United Food and Commercial Workers' International Union, Local 1000A v. Sobeys Inc., 1992 CanLII 6304

[1992] OLRB Rep. September 1020

0429-91-U United Food and Commercial Workers' International Union, Local 1000A, Complainant v. Sobeys Inc., Respondent

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. M. Sloan and K. Davies.

APPEARANCES: Mary Hart, Cindy Jones, Jackie Lease, Chris Taylor, Lynne Taylor and Kevin Corporon for the complainant; Karin A. McCaskill, David Fearon, Timothy Gingrich, Bruce Wood for the respondent.

DECISION OF VICE-CHAIR K. G. O'NEIL, AND BOARD MEMBER K. DAVIES; September 16, 1992

1The name of the respondent is amended to read: "Sobeys Inc.".

2This is a complaint under section 91 of the Act that the respondent has breached sections 3, 65 [formerly 64], 67 [formerly 66] and 71 [formerly 70] of the Labour Relations Act Act in firing, demoting and disciplining a number of employees at its Stratford grocery store. The respondent asserts that no part of its motivation in any of the actions complained of was anti-union, and thus the complaint should be dismissed in its entirety.

3The hearing of this matter consumed nine days of hearing, during which we heard the evidence of 13 people. For the respondent, these were Timothy Gingrich, Personnel Supervisor, Ontario Division, Dean Bratton, Grocery Manager at the Stratford store, Bruce Wood, Store Manager, Gloria Martin, Front End Manager, David Fearon, Director of Human Resources, Barry Hagan, Vice-President, Retail Operations for Ontario, John Lynn, Senior Vice-President, Employee and Corporate Affairs, Sue Comley, Deli Manager, Brian Sippel, Night Crew Manager, and Tirri Favacho, Dairy and Frozen Food Manager. For the union, these were grievors Jackie Lease, formerly Assistant Front End Manager, Cindy Jones, formerly part-time deli clerk and Chris Taylor, formerly part-time cashier and office clerk.

4A summary of the evidence pertinent to our decision follows in roughly chronological order. Where the facts were in dispute we have noted any necessary resolution of those disputes.

5The respondent Sobeys runs about 125 grocery stores in six provinces; the roots of its 85 year history and its head office are in Nova Scotia. In the past four years, it has started operating in a number of locations in Ontario, including Stratford where it opened a store in early 1990. There are approximately 135 employees at the Stratford store.

6The respondent prides itself on its good employee relations practices, which include the fact that upper management keeps in close touch with the store floor by regular visits and conversations with employees at all levels. These include communications meetings with employee representatives. There had been three such communications meetings in the Stratford store between its opening in early 1990 and the fall of 1991. Evidence indicated that less than 5 percent of Sobeys' 14,000 employees are unionized. A number of management witnesses made reference to their belief that the reason for the low rate of unionization is the success of its open communication policy, together with competitive wages and benefits.

7Management was aware of attempts to inform employees about unionization or sign cards at all of its Ontario stores. Company witnesses said they took no action about it, other than asking managers if there were any outstanding issues that should be resolved. Wood, the Stratford Store Manager had heard rumours of union activity from the first week the store opened and specific names of individuals interested sometime before March 1991. He said that, in the end of February, 1991, he was told by Gloria Martin, the Front End Manager that she had been told that Chris Taylor had attended a union meeting. He learned that the source was Jacquie Lease after he had found an organizing list which is at the centre of this dispute. Wood testified that he had heard that Taylor was at a union meeting from two managers, Martin and Sue MacIntosh, Bulk Food Manager and that after he found the organizing list on March 27 he told Personnel Supervisor Gingrich about this.

8Although Martin says Lease approached her with the information about Taylor, Lease maintains that, sometime in the end of February or the beginning of March, Martin brought up the subject of unions and asked her if she had heard any union talk. In cross-examination, Lease said she felt there was nothing wrong with Martin's having asked her that. Both agree that Lease told Martin that there was something she felt she should tell her. Martin says that the information that followed was that Chris Taylor was going to a union meeting, and that what she told Wood was that Taylor had been asked to go to a union meeting. By contrast, Lease says she told Martin that Karen Ritchie, a meat wrapper, had asked Chris Taylor to attend a meeting and she had declined. On cross-examination Lease said that she thought she should tell Martin this because of her position in the company - that it was her duty as Assistant Front End Manager. At that point in time Lease was not herself involved in union activity. Later she said that it was because Taylor had not gone that she told Martin, and she did not feel any obligation to tell Martin about her own or other union involvement later. To make sure it was repeated correctly, Lease says she told Martin that if she was going to Bruce with this she wanted to be there. By contrast, Martin says Lease specifically asked her to go to Bruce Wood with the information. Taylor testified she had been invited by Karen Ritchie sometime in February to go to a union meeting, but that she did not go because she was never advised of the place and time. In the end, little turns on the different versions of this encounter and we find it unnecessary to resolve the inconsistencies.

9On March 4, shortly after Wood heard about Taylor in association with a union meeting, he had a meeting with her and Martin about another employee, Linton. In the course of discussing this matter, Martin told Taylor she was very pleased with her performance, that she just needed to have more confidence. After they had discussed Linton, Wood, “out of the blue" (his words) asked Taylor if she had attended a union meeting. Taylor says he said he introduced this question by saying he wanted to ask her about something that really perturbed him. When she denied it, Martin and Wood say she became very defensive. Wood then said, "That's fine. That's all I wanted to hear." Taylor says that Wood did not appear to believe her and repeated the question twice. Martin says he only asked once. Wood maintains that the context of this exchange was a good relationship with Taylor in which discussions of many topics were common. She had spent a significant amount of time working with Wood as payroll clerk. He said he was very hurt and disappointed that if she had a problem she would not have felt comfortable coming to him. He sees one of his primary responsibilities as store manager to be keeping lines of communication with the staff open. It is his personal view that if employees want to be represented by a union, lines of communication are not being kept open. He felt he had failed because she had not come to him.

