discriminatory, however. Accordingly, it is not open to the University to base its decision to prevent circulation of organizing materials on its authority to control the use of work-time, because such conduct clearly constitutes a change in its normal practice.

33. Change in the employer's policy in response to an organizing campaign was considered by the Canada Board in American Airlines Incorporated, [1981] 3 Can. L.R.B.R. 90 in which the union alleged that the employer's refusal to allow union material to be placed in employees' mail boxes constituted a violation of the Canada Labour Code. Because of the nature of the employer's business, it had set up mail boxes or pigeonholes in order to communicate with employees; in addi­tion to the material placed there by the employer, a variety of other correspondence was put in the boxes, including blood donor appeals, personal notes, invitations, personal telephone messages, advertising for car rentals and political literature. The material left there was much the same as that distributed through U of T's internal mail system, except that it included advertising. Each employee was required to empty his or her pigeonhole before the start of his or her shift (we have already dealt with that distinction between American Airlines, supra, and this case). Employees at American Airlines had put union material in the mailboxes before the start of their shift or on their off time; the employer considered this an infraction of a company regulation which prohibited the use of company facilities "for purposes not directly related to Company business". (U of T. does not claim that any such restriction was ever intended with respect to the use of its service.) The Canada Board found that, although the regulation had been in place "for a number of years", it had not been enforced since the mail boxes, company facilities, had been used for personal mes­sages with the knowledge of the employer. Furthermore, there was no evidence of disruption in the workplace as a result of this use of the mailboxes and no reason to believe union literature would cause any greater disruption than other forms of literature. The Board concluded that "the employer's interdiction to forbid the distribution of union literature in the mail boxes is inconsis­tent with the administration of its policy regarding the distribution of literature and is thus discrimi­natory".

34. In summary, we find that the restriction by U of T of UTSA's enjoyment of an existing practice constitutes an interference with the rights of CUPE under section 64 of the Act. While a "stranger" to the U of T community may not be able to demand access to the internal mail system on its own behalf, CUPE may enforce its right under section 64 based on UTSA's use of the ser­vice since UTSA represents CUPE's supporters and CUPE's claim is based on its supporters' right to be treated as they were before its organizing campaign.

35. Accordingly, we hereby

(a) declare that the University has violated section 64 of the Labour Rela­tions Act; and

(b) direct the University to permit UTSA access to the internal mail service in the manner previously enjoyed.

36. CUPE seeks a posting in every department of the University and a mailing to all admin­istrative staff. No submissions were directed towards why we should grant these remedies - In the circumstances of this case, we are not satisfied that a posting and mailing would be appropriate.

37. CUPE requested a declaration that the "six month" rule not be applied to its member­ship evidence, but made no further submissions on this matter; nor did the University address it. We are of the view that that question is more properly a matter for the panel hearing the applica­tion for certification: the "six month" rule generally applies to the Board's discretion to direct a vote and we cannot bind another panel of this Board in the manner in which it should exercise its discretion. We therefore decline to comment further on this matter.

DECISION OF BOARD MEMBER JAMES A. RONSON;

This is a case in which my colleagues depart from the long-tested and long-applied rules" of the Board concerning employer interference with the formation of a trade union. It is a case that advances the premise that, in certain situations, an employer is obligated to provide sup­port to employees who may support or who may oppose the formation of a trade union. I cannot agree with that premise, for to do so is to stand each of the following cases of the Board on its head:

Kenora District Home for the Aged, [1960] OLRB Rep. Apr. 28;

Queen Elizabeth Hospital (Toronto), [1961] OLRB Rep. May 39;

Canadian Home Products Limited, [1961] OLRB Rep. Aug. 158;

Burlington Nelson Hospital, et al, [1962] OLRB Rep. Nov. 285;

Scott Haulage Limited, [1963] OLRB Rep. Jan. 422;

Gillies Bros. & Co. Limited, [1964] OLRB Rep. Dec. 420;

Drywall by Jamieson, [1965] OLRB Rep. May 99;

Kemp Products Limited, [1966] OLRB Rep. Apr. 39;

Crowe Foundary Limited, [1969] OLRB Rep. May 218;

Microdent Laboratories Ltd., [1969] OLRB Rep. Oct. 852;

Coons Heating & Sheet Metal Limited, [1978] OLRB Rep. June 526;

Ado Compounders Inc., [1979] OLRB Rep. Sept. 845;

Fautless-Doerner Manufacturing Inc., [1980] OLRB Rep. Feb. 214;

Square D Canada Electrical Equipment Inc., [1980] OLRB Rep. Sept. 1324;

Tri-Canada Inc., [1981] OLRB Rep. Oct. 1509;

The Adams Mine, Cliffs of Canada Ltd., Manager, [1982] OLRB Rep. Dec. 1767.

2. The evidence discloses the following:

(a) the internal mail service is the property of the University, the use of which is a privilege granted by the University;

(b) no individual has been given the privilege of using the internal mail system;

(c) the UTSA cannot claim the protection of section 64 of the Labour Relations Act;

(d) the effect of the decision of the University is to curtail membership

solicitation and distribution of union material during working hours, and thus does not contravene section 64;

(e) the decision of the University was consistent with its obligation under section 64; and

(f) CUPE is attempting to ride the coat-tails of the UTSA and obtain a benefit which is not available to those individuals who may oppose it. Each time a CUPE item is "mailed" through the system a benefit of at least $.37 is received by CUPE. At least 30,000 items have been delivered to employees on behalf of CUPE.

3. The simple answer to the issue before us is found in section 64 of the Act. That section tells employers that they never have to act as agents of a trade union. When CUPE seeks to use the University's property, the internal mail system, then the obligations under section 64 take effect. The employer is obligated not to interfere in the debate. The use of the internal mail system must be denied to both the proponents and opponents of CUPE.

4. The UTSA has no status before the Board as a trade union under the Act. In that respect it is no different from any staff committee or association that we often find in the work­place. Having no status before us, the UTSA is unable, on its own account, to enforce any rights under section 64 of the Act. That is why CUPE brings this complaint on behalf of Mr. Askell, an individual, and not on behalf of the UTSA. The problem for CUPE is that Mr. Askell has no right to mailing labels or to use the internal mail system. Only UTSA (whatever it may be) has been granted that privilege by the University.

5. Since the UTSA differs in no way from any other group of employees in the workplace, the fact that this group calls itself the UTSA must be irrelevant to their right to have CUPE apply for certification on their behalf. To say otherwise is to call into question before us the nature of the UTSA (i.e. who are its members and what support does the employer give it), which information may be detrimental to the certification application of CUPE. The knife cuts both ways.

6. The reasoning of my colleagues also cuts both ways in that it gives new rights to those who oppose the formation of a trade union or to those who wish to replace their existing union with a new one. If the UTSA was opposed to CUPE, then it could use the internal mail system to circulate its views, and neither the employer nor CUPE could complain. The labour relations com­munity will immediately compile a long list of decision-making problems for the Board with regard to issues which the community had rightly thought were "put to bed" in earlier decisions of the Board.

7. I would enforce the simple wording of section 64 and section 71 of the Act. I would make the employer play a neutral hand in this game of choice. I would dismiss this application.