Southern Ontario Newspaper Guild, Local 87 of the Newspaper Guild v. Toronto Star Newspapers Limited, 1988 CanLII 3733

[1988] OLRB Rep. September 987

1876-85-U Southern Ontario Newspaper Guild, Local 87 of the Newspaper Guild, Complainant v. Toronto Star Newspapers Limited, Respondent

BEFORE: Harry Freedman, Vice-Chair, and Board Members I. M. Stamp and P. V. Grasso.

APPEARANCES: H. Goldblatt, S. Liang and John Bryant for the complainant; Derek L. Rogers, Ian Werker, C. J. Davies, Peter Dawson and Kare Grant for the respondent.

DECISION OF THE BOARD; August 31, 1988

1. The complainant, hereinafter referred to as the Guild, and the respondent, hereinafter referred to as the Toronto Star, have had a collective bargaining relationship since 1949. The Guild complains that the Toronto Star violated various sections of the Labour Relations Act by issuing written communications to its employees setting out the Toronto Star's position with respect to the negotiations that were taking place with the Guild about the renewal of the collective agreement which had expired on July 31, 1985. Those negotiations were ultimately successful with the parties entering into their 27th collective agreement in November 1985.

2. The negotiations began in July 1985. A conciliation officer was appointed by the Minis­ter of Labour on September 19, 1985 at the request of the Guild. The conciliation officer met with the parties three times. On October 11th, the Guild asked the conciliation officer to issue a "no board report". On October 25, 1985 the Minister informed the parties that he did not consider it advisable to appoint a conciliation board. The parties had met 13 times prior to the release of the no board report.

3. From August 1985 and throughout the negotiations, the Guild issued bargaining bulle­tins to keep its membership informed about the progress of the bargaining. John Bryant, Executive Officer of the Guild and the chief spokesman of the Guild's bargaining committee, explained that the Guild's bargaining committee decided on the timing and content of the bargaining bulletins.

4. The Guild also issued documents entitled "Bargain Hunter" later in the negotiations. The Bargain Hunters were prepared by a publicity committee created to assist the bargaining com­mittee. Mr. Bryant testified that the publicity committee checked with the bargaining committee when writing the Bargain Hunters, but the bargaining committee did not actually review the Bar­gain Hunters before they were issued.

5. The Toronto Star issued what it referred to as "Management Reports" three times dur­ing the negotiations. Its first Management Report was issued on October 21, 1985, two days before a scheduled mediation meeting. By that date, the Guild had issued several bargaining bulletins, most of which contained, in the opinion of the Toronto Star and an opinion which we believe was not unreasonable, several exaggerations, omissions, and in some cases actual misleading state­ments.

6. We need refer only to some examples in the material published by the Guild. In bar­gaining bulletin #6, headlined "Star is Still Arrogant", the Guild wrote:

"We struck the Star in 1983 on the issue of fairness and won. In the curr.~nt round of negotia­tions it's still among our key concerns at the bargaining table.

One of the ways we are trying to address it is by instituting some respect for seniority at the Star because frankly it's the only effective alternative to the present coercion of employees by the all too frequent use of scheduling, promotions and job selection as a disciplinary tool.

But when we present our needs to the Star they're dismissed with arrogant truculence. 'I think the union is aware just how negatively we view any of their concerns front the point of view of seniority bidding (sic),' Davies said on Tuesday, even before he'd read a newly rewritten version of our seniority language.

"We aren't going to agree," Davies blustered. "If they're going to push us down that road there are going to be difficult times ahead," he declared. What is the spectre of seniority that haunts Davies, that he's blamed for the demise of both the British empire [sic] and the Toronto Tele­gram? Nothing more than a childishly simple 9 point proposal to establish seniority lists at the Star. Of course we hope the lists will achieve more than tell you how long you've worked at the Star.

We'd like to see seniority become one of the factors taken into account whzn an employee seeks a promotion; as a basis for establishing some more permanent shifts in editorial where several senior employees are already accorded the right of seniority; in bidding for runs in the delivery department; and to end some of the woes of outside circulation we're proposing that vacant positions are bulletined and seniority determines who fills them. So seniority lists are vital in establishing a defense against present arbitrary and manipulative management practices."