10Taylor says Martin told her to come to this meeting, while Martin and Wood say Taylor initiated it. Taylor did offer to be accommodating about the timing of the meeting and volunteered to come in on her day off in order to avoid having to go through the matter twice - once with Wood and once with Martin. Again, little turns on the discrepancy.

11Taylor was so concerned about the fact that Wood did not appear to believe her that she went to talk to him again that night, although he does not recall the conversation. She told him it was really bothering her that he did not seem to believe her, but that she had been called about a meeting and did not go. He asked her if she could tell him if she had been called by a Sobeys' employee, that she did not have to give him a name. He said his informant was an A & P's employee. Taylor said, "Obviously one of us is lying," and that it was not her. Wood then said, "If that's what you say, I believe you; I'll tell Tim Gingrich." She did not understand why he would be telling Gingrich this.

12Sometime in the middle of March, Lease and Bratton, the Grocery Manager, had lunch together, as they often did. During the course of the lunch Bratton asked Lease to help him find out who had gone to a union meeting, by asking her friend, a steward for the union at another company, who had been there. He suggested she could pretend she was interested in order to get him to give her the information. At the time Lease was not active on behalf of the union. Lease said she did not answer Bratton right away but later told him she could not do that because she could not betray a friendship like that. Bratton does not recall her saying that. Lease's cross-examination on this indicated that the reason she did not want to do this was that her friend would not want the information going back to Sobeys and that Bratton would feel he had to report this to Wood just as she had felt she should report to Martin on the union meeting. She assumed Bratton was trying to solve problems, and did not think it odd that he was interested in the meeting. Bratton said he was not sure what he would have done with the information and no one had asked him to do this. The conversation with Lease took place sometime after a conversation with Woods about rumours of union activity.

13The central events in dispute before the Board start with Wood's discovery on March 27, 1991, of an organizing document intended for the use of the complainant union. It contained employee names and phone numbers which the respondent maintains are confidential company information, improperly taken from its front end office by the grievor Jackie Lease. The front end office is the most secure part of the Stratford store and is where cash and records of several kinds are regularly kept. Both Lease and Taylor had access to and keys for the front office because of their duties with cash. Lease was Assistant Front End Manager, and Taylor was a part-time cashier with certain duties in the office. Most employees did not have such access. As will be seen in more detail below, as a result of their respective roles in compiling the list, Lease was fired and Taylor lost access to the front office.

14What Lease had done was copy the initials of the employee's name and the last five digits of their phone number from a list which is used to call cashiers and packers in to work. As well, she had obtained additional numbers from an address book kept by the Front-end Manager in a locked drawer, to which Lease also had routine access as Assistant Front-end Manager. Chris Taylor put the last three names and the department numbers on it and did the rating of probable level of interest in a union. Taylor testified that she did not know where Lease had gotten the other names or phone numbers; she and Lease did not discuss this point. The names other than the front end names came from memory. Lease had intended to leave the list in the mail slot of Sue MacIntosh, the deli manager, who was apparently going to add names to the list. She later decided it was a better idea to leave it in her car and arrange for MacIntosh to pick it up.

15As Store Manager, Wood regularly sees all the mail before it is distributed. He found the list in a manila envelope in the mail slot of the front end office with "Jackie Lease" printed in large letters on it, he opened it because he thought it was information that she had requested from the credit bureau about applicants for Sobeys' cards. She was going on holidays that day, and he had not seen this envelope before.

16Wood was surprised to see that Lease was involved in organizing for a union because he considered her position as Assistant Front End Manager to be inconsistent with that. He felt betrayed and disappointed about this potential breach of trust, since he had been instrumental in promoting her. He said what he meant by breach of trust was the fact that there was a good possibility Lease had breached the policy on confidentiality by releasing information to a third party. He discussed the matter with Gingrich; they both shared the view that if she had breached the confidentiality policy by taking information with the intent to give it to a third party, in this case a union, there was no choice but to terminate her.

17Wood said that all copies of the list were in the hands of head office officials within a short time after its discovery on March 27. Taylor testified she is sure the original of the list was in Sue MacIntosh's hands on April 5, because she saw it in MacIntosh's hand and flipped through it, when MacIntosh asked her for more phone numbers. MacIntosh did not testify, and the evidence provides no explanation for how this could be, if both witnesses are correct. In the end, nothing turns on it.

18It is conceded by the respondent that most of the information on the list could have been obtained from the phone book. However, there are certain exceptions to that, such as a number which was listed under a different last name in the phone book and an unlisted number. More importantly, however, in the respondent's view is the fact that it ensures employees that information that they give the company will be kept confidential. Fearon, Director of Human Resources, said this aspect of the policy is very important to the company as a basis for the trust necessary to the open communications with management it tries to foster. However, the information can be made available to employees in the store for reasons such as switching shifts. Outside parties like the United Way have been denied access to employee names and phone numbers. Vice-President Hagan testified that the idea that all information was confidential as to third parties is universal in the grocery business.

19The respondent's position is that Lease knew that the names and phone numbers were confidential information, and that it was contrary to company policy to take it and use it in the way that she did. Lease says she did not know it was against policy, that she used the list because it was quicker than the phone book. The company policy book has this to say on the subject of confidentiality:

CONFIDENTIALITY OF

COMPANY INFORMATION

Employees must respect the confidentiality of information regarding the Company's operations, its employees, clients, and/or affiliated retailers. Confidential information must not be revealed to any unauthorized people.

In turn, the Company recognizes employees' rights to privacy, and will not release confidential information about employees without authorization.

All operational and financial information, statements, reports and administrative memos relating to any details concerning Sobeys Incorporated activities, must be used with discretion and remain strictly for internal use.

Each employee was required to sign a statement that he or she had read the policy, which Lease and Taylor did. Lease said that although she had signed it, she had never actually read it. However, she agreed that in her termination interview she probably left Hagan with the impression she had read it. Before the publication of the policy manual in early 1991, there was no written policy, but the part about the confidentiality of employee information was stressed with managers by way of memo.

20The union referred to several instances of practices which it says show that the confidentiality policy is not as thorough as the respondent asserts. These included the posting of schedules with employee names near public washrooms, or within sight of customers over a counter, and the partial visibility of the above list of employee names and addresses through the Plexiglas wall of the front-end office. As well, service personnel and other employees could easily see the list in its usual place on the desk in the front office. As well, it is possible to climb over a safe into the front end office, if one expends the effort.

21More specifically, Jones testified that she had been able to call the store and obtain an unlisted phone number of an employee from someone in the Sobeys' office without identifying herself. On another occasion, her husband was able to get the last name and address of an employee. However, since the addresses are not kept in the department, it appears that the person who gave this information had not gotten it from information kept in the deli department. She also said that she had been told by her supervisor not to give out sales information and an employee had once asked the deli employees not to give out her phone number to her husband.

22In cross-examination of company witnesses, union counsel made a distinction between material that is competitively sensitive, such as advance pricing information and the information involved in this case - a list of names and phone numbers. The company does not accept that the policy was only intended for the former type of information. Hagan, for example, cited the problem raised by spouses looking for alimony and bill collectors looking for debtors as reason for the policy to cover both categories of information. He made a distinction between the names as opposed to addresses and phone numbers, because just names does not make contact possible, such as in the alimony or collection situation. Hagan said that if people call looking for employee phone numbers, that the practice is to take the caller's phone number and let the employee decide whether to call back or not.

23Senior Vice-President Lynn said that union organizing was a fact of life, but that the company did not accept that supposedly secure information would be transferred to facilitate that. He considered the list to be something that was communicated for the union's gain. The manner in which the information was obtained was important. If it had been obtained some other way, Lease would not have been fired. Lynn gave the example of a manager of Sobeys' convenience store division who was fired when he admitted he was intending to release plans about a new concept of convenience store to a third party, despite the fact the employee had not yet released the information. He was not aware of anyone who had released confidential information and not been fired. There was no evidence of any previous incident in regards to the release of names and phone numbers.

24About a week after the list was found, Barb Leslie, who had previously been a Sobeys' employee for about a month, heard that there was a possible opening on the midnight shift. She called Martin, who was pleased at Leslie's offer to work four midnight shifts because the midnight shift is often hard to cover. Wood and Martin's evidence is consistent that Martin had offered Leslie the opportunity to be rehired subject to checking with Wood. (Leslie did not testify.) This had gone as far as telling her when to pick up her uniforms, and setting her first shift as Monday April 8. However, Wood countermanded the rehiring on April 5. He was concerned that they not hire someone and then have to cut back hours, since the immediate availability of hours was because of a temporary absence. As well, he had a grocery clerk who wanted more hours who was also trained on cash, and could be used on midnights, a fact of which Martin was unaware. Wood did not want to send the message to other employees that it was necessary to quit to get more hours. Further, Leslie wanted a guarantee of 32 hours a week, which he thought would unduly restrict flexibility in scheduling.

25Martin felt badly about the impression she had left with Leslie and did not get back to her until April 8 when Taylor jogged her memory by offering to take the uniforms to Leslie. Later Martin told Wood that she had contacted Leslie, who understood, and that Martin would phone her if anything came up. The union alleges that the reason that Leslie was not rehired was that she was friends with Lease and Taylor and thus identified as a probable union supporter. Wood and Martin denied any knowledge of any particular relationship between Leslie, Lease or Taylor, or any involvement of Leslie in the organizing activity. There was no evidence that Leslie was involved in any union activity.

26On April 4, 1991, Fearon, Hagan and Gingrich had decided that Lease would be terminated if she had taken the information on the list from the store office. Hagan, as other company witnesses, maintains that the fact that the third party was a union made the decision more difficult, but that it felt that the company could not change its practice and policy because of that. It felt it had to apply it as had always been applied. Fearon had communicated this decision to Vice-President Lynn, who agreed, and Hagan informed President J. R. Sobey of it.

27Lease started working for Sobeys as a part-time cashier on January 2, 1990, before the store opened. She was soon given responsibilities such as training other cashiers and was asked to work in the office. She learned most of the office procedures, which included the handing of cash, floats, balancing, and some scheduling. In mid-September, she was offered the position of Assistant Front-End Manager. It is clear that she had been considered an above-average employee. Hagan had not reviewed Lease's personnel records before he reached the conclusion on April 4 that she should be fired if it was true that she had taken confidential information. However, he was aware that she had been promoted to Assistant Front End Manager from cashier, and thought what she had done was a breach of the trust implicit in her position.

28Vice-President Hagan and Personnel Supervisor Gingrich met with Lease on April 8. Although it is unusual to have a vice-president involved with discharges at this level, Fearon was on vacation. Since Lease acknowledged that the store office was the source of the information, she was terminated at the meeting. Lease agrees that she did not tell Gingrich or Hagan that she did not know what she had done was wrong or against company policy. Hagan maintains that she specifically said she knew what she did was wrong and that it was a way of getting even with Wood, with whom she was angry. Lease acknowledges the latter point, but says she never said she knew it was wrong, although she probably said, ~'Sorry" at the end of the meeting.