7. Mr. Bryant, in cross-examination, conceded that seniority was a factor in the expired collective agreement with respect to vacations, vacation timing, choice of shift in the delivery area, selection for trial periods for promotion, and staff reductions. Mr. Biyant also conceded that the collective agreement language dealing with promotion was principally a skill and ability competi­tion among applicants for a posted job with seniority a factor, albeit relatively low in respect of the attributes considered by the Toronto Star for a promotion. Mr. Bryant also agreed that only two grievances were filed out of the 132 job postings under the Guild's collective agreement. Addition­ally, the "childishly simple 9 point proposal to establish seniority lists" referred to in bargaining bulletin #6 was a detailed two-page document which, among other things, proposed the creation of seniority groups within the bargaining unit based on pay groups. It became clear from the evidence of Mr. Bryant that the Guild's seniority proposal was a complex concept involving a substantial change from the seniority scheme which existed under the recently expired collective agreement.

8. Bargaining bulletin #6 also stated:

"The Star made a record $47.2 million in profits last year, but that's not prevented mean spirit­edness from entering its proposals. It wants to end its commitment to full support of OHIP and its 50 percent share of Blue Cross payments by freezing its contributions at July 31 levels."

Mr. Bryant maintained that that statement was fair, but agreed in cross-examination that the Toronto Star paid a 90% share of Blue Cross, and not 50%. Mr. Bryant did ultimately agree that the statement should have been "more accurate".

9. That bulletin also stated:

"The Star also wants the right to have its hand in the pocket of disabled workers by demanding a share of any compensation Star employees, the victims of accidents, w:tn from third parties. The amount would cover payments made under the Star's disability plan.

Think it's a bad joke? In bargaining Davies has said that if the Star doesn't get its way he'll cut off the wages of the disabled."

The Toronto Star's proposal was intended to allow it to seek recovery from a third party for the benefits that the Toronto Star paid to an employee who was injured in an accident. In effect, the Toronto Star was seeking to end the situation where an employee would be paid benefits by the Toronto Star as reimbursement for loss of wages and also recover a loss of wage claim from the third party who caused the employee's loss. Mr. Bryant said he could not remember Chris Davies, the Star's spokesman in negotiations, ever having said that he would "cut off the wages of the dis­abled" employees and agreed in cross-examination that if such a statement had not been made, then it should not have set out that way in the bulletin.

10. Peter Rickwood, a member of the Guild's executive and an editorial department repre­sentative on the bargaining committee, wrote many of the bargaining bulletins issued by the Guild. He explained that he wrote bulletin #6 and it was reviewed by the entire bargaining committee.

11. With respect to the seniority issue, Mr. Rickwood did not disagree in cross-examination that Mr. Davies' comments with respect to seniority related to job bidding based on seniority although Mr. Rickwood had the impression that Mr. Davies was referring to seniority generally.

12. Mr. Rickwood also indicated in cross-examination that Mr. Davies had not said any­thing about cutting off wages, but rather Mr. Rickwood's notes of the meeting made a reference to benefits. Mr. Rickwood also agreed in cross-examination that the discussion related to the Toronto Star seeking to recover the wages the Toronto Star paid to an injured employee was explained by Mr. Davies as having the Toronto Star sue the third party who caused the injury by having it join in the employee's action to recover the wage loss claim from that third party.

13. Mr. Rickwood also agreed that the tenor of the bargaining bulletins issued by the Guild to its members was derisive of the Toronto Star and was intended to convey to the employees the sentiments of the bargaining committee.

14. The Management Reports issued by the Toronto Star set out its position with respect to many of the issues raised by the Guild in bargaining and were positions that had been conveyed to the Guild's bargaining committee prior to publication. The Toronto Star's first communication to its employees was responsive to the issues raised by the Guild at the bargaining table and in the Guild's bulletins to its members. That first Management Report dealt in detail with the Guild's seniority proposal, set out the agreed-upon health and safety language, commented upon other issues and also responded to the following comment set out in a Guild bulletin which Mr. Rick-wood had written and which he agreed was intended to be derisive of the Star:

"Applying the logic of an overseer of a Victorian workhouse for the poor, Jolley wants us to appreciate the quality of the working environment (new paint etc.) and the Star's 'more forcible dealings with employees' needs' when we go cap in hand. As well as the monetary offer the Star's offer also gave the boot to seniority, Sunday double pay and a contentious proposal to grab compensation awards from disabled Star employees is back to haunt us.