29A meeting with Chris Taylor followed closely on the termination meeting with Lease. Hagan asked Taylor what her involvement had been with the organizing documents which he showed her. Taylor says she mentioned that Wood had already accused her of going to a union meeting and that Hagan said that was no concern of the company's; that she could do what she wanted on her spare time. Hagan describes this exchange as Taylor becoming incensed and asking if he was questioning her right to be involved in a union, to which he responded, "Absolutely not". She said she had helped Lease write the list and categorize people. Hagan asked if there was anything else. She said no. Hagan says he then said, "Fine, then I don't think we have anything else to discuss", and the meeting ended. Taylor says she left the meeting afraid for her job, although she did not think she would be fired. She said it never crossed her mind that she would lose her job for going to a meeting or making a list.

30Since Taylor's involvement was only in ranking the employees as to their likelihood to support a union, she was not fired. Rather, she was excluded from further access to the front office. Taylor had worked an average of one or two shifts a week in the office. When she did so, she supervised cashiers and balanced cash. On occasions where she worked there without an Assistant or Front-end Manager, this work attracted a premium, which she had not been paid very frequently, since she often worked with one of them. Gingrich said that he and Wood decided on the exclusion. Hagan testified that Gingrich suggested it and that he concurred. This was because management did not trust her anymore, although she was not informed that was the reason. Hagan said she was aware that a policy violation had occurred and had not reported it, which left doubt as to her credibility in his mind. When Taylor was informed of this exclusion, she left the store after lunch and later confirmed she had quit.

31There was a dispute as to credibility on the question of whether Gingrich took notes in the meetings with Taylor and Lease, and their accuracy. He says he took notes during the meetings and made some immediately after the meeting with Lease. Hagan did not see the original of the notes but scanned the typed copy and agreed it accurately reflected what went on at the meeting. He also agreed that Gingrich took notes at the meeting as he was sitting there with pen and paper, although he said his attention was elsewhere through much of the meeting. Lease and Taylor said they never saw him take notes. Each of them disputes the accuracy of his account in some respect. The most important part of this dispute over the accuracy of the notes is that Gingrich's notes indicate that Lease acknowledged in a number of different ways that she knew what she had done was wrong, and that she should not have done it. More will be said about this below, but it is to be noted that the dispute is one of degree, since Lease acknowledges that, during the interview, she did not deny that taking the information from the front office was against policy, nor say that she did not know it was wrong. Gingrich acknowledged that she said "it's just a list of names", at some point in the interview.

32After the meetings with Lease and Taylor on April 8, Gingrich held a meeting with the department managers together with Bruce Wood for the purpose of clarifying Lease's termination and to reassure everyone that she had been terminated for taking confidential information, and that the fact that it had been taken for union purposes was not any concern of the company's. They were concerned that although she had admitted a breach of confidentiality, it would be perceived by employees that she was fired for trying to recruit a union. Gingrich told the managers that employees had a right to join a union.

33After meeting with the managers on April 8, Gingrich set up meetings with the employees, by department, for April 11 to make sure all employees knew that the firing had nothing to do with the union and to reiterate the company's position about competition. Employees were expected to attend and paid for their time. Gingrich took a list of points to be made into these departmental meetings. He took the opportunity to outline how the employees' terms and conditions of employment favourably compared with the competition's, but stressed that employees had the right to join a union if they so wished. In answer to a question, he told the employees that the Sobeys' stores which were unionized had been so when Sobeys acquired them. He acknowledged on cross-examination that the competition to which he was comparing the employees' terms and conditions of employment included their major unionized competitors. He made the point that job security depended on a successful company and reminded them that people at Dominions and Zehrs had lost their jobs. Dominions and Zehrs are unionized.

In answer to a question as to what the company's concern with the ranking on the documents was, Gingrich told employees that it was no concern of the company's, they were free to join a union, and they might be contacted at home by the union. He said some employees did not appreciate their phone numbers having been obtained from company records. Gingrich testified that he did not know if the information had gone to the union.

34Jones testified that in her departmental meeting, someone asked Gingrich why anyone would want a union. He replied that he did not know himself why, that unions really did not help. He said that at Sobeys they made sure employees got fair rates of pay compared to the other unionized stores. Jones says that Gingrich said with a union, you are not guaranteed to keep a job, and gave Dominions as an example. Gingrich says he said that only a profitable company can give job security and gave Dominion as an example. Jones says he also said that part-timers could not work more than 24 hours and that they got little or no benefits whereas Sobeys had profit sharing and a drug plan for part-time workers. Jones also testified that he said you have to pay dues if you are unionized, but at Sobeys you get job security and benefits without dues. She acknowledges he also said no one can tell you what to do - if you want to join a union, you can.

35Because of scheduling problems, the meeting with the grocery department was not done by Gingrich, but by Bratton. Bratton initially testified that he had not said anything in this meeting about the effect of unionization on part-time staff and had not gone beyond the subject of why Lease was terminated. He was later recalled to correct that evidence. On the first occasion he gave evidence he also denied asking Lease to get information for him about employee interest in unionization by pretending she was interested in the union. He later changed that evidence as well. He attributed his incorrect evidence on the first occasion to being nervous and surprised he was being asked those questions. He said his memory was jogged and it all came back to him a few days later. When he was recalled, Bratton said he had been asked the question, "What are unions about?" after he had said Jackie Lease was not fired for organizing a union. He responded by saying that most unionized stores have a 24-hour limit for part-time, unlike Sobeys where part-timers can work 32 hours. The Produce Manager immediately corrected him, saying this differed from place to place. He also said Sobeys' wages kept up with unionized stores and discussed Sobeys' benefits, including a profit-sharing plan, which he believed was unique among grocery companies. He also said at the meeting that he had belonged to a union in Saskatchewan and they had done nothing for him except take his dues. He felt he was expressing his own, rather than the company's views. At the time he was acting Store Manager because~ oods was away on vacation.

36Lease maintains that she returned to the store about a week after her firing to clean out her locker. Her version is to the effect that she came across Tim Favacho, acting store manager. She asked him to come upstairs to the break room while she cleaned out her locker. He said sure, but to wait a minute. Before they went upstairs, another employee asked her if she was coming up for coffee. Lease says she went up and Favacho came later, and the three of them had coffee. She said she was there about 15 to 20 minutes. She is sure Favacho was there when she cleaned out her locker and that he escorted her out after this visit. By contrast, Favacho testified that Lease came to the store on April 23 and that he did not see her until he was in the break room. He maintains he neither had coffee with her, nor saw her clean out her locker. On cross-examination, he acknowledged talking to her across the tables in the lunch room.

37Shortly after this event Lease heard from a friend that she had been banned from the store. Wood said this was on his instruction after she had been found trespassing, apparently referring to her presence in the employee coffee room on the above occasion. We have no information as to what Wood had been told transpired when Lease was in the store. In the beginning of October she was in the store with Taylor when Favacho asked them to leave. Wood said there was no ban on Taylor; in his view she had terminated her employment of her own accord.

38On April 25, anticipating an increase in business because a competitor's store was closing, Wood called Leslie, who as mentioned above, had earlier not been hired back, and offered her work, but not on the midnight shift. Wood said that they had still not hired anyone on midnights, using their own staff to fill in instead. At about the end of the month, signs went up advertising for cashiers, but not for midnights. To cover Lease's and Taylor's hours, they increased the hours of existing staff who had previously had their hours cut back.

39In early May, the company held meetings at a local hotel at which John Lynn, Vice-President of employee and Personnel Relations, gave a seminar on the company's position on the economy, which had first been presented elsewhere early in April. The union alleges that there was an anti-union message being delivered at the same time and that it was brought to Stratford because of the union activity. This presentation was given in the Barrie and Stratford stores and at a wholesale location in Ontario, as well as several locations in other provinces, both unionized and non. Employees were expected to attend, and paid for their time, although not every employee attended. The text of this speech was entered into evidence, the majority of which was reproduced on overhead slides as Lynn spoke. The management witnesses who attended saw the presentation as a means to reassure the employees that Sobeys was not going to be a victim of the recession. that their jobs were secure and the company was a good one. Jones testified that Lynn said that the reason Sobeys had profit sharing is that they did not have other people telling them how to spend their money, and that sometimes it was not just companies who were told what to do with their money, but employees also. She was sure he was talking about union dues.

40The management witnesses could not recall the word "union" being mentioned. The word union appears in the written text of the presentation, which Lynn says he read to the employees, in a part which deals with the company's goal to remain competitive. This section reads as follows:

DEFINITION OF "COMPETITIVE"

The statement we will remain "competitive" must be understood in the following context:

Our wages and benefits as an overall package will be compared with our competitors on an annual basis.
We obviously will not have identical terms and conditions of employment as other companies in the food distribution business for the simple reasons we are different. we have different priorities and different work groups and not all of our businesses operate under identical conditions or environments.
In some areas, we will be superior to our competitors and in others slightly deficient, but on an overall basis our commitment is to be competitive. Obviously, if we were the leaders in all areas of our terms and conditions of employment, we could not despite all of our combined efforts meet the challenge of being the lowest cost distributor. The one area in which we will never lead the pack is in wages, however we will be competitive.
In addition, we will never allow a competitor or organization to dictate our terms and conditions of employment in any component of our organization. This would be irresponsible and would place us on the road to becoming non-competitive and a high cost distributor in an industry which must keep costs down and efficiency up with better service to the customer. We really do not want to talk about the future in this type of environment because if we do we inevitably must look at Companies such as

— Atlantic Wholesalers — Perfection Foods — Dominion Stores Ltd. — Steinberg Stores Ltd. — Baird & Company Ltd. — Royal Grocery — Miracle Food Mart — Canada Packers Ltd. — DeBlois Food Distributors — National Grocers — National Sea Products — Great A & P Company

All of these Companies were either sold, broken up, closed, bankrupt or rationalized. These Companies became inefficient high-cost distributors where shareholders, employees and unions expected to extract too much from the business, there was too little capital investment and above all they lost sight of why they existed (i.e. to give customers what they want at the price they want it).

At Sobeys Inc., we want to assure a bright and secure future for our owners, shareholders and employees. This is the responsibility of management and employees.

Lynn felt Dominion was a good example of the problems cited, and the only comment he recalled making aside from the text was that Dominion had become uncompetitive for all the reasons set out in the text. Sobeys decided to compete with Dominion rather than buy it because of those reasons. He said he was not aware that the Stratford Dominion store had recently been sold and jobs lost. He denies that the above material constitutes negative comments about unionization as the union alleges.

41Gingrich also held an orientation meeting at the Grimsby store and an August communication meeting at the Woodstock store, where the subject of Lease's termination was raised. The union alleges an anti-union message was delivered. Gingrich says nothing was said about unions at those meetings, although the company's philosophy and practice about communication with employees was discussed. At the Woodstock meeting, Gingrich spoke of the reason for Lease's termination and held up the document which had been the basis for Lease's firing.

42The union alleges Cindy Jones was disciplined unfairly because of her association with active union organizers. She received a written warning for excessively long breaks and not punching in on time and a verbal reprimand for wearing jeans contrary to the dress code. Gingrich was satisfied from the reports he had that the allegations were true, and reviewed the reprimand before it was presented. Although Jones said she was never spoken to about breaks before the warning, she remembered that Comley, the deli manager, had spoken to the deli employees in general. Comley said she had spoken to Jones on April 5 about breaks. Jones agreed that she knew she should have been punching in and out for breaks and that she knew why she had been written up.

43There is no evidence Jones had anything to do with the union, or that management thought he had. Her evidence was that she wanted to keep her opinions from management and that she did not answer yes or no when asked her views. There is no allegation that she was asked her views by management. She was ranked as "questionable" on the organizing list. Jones thought she was being picked on because of her association with Karen Ritchie, who apparently was active on behalf of the union, who was her friend, and friends with Lease and Taylor. There is no allegation that any action was taken against Ritchie.

44The union alleges that it is company practice to ask employee views on unions prior to hiring. Gingrich stressed that in the highly unionized grocery industry in Ontario, the majority of their employees come from a union background. Each management witness who was asked denied that the issue of support for unions was raised by them in interviews or formed any part of their hiring decisions. The subject may come up if the prospective employee raises it. Gingrich said there are no guidelines to lower management about what questions to ask in interviews. He sometimes asks what an employee thinks of the employer/ employee relationship at a previous place of employment and how they enjoyed previous jobs. Martin said employees sometimes ask if Sobeys is unionized and she answers, "No, does it make any difference?"

45Lease maintains that Gingrich asked her opinion on unions when she was hired, and that she responded that if you do your job well, you really don't require one. She had been warned by a friend that a question like that might be asked and that the store was basically non-union. On cross-examination, she said that she had not gotten the idea that the company was against unions. Taylor testified that Martin asked her how she felt about unions without her having raised it herself and told her it was a family-based, non-union store. Taylor responded that she preferred a nonunion store because she needed the job and knew Sobeys was non-union.

The Parties' Submissions

46The company asks that the complaints be dismissed as no anti-union animus was present in the impugned decisions. Respondent's counsel stressed the largely unionized nature of the Ontario retail food industry and the fact that most of the witnesses on both sides had worked in unionized environments. Counsel asked us to draw the inference from the fact that most of the company s 14,000 employees are not unionized that it was their choice, that the company could not remain non-union by being anti-union. Rather, it has tried to be a model employer, trying to keep on top of problems, but not reacting to news of union activity.

47On the question of confidential information, counsel stressed that the union had no legal right to the names and phone numbers, and that the company was enforcing its policy and its undertaking to its employees to keep their private information confidential.

48Dealing with the allegations concerning the individual grievors, counsel started with Lease, and underlined that the company knew there might be scrutiny of their decision because the breach of company policy was related to union organizing. However, she maintains that there is no suggestion in the law that an employer cannot do what it normally would once a union is on the scene or that an employee immunizes herself from appropriate discipline by engaging in union activity. Counsel asks us to find that the usual response to serious breaches of company policy, rare though they are, is dismissal. The idea that it was a concern for the use of confidential information and not union organizing which motivated the discharge is supported by the differential treatment of Taylor and Lease, and the fact that there are no allegations of any action against the individuals rated high in terms of union support on the list found. Hagan was left with the clear impression Lease knew she had done something wrong. In the interview with Taylor, Hagan made it clear that it was none of the company's business if she was involved in union organizing.

49Counsel underlines that management then went to some lengths to reassure other employees that the discharge was not for union activity and to make clear to department heads that employees have a right to organise.

50Counsel asked us to find that Lease had not been forthright with the Board as evidenced by her evidence about clearing out her locker which should not be preferred to the straightforward evidence of Favacho to the contrary.

51Counsel stresses that both Wood and Bratton thought employees seeking unionization had some sort of work-related problem that needed to be addressed by management, they wanted to solve problems, not learn who union supporters were for anti-union reasons.

52As to the allegation that Taylor was intimidated, counsel points to the evidence of her approach to Wood as not the action of someone who was intimidated. She quit because she felt management did not trust her; management had cause for its concern about her trustworthiness after she was involved in a process which was sending confidential information to a third party.

53The evidence does not, in counsel's submissions, connect Barb Leslie to the union in Martin's or Wood's mind. Wood vetoed Martin's desire to rehire Leslie for business reasons and not for anti-union reasons.

54Counsel submits that Jones is not tied into union activity either. There is simply no basis in the evidence for the inference that union activity was the basis for Jones' discipline.

55On the question of Lynn's presentation, counsel submits there was nothing illegal or even dealing with unionization in the speech. Counsel submits that evidence about the store meetings with employees also fails to meet the onus on the union to establish a breach of the Act. Although Bratton said people might have their hours cut back if the union came in, the Produce Manager corrected him; there was nothing to pressure or threaten anyone. Equally, in counsel's submission, the evidence does not support the union's allegations about hiring practices. Although the subject of unions may come up there is no evidence that the company tries to find and exclude potential union supporters. Counsel referred to The Barrie Examiner, [1975] OLRB Rep. Oct. 745 and J. Pascal Inc., [1985] OLRB Rep. July 1075 as well as the Ontario government's discussion paper on labour law reform, specifically its indication that unions do not currently have a legal right to employee information for organizing, in support of her contention that the company's actions do not support a finding of illegality.

56By contrast, union counsel argues that it was the destination of the information that caused the discharge of Lease, and that we should infer that anti-union animus was present, despite the denials of the managers who testified. The intense involvement of senior management from the moment the list was discovered is cited as evidence of this. As well, the union points to the evidence of less than consistent enforcement of the policy, such as the fact that a non-employee was able to obtain an employee's phone number over the phone without identifying who he was. Further, counsel argues the real focus of the policy is the competitive nature of the food industry and the necessity to keep secret information as to sales and corporate plans. She suggests that its use in this instance was at least tainted with anti-union animus. While acknowledging that the line between proper and improper discipline in this situation may be fine, counsel argues that the company did not isolate the events from the context of the union organizing campaign. If they had, it is suggested an employee with as good a record as Lease would not have been fired for making a list of employees' names and phone numbers.

57As to Lease's alleged acknowledgement of wrongdoing, she says that Lease's evidence rings more true. She is said by Gingrich to have been worrying about doing something wrong while on vacation, while she says she said it's only a list of names.

58Counsel did not disagree with the general proposition that employers should keep information confidential. However, she said the key question was whether the panel was persuaded that Sobeys' desire to keep union free played no part in the decision to fire Lease and demote Taylor. The union submits that the proper conclusion is that they were disciplined for collecting information for union activity. Counsel argues that there is little doubt that the result would not have been the same if the list had been used to gather employees for a social event. Union counsel referred to Fabricland Distributors Inc.,[1991] OLRB Rep. July 836 and Knob Hill Farms Ltd., [1987] OLRB Rep. December 1531 in support of her arguments.

59As to the company's suggestion that Taylor had not lost anything substantial by being excluded from the office, union counsel submits that it was a "plum" that was taken away from her for which she had worked quite hard. Further, counsel submits that the basis for the new lack of trust in Taylor was never sufficiently explained if they believed that all she had done was rank people as to interest in the union.

60On this aspect, counsel cites Bratton's attempt to get Lease to lie so he could get information about the union as particularly telling. He then discussed the matter with his superior, Wood. Wood then responds to Taylor that all he wanted to hear was that she had not been at the union meeting and says he'll tell Gingrich. Why he was going to tell Gingrich has not been explained. As to the suggestion that managers were just problem solving when they asked employees about various union activities, counsel suggests this would be more credible if they had actually asked about problems. Rather, they asked about attendance at meetings and the actual union activity, not about dissatisfaction at work. Various managers were hurt or betrayed on hearing that employees they valued were considering unionization. This is not evidence which supports the company's case, in counsel's submission.

61Union counsel asks us to prefer the evidence of the union witnesses because the management witnesses in her estimation were evasive on cross-examination, with the exception of Gloria Martin. The union submits that by contrast its own witnesses were completely straightforward. She cites Gingrich's reluctance to say he had used the organizing document in meetings with employees at other stores, or that the meetings with all the employees at Stratford were unique, although when pushed, he finally did.

62On the question of the content of the employee meetings, counsel submits that the juxtaposition of the messages about discharge for confidential information which was going to a union and the competitive situation of the company in a context of local business failures was no accident. When Bratton gave evidence the second time, he gave evidence as to matters which are consistent with Gingrich's message.

63Counsel argues that Sippel's evidence about Jones' discipline simply makes no sense. He said he was repeatedly warning everyone although he only had a problem with two employees. Furthermore he said there was no problem on Sunday, while Woods said the problem was on Sunday.

64In reply, company counsel argues that the union is trying to belittle a very important policy that the employer takes seriously. Further, there is no negative inference that the Board should draw from the corporate involvement in the store or the decision making. This is part of Sobeys' management style: they stay on top of things.

65As to the inferences union counsel asked the Board to draw about the motivation of the managers who questioned employees, she suggests that Lease's response is the most telling. She assumed Bratton was asking because he thought there might be problems; further Lease and Bratton are friends of longstanding. She describes Lynn's presentation as a road show to union and non-union places alike. She suggested that Jones' perceptions should not guide the Board, as she generally appeared to feel picked on. Whether Taylor only ranked or not, that is apparently what the managers had been told at the time of their decision to fire one and not the other. Counsel argues that if the list had been used for a social event, the circumstances would have been very different. Here, the employees were clearly intending that the information go to a third party. We know she got at least one unlisted phone number from using the list rather than going to the phone book. In closing, counsel maintains that there is no evidence of fear or intimidation on the part of anyone.

Decision

66We will deal with the allegations by reference to the events set out above in approximate chronological order. The events and conversations set out above which took place prior to April 8 are not pleaded as constituting violations of the Act. Rather, they were part of the surrounding circumstances about which both parties led evidence without objection from the other. They will be dealt with together with the issues specifically pleaded, as necessary.

67On April 8, 1991, three things happened of which the union complains. They are: the discharge of Lease, the denial of further access to the front office to Taylor without explanation, and the refusal to rehire Leslie. We will deal with each of these in turn.

Lease's Discharge

68The question to be decided is whether the decision to fire Lease was in any part motivated by anti-union sentiment, or was, as the company maintains, an even-handed application of its policy against the release of confidential information to third parties. There can be little doubt that the taking of the information to release to out-siders without the employee's authorization, to the extent that it can be considered confidential, was a breach of the company's policy set out above. It is sensible that the confidentiality policy would cover both information which is commercially sensitive, like pricing information and information on employees as individuals. The company's evidence that it seeks to protect employees from release of information which would allow contact by debt collectors, alimony seekers and charities was credible.

69The only major question, and a difficult one, is whether the severity of the company's response was tainted by anti-union sentiment. In this respect, it is necessary to address the nature of the company's position on unions which was dealt with in evidence in a general way by both sides as background to this dispute. It is clear that Sobeys is proud of the fact that it has a very low level of unionization in its operations. It sees this as a positive by-product of its policies on communication and its terms and conditions of employment. That Sobeys would prefer to operate without unions is clear from the evidence; this fact is unsurprising and not illegal.

70There is another aspect to the company's view of unions as well. To the Sobeys' managers we heard from on the subject, employee interest in unions is symptomatic of problems in the organization. The lower level managers saw the presence of interest in unions as failure on their part. This was particularly clear about Wood, the Store Manager, but applicable to others, including Bratton, as well. Other interpretations, such as that employees might be interested in unionization as a way to participate in the workplace or society does not appear to have been something the managers considered. This may also be unsurprising, and without more, is also not illegal.

71However, the line between legal actions that have a by-product of a low level of interest in unionization, including neutral interest in problem solving, as opposed to activities which are partly motivated by a desire to discourage unionization or interfere with organizing activity can be quite fine. And the ability to understand and maintain the difference in practice will vary from individual to individual. The company is made up of a variety of individuals, each with his or her own understanding of these issues. The issue here is one of motivation; it is necessary to determine from evidence and reasonable inferences therefrom what is most probable in all the circumstances.

72The managers involved in the decision to fire Lease considered their vulnerability to scrutiny because of the involvement of the union and nonetheless decided that their only avenue to deal with the offense was termination. They rely on their general practice to deal with serious beaches of company policy by termination. In dealing with the question of what amounts to a serious breach of policy, comparison was made to the one specific case of the convenience store manager who was fired for releasing material about the company's manner of operating the store.

73It is not the transfer of the information itself to the union of which the company complains. It was specifically the company's position that had Lease gotten the material together from the phone book, there would be no complaint. With the exception of an unlisted phone number, all the information on the intercepted list could easily have been obtained in that manner; it is not disputed that Lease only used the office lists because it was quicker. Thus, the vast majority of the information itself cannot be considered truly confidential, in the sense that Lease would have had no right to it except for her access to the office. However, in the company's view, this was as serious a breach as the release of information which is obviously confidential in the sense of not being available elsewhere, such as social insurance numbers, the advance price of products, or convenience store management information. This is the part of the case that deserves scrutiny.

74The company says Lease knew what she did was wrong. There are differences in evidence about how much Lease said about acknowledging wrongdoing; we have concluded that, given the extensive overlap in the versions of the conversation at the termination interview that the differences are those which are the natural result of differences of point of view and the passage of time. Both sides agree Lease gave the impression she had read the policy and said she was sorry as well as that she said it was only a list of names. The latter remark is a good indication that she did not think it was a very serious offense. If she elaborated on her saying she was sorry to the extent Gingrich suggests, it does not change very much; the decision to terminate was contingent only on whether or not she admitted to taking information from the front office.

75Is it more probable than not that the company's decision to terminate rather than deal with the breach of policy in a less severe way was not at all motivated by a desire to interfere in the progress of the nascent organizing campaign? In attempting to answer this question, there are two areas which are of concern.

76Firstly, there was apparently no consideration given to Lease's good work record as a mitigating factor, or any consideration given to measuring the severity of the penalty to the severity of the breach. We do not share the view that the company could only have maintained the integrity of its confidentiality policy by firing Lease. She had a discipline free record. It is clear that in other areas the company started with reprimands and worked up, for example in the case of Cindy Jones' discipline for extended breaks, which the company described as stealing from the company. The employee handbook clearly describes theft as cause for immediate discharge; the use of alcohol or drugs at work or reporting to work under the influence is said to be grounds for discipline up to and including termination. Immediately following the portion of the booklet dealing with those rules is the policy on confidentiality, which does not indicate that it is an automatic firing offense. The only evidence about verbal reinforcement of the confidentiality policy with employees is on the pricing aspect. There was no evidence that the company had been clear with employees on what information was considered confidential. It is not at all surprising that an employee might think that phone numbers of co-workers, many of whom she was friends with or had grown up with, were not the real focus of the policy on confidentiality. We do not share the view that what Lease did was comparable in severity to what the convenience store manager apparently did - release corporate information about the details of how Sobeys operates.

77The other troubling aspect is the information given at the meetings to inform employees about the firing. Not only was the company's position given, but the opportunity was taken to offer information that could only have discouraged any remaining interest in unionization. We will deal with the meetings further below. If the company did not intend to send a message about union organizing along with the discharge of Lease, it is difficult to understand why Gingrich and Bratton took the occasion in separate meetings to tell employees why they did not need a union in very similar terms.

78A similar, but related concern exists as to the ban on Lease, a significant negative consequence, which was not persuasively explained. Wood said it was for trespassing; more senior management said that a ban would be considered where an employee was disrupting other employees. No matter which version of the evidence about cleaning out her locker is accepted, there was no suggestion that Lease disrupted anything or that she had been told that she could not be in the coffee room.

79These factors leave us unpersuaded that the severity of the response to Lease, and the lack of any consideration of other penalties, was not at least in part motivated by a desire to discourage what she was doing when she made the list - organizing a union. Accordingly, we are of the view that the company has not satisfied its onus on the matter of the penalty imposed on Lease, and that in this respect a finding that they have breached the Act is in order. Lease is to be offered reinstatement and compensated for her losses due to the firing, with interest thereon according to Practice Note 13. In this regard, we did not hear any submissions on what might have been an appropriate disciplinary response short of discharge, and remit this to the parties for consideration. If they are unable to resolve this issue we will receive written submissions on the point.

Taylor's Denial of Access

80What was the company's reason for denying Taylor further access to the front office? Wood and Gingrich, with Hagan's concurrence, decided that she could no longer be trusted. Wood said the reason was that she was working with Lease in ranking employees and there was confidential information in the front office. Hagan said the reason was that she was aware of a breach of policy and had not reported it. Taylor's uncontradicted evidence is that she did not know where Lease had gotten the information at the time she ranked the employees. There was no evidence that any of the managers inquired as to whether Taylor knew where the information came from. It appears that they assumed that she did. There was no evidence that it was expected that employees would report any breach of policy that they saw occurring.

81It was Hagan's evidence that when he learned at the April 8 interview that all Taylor had done was rank the employees, there was nothing left to discuss and he ended the meeting. Wood and Gingrich's decision apparently came after this. The evidence is unclear as to which of the two initiated the decision.

82In considering the motivation to exclude Taylor, we have considered the evidence of Wood's prior interactions with her on the subject of the union. We accept Taylor's evidence about Wood's apparent disbelief of her denial of having attended the union meeting. She was a very straightforward witness; her account of her approach to Wood the night after he had asked her about the meeting was credibly given. Although Wood does not recall that exchange at all, her account of his responses is consistent with the evidence he gave before the Board. Even by the date of the hearing, he was speaking of his disappointment at