The Toronto Star's Management Report contained the following statement:

"From Guild Bargaining Bulletin #7 "a contentious proposal to grab compensation awards from disabled Star employees ..." The Star is suggesting that if an employee is disabled and prevented from working as a result of an accident for which a third party is responsible, the employee who has received (and will continue to receive) disability benefits from the Star should be willing to reimburse the Star for the amount of those benefits if that money is retrieved from the third party who is responsible for the accident."

15. The Toronto Star also issued a second Management Report setting out its position on the Guild's comprehensive response to the Toronto Star's offer of October 11, 1985. That report accurately described the position the Toronto Star had taken with the Guild's bargaining commit­tee at the mediation meeting of October 23, 1985. That report was issued on October 24, 1985 and indicated that the Toronto Star had moved on a number of issues. During the course of the Octo­ber 23rd mediation meeting, the Guild had not raised any concern, and indeed had made no refer­ence to the one error in the first Management Report that the Toronto Star had issued on October 21st.

16. The Toronto Star knew, by reason of earlier Guild bulletins, that the Guild had called a meeting of its members for October 27th for the express purpose of obtaining a strike mandate from its membership. The Toronto Star did not advise the Guild during the mediation meeting of October 23rd that it would issue a Management Report outlining its position, nor did the Guild advise the Toronto Star that it was about to release a tabloid-size publication entitled Bargain Hunter carrying the date of October 23, 1985 on its masthead. The Bargain Hunter tabloid, which had been written several days before the bargaining meeting of October 23, did not reflect the Star's changed position. It also was written in the same manner and tone as the earlier bulletins and also contained several inaccuracies about the Star's position that had been tabled prior to the October 23rd meeting. Mr. Rickwood agreed that the Bargain Hunter tabloid of October 23, 1985 was not simply reporting, but rather contained opinions of the writers who were trying to get the Guild's members to support the bargaining committee. Although the Guild considered issuing an update to the October 23rd Bargain Hunter, it decided not to because the bargaining committee would explain its position and the Toronto Star's response to the members attending the meeting of October 27th.

17. The Toronto Star also issued a third Management Report on November 8, 1985 accu­rately outlining the terms of the offer that the Toronto Star had made to the Guild's bargaining committee shortly before the time that a legal strike or lockout could commence.

18. Between October 21, 1985, the date of the first Star Management Report and the ratifi­cation of the collective agreement, the Guild issued several bulletins entitled Bargain Hunter dis­cussing various issues in dispute in negotiations. The Star issued its second Management Report after the mediation meeting on October 23, 1985 and a third management report on November 8, 1985. There was no other attempt by the Toronto Star to communicate with its employees during the bargaining period.

19. The Toronto Star and the Guild have had a history of issuing communications to employees represented by the Guild for many years prior to 1985. Mr. Bryant testified that he complained about the Toronto Star's practice in the past, and had lodged an unfair labour practice complaint before the Board previously, but had not proceeded with it. Mr. Davies testified that the Toronto Star does not communicate in the same way with its employees in the other bargaining units represented by different craft unions because those unions do not make ongoing reports of negotiations, but wait until a final proposal is made at the bargaining table. The Guild, on the other hand, reports on positions taken during the negotiations, whether finalized or not, and in Mr. Davies' experience, the Guild's reports of the Toronto Star's positions are not always accu­rate.

20. Mr. Davies explained that the Toronto Star issued its first report on October 21, 1985 to provide the employees with information on the company's positions arid also to clarify the mistakes and distortions which the Toronto Star believed were contained in the Guild's bulletins. The Toronto Star issued its second report because it knew that the Guild meeting of October 27th was going to be used to give the bargaining committee a strike mandate. The Toronto Star wanted its employees to know what its position was on the issues before that meeting. Mr. Davies was not aware that the Bargain Hunter dated October 23rd was going to be released, nor was he aware of its content.

21. Prior to the issuance of the third report, the Toronto Star advised the bargaining com­mittee that such a document would be issued. Mr. Bryant, on behalf of the Guild, was incensed that the Toronto Star was going to apprise employees about the final offer made to the Guild's bar­gaining committee. Mr. Davies was of the view, based on the bulletins that had been issued by the Guild, that the Toronto Star's position would not be fairly put to the employees.

22. Mr. Davies, at the meeting with the Guild of November 7th where he presented the Guild with the Toronto Star's final offer, thought that there would be a strike because there were several issues remaining in dispute of which at least four were issues on which the Toronto Star would take a strike. Mr. Davies testified that he wanted the employees to know what was remain­ing in dispute between the Guild and the Toronto Star if they were going to go on strike. Mr. Dav­ies also stated that he did not wish to bargain with individual employees and understood and respected the role of the Guild as the employees' bargaining agent, but believed that as an employer, he had a right to ensure that employees had sufficient and accurate knowledge of the issues in dispute before deciding whether to engage in a strike. Mr. Davies did concede, however, that even if the Guild had been entirely factual, he would still want the opportunity to communi­cate with employees.

23. The Guild's position, as expressed by Mr. Bryant during his testimony, is that it is the Guild's responsibility to communicate with its members about collective bargaining issues and that the Toronto Star's obligation is to communicate with the bargaining committee, and not the Guild's membership. Communication with the employees on bargaining issues is nothing more than an attempt to usurp the function of the bargaining committee. Counsel for the Guild submit­ted that the Toronto Star was, through its communications, competing with the Guild to attract the members' attention for the purpose of having the members repudiate their bargaining agent. Counsel pointed out that the Toronto Star's reasons for communication with its employees were to clarify and correct misrepresentations and provide the employees in the bargaining unit with full information so that those employees could make their decision based on all the necessary facts, and not just on what the Guild told the employees. Counsel argued that the Toronto Star, in not so subtle a fashion, was actually telling the Guild's members not to listen to the Guild because the Toronto Star was telling the truth and the Guild was not. Counsel also pointed out that the Toronto Star's second Management Report was not responsive to the errors or misrepresentations in the Guild's first Bargain Hunter because the Toronto Star was unaware of what the Bargain Hunter contained when it issued its second Management Report.

24. The complaint about the Toronto Star's conduct can only be sustained if the Board is satisfied that the Toronto Star contravened sections 64 and 67 of the Act. There was no evidence to support a finding that the Toronto Star, through its communications, acted contrary to either sec­tion 66 or 70 of the Labour Relations Act and therefore, the complaint is hereby dismissed insofar as it alleges a violation of those two sections of the Act. If we are satisfied that the Toronto Star, through its communications, attempted to bargain directly with its employees, such conduct would also establish a violation of section 15 of the Act.

25. Sections 64 and 67(1) of the Act provide:

"64. No employer …… shall participate in or interfere with the formation, selection or administra­tion of a trade union or the representation of employees by 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.

67.-(1) No employer ... shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any per­son or another trade union or a council of trade unions on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them."

26. In A. N. Shaw Restoration Limited, [1978] OLRB Rep. May 393; [1978] Can LRBR

214, the Board discussed the relationship between a union's right to act as the exclusive bargaining agent on behalf of the employees it represents set out in section 67(1) of the Act with an employ­er's right to express its views set out in section 64. The Board wrote at page 398:

"To what extent can an employer communicate with its employees during the negotiating pro­cess? The scheme of the Act contemplates that the acquisition of bargaining rights by a union carries with it an exclusive license to bargain on behalf of the employees in its bargaining unit. The exclusivity of the unions [sic] bargaining rights is expressly protected by section 59, [now 671 which reads:

This section prohibits employers from bargaining directly with employees represented by a bar­gaining agent, and rival unions from bargaining on behalf of such employees.

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

27. In The Citizen, [1979] OLRB Rep. Mar. 177; [1979] 2 Can LRBR 251, the Board also reviewed the propriety of employer communication in the context of a long-established collective bargaining relationship at 201-202:

"Counsel's complaint about The Citizen's statements of July 19th, and the statements contained in its July 24th offer, raise again the issue of the propriety of an employer communicating directly with its employees during the course of negotiations. The question of the extent to which an employer may engage in such communications was fully canvassed by the Board in A. N. Shaw (supra). In that case the Board stated that although employers must be circumspect when communicating with their employees, especially during negotiations. not all communica­tions between employers and employees are prohibited by the Act. Section 56 [now 64], prohi­biting employer interference with the formation, selection or administration of a trade union, or the representation of employees by a trade union, expressly provides that this very general pro­hibition does not 'deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats or undue influence'. It is only when communications between employer and employees go beyond the bounds of legitimate freedom of expression and encroach upon the union's exclusive right to bargain on behalf of its employees that they become illegal. Such communications become illegal only when they represent, 'in reality', an attempt to bargain directly with employees. Direct bargaining with employees is expressly pro­hibited by section 59 [now 67] of the Act.

In deciding whether an employer's communications to its employees can in reality be character­ized as an attempt to bargain directly with them, the Board examines not only the nature of the particular communications complained of, but also the particular bargaining context in which those communications occur. Of particular importance is the timing of the communications, i.e., whether they occur early in the negotiations or late.

By contrast with the situation in A. N. Shaw, the communications complained of here were not issued until after the parties had engaged in discussion of all issues in dispute. They did not occur until almost two months from the beginning of negotiations, and until the employer had committed itself to presenting to the other unions a proposal for settlement.

By contrast also with the situation in Shaw, the communications here do appear as an attempt by the employer to explain its bargaining position and as an attempt to set the record straight -by dispelling the notion that its objective in bargaining was to isolate the Guild. Moreover, the employer did not, here, as it did in Shaw, take it upon itself to disparage the union's proposals or its bargaining committee. Indeed, any disparagement of proposals and committees appears to have been undertaken by the union. The Citizen did express its concerns about the 'climate of confrontation' which it saw developing, as well as it [sic] resolve not to compromise on what it perceived as its right to run its newspaper. But in the instant context those expressions fall well within the protection afforded to employers by section 56.

Nor should the employer's statements have been regarded by employees as disparaging either their union or its proposals. As stated at the outset the parties have a long-standing bargaining relationship and one which The Citizen cannot hope, in the foreseeable future, to end. As noted, the preamble to The Citizen's proposal to the Guild concluded with a pledge to live up to the new agreement and a wish for better relations in the future. In its proposal for settlement of 1976, The Citizen stated that relations with the Pressmen had not been good. In its 1978 pro­posal, The Citizen expressed the view that those relations had improved considerably."

See also American Can Canada Inc., [1983] OLRB Rep. Oct. 1609.

28. The Board in Globe Spring & Cushion, [1982] OLRB Rep. Sept. 1303 found that employer communication violated the Labour Relations Act when it wrote at 1312:

"In the present case it cannot be said that management was merely attempting to explain its bar­gaining position to the employees, to set the record straight by clearing up a perceived misun­derstanding on the part of employees, or to otherwise lawfully exercise its right of freedom of speech. The employee initiated discussions became, through the reactions of management, a bargaining session at which proposals and counterproposals were exchanged on a number of sig­nificant issues on June 14th. Although management met with the Union later that day, it met directly with the group of bargaining unit employees again on June 15th, and arranged for an informal employee 'vote' to be taken concerning Globe's proposal on the following day.

While Malcolm Marcus may have initially advised the employees on June 14th that Globe could only bargain with the Union which was their legal bargaining agent, it is apparent that neither he nor his father adhered to that position. By bargaining directly with employees, management sought to weaken the Union's bargaining strength by obtaining a commitment from individual bargaining unit employees to support particular settlement proposals, in the formulation of which they had been directly involved. While the initial approach was made by a group of employees who were concerned about the lack of progress in negotiations between the Union and Globe, management improperly utilized the overture as a basis for engaging in illegal direct negotiations with bargaining.

Management's direct bargaining with those employees contravened not only sections 64 and 67 of the Act, but also section 15. A very important function of the bargaining duty contained in that provision is reinforcement of an employer's obligation to recognize a trade union selected by employees as their bargaining agent (see, DeVilbiss (Canada) Limited, supra, and the authorities referred to in that decision). Attempts by an employer to bargain directly with his employees undermine that obligation and, therefore, are antithetical to good faith collective bargaining and the duty to make every reasonable effort to make a collective agreement. Although cases in which section 15 is called upon to play that reinforcing role generally occur in 'first agreement' situations, they can also arise in the context of negotiations for renewal of a collective agreement."

29. See also Forintek Canada Corp., [1986] OLRB Rep. Apr. 453, 14 Can LRBR (NS) 1 where the Board wrote at 474:

As with s.15, the purpose of s.67(1) and one of the purposes of s.64 is to reinforce both the obligation to recognize the trade union's bargaining rights and the prohibition against the use of economic power to undermine those or any other statutory rights associated with collective bar-gaming. As the language of s.64 reflects, these purposes can be achieved without enjoining all employer communication with employees. Nevertheless, any assessment of the scope of the freedom of expression reserved to employers by s.64 must be sensitive to the labour relations context in which it is made and must strike a balance between that freedom and the freedom to associate which these and other provisions of the Act are intended to protect: (see NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) at 617). The employer's freedom to communicate with employees cannot be used to undermine the trade union's bargaining role: Radio Shack, supra, at para. 75 and A. N. Shaw Restoration Ltd., [1978] OLRB Rep. May 393 at para. 18.

In assessing whether employer communications during or in relation to collective bargaining go beyond the bounds of permitted speech into the realm of prohibited interference, the Board has considered whether they reflect an attempt to explain the position the employer has taken at the bargaining table or, rather, an attempt to disparage the union or its proposals. The Board looks at the context, content, accuracy and timing of employer communications in discerning their purpose and effect. Communications made after good faith bargaining has reached an impasse are less suspect than those made during early stages of bargaining, accurate statements are less suspect than inaccurate ones and, in any event, communications of explanations or positions not first fully aired at the bargaining table are highly suspect: A. N. Shaw Restoration Ltd. at paras. 19 to 22, and The Citizen, [1979J OLRB Rep. Mar. 177 at paras. 57 to 64; and see Fruehauf Trailer Co. of Canada Ltd., [19751 OLRB Rep. Jan. 77; Canada Cement Lafarge Ltd., [1980] OLRB Rep. Nov. 1583; Globe and Mail, [1982] OLRB Rep. Feb. 189."

30. Mr. Bryant's view that only the Guild should be advising employees about the bargain­ing taking place with the Toronto Star was similar to the position taken by the union in Canadian Pacific Airlines (1985), 10 Can LRBR (NS) 62. In that case, the Canada Labour Relations Board wrote at page 82:

"The proposition advanced by Mr. Keras that the union should be the only medium of commu­nication to employees of company and union positions in collective bargaining was not men­tioned or pursued by union counsel in argument. In any event, it could not stand up in the light of the realities of employer union relations and collective bargaining and in the face of the juris­prudence of this and other boards that employers may communicate directly to employees within limits. The question for this Board to decide is whether in this case those limits were exceeded. To do so, we have to examine the context of the communications, the communica­tions themselves and whether they could reasonably be expected to have a detrimental effect on the interests of the union and its members in terms contrary to s. 184(1)(a)."

and later at page 84:

"Employer 'interference' with the administration of a union or the representation of employees by a trade union occurs where that which the employer does constitutes meddling in things that are really none of his business, to the detriment of the union. In this case, the process of collec­tive bargaining, the making of a collective agreement, the possibility of a strike, are all matters in which the employer has in theory just as much at stake as the union and the employees. To communicate accurately about his position in connection with things that are crucial to him without undermining the authority of the union as the exclusive bargaining agent for the employees is not interference as it was contemplated by the framers of s. 184(1)(a)."

31. A similar view was expressed by the Saskatchewan Labour Relations Board in Canada Safeway, (1985), 11 Can LRBR (NS) 68 at page 81:

"The Board has held that employers may communicate with their employees on matters being collectively bargained so long as the employer is not in reality attempting to circumvent the union as their exclusive bargaining agent and so long as the communications would not likely be intimidative, coercive or threatening to an employee of average intelligence. An employer does not bargain directly with his employees, or fail to negotiate in good faith with the union, simply because he informs employees of his version of negotiations

32. In Saskatchewan Liquor Board, 85 CLLC ¶16,029, the Saskatchewan Labour Relations Board found a violation of the Trade Union Act because the employer's communication were found in reality to be attempts at bargaining directly with employees. The Board in that case wrote at page 14,203:

"The Board cannot attempt to precisely define the limits of an employer's right to communicate with its employees in a way that can be easily applied to every situation. Each case obviously depends on its own facts. Suffice it to say that an employer fails to bargain in good faith and abuses his right to communicate with his employees if his communications become a substitute for a continuing attempt to conclude a collective agreement at the bargaining table with repre­sentatives of the union.

The volume, frequency and timing of the communications in this case were such that in the Board's opinion the real forum of debate and negotiation was at times transferred by the employer from the bargaining table to the workplace. The end result was that on those occa­sions the employer complied in form only with its obligation to carry on negotiations with repre­sentatives elected or appointed by the union."

33. The communications by the Toronto Star in this case were undertaken only after the Toronto Star's position had been given to the Guild across the bargaining table. The communica­tions were carried out in circumstances where there has existed a long-standing collective bargain­ing relationship, where both employer and union communications have taken place during the lat­ter stages of bargaining, where the Guild had already engaged in extensive communications and where there was a mutual expectation that such communication would again take place. The Toronto Star's communications were, but for one exception, entirely accurate and did not, in our view, seek to disparage or undermine the Guild. It seems to us that the Toronto Star was express­ing its view on the progress of bargaining, the issues remaining in dispute and its position on those issues. While the timing of the Toronto Star's second Management Report, issued the morning after the mediation meeting of October 23, 1985 and before the Guild had had a reasonable oppor­tunity to disclose to its members the results of that meeting, does cause us some concern, neverthe­less, we are persuaded that the communications in their entirety neither explicitly nor implicitly suggested to the employees that they could negotiate directly with the Toronto Star, nor did the communications in any way seek to have the employees reject the Guild as their bargaining agent. Rather, the communications clearly indicated that the Toronto Star was negotiating with the Guild.

34. Since the Act expressly authorizes employers to communicate with employees, and at the same time protects the right of the employees' bargaining agent to exclusively represent employees in collective bargaining, a balance of those two often competing rights must be estab­lished. An employer clearly cannot circumvent the employees' bargaining agent by negotiating directly with its employees under the guise of communicating with employees. Nevertheless, an employer is free to explain to its employees its position with respect to the collective bargaining negotiations after having engaged in collective bargaining with the employees' bargaining agent on the matters that are the subject of the communications. The nature, timing and circumstances of such communications must all be assessed to determine whether what appears to be permissible is actually improper. In our opinion, when making that assessment, the Board's comments in Fruehauf Trailer Company of Canada Ltd., [1975] OLRB Rep. Jan. 77 at 83 are certainly relevant:

"As a general matter the Board must be very careful not to insert itself, without hesitation, into the bargaining process as a censor of the communications between parties engaged in this often emotionally charged exercise. A more intrusive approach would provoke disruptive litigation over what is essentially unavoidable human nature. Furthermore we believe that reasonable employees and diligent trade unions have little difficulty evaluating and responding to most of the isolated direct communications that may occur during collective bargaining."

35. In our opinion, the Toronto Star's communications with its employees did not violate sections 64 and 67 of the Labour Relations Act and were well within the bounds of permissible employer communication with employees during collective bargaining that is explicitly permitted by section 64 of the Act. We are also satisfied that the Toronto Star carried on collective bargain­ing with the Guild, and did not, through its communications, attempt to negotiate with its employ­ees directly.

36. For the foregoing reasons, this complaint is hereby dismissed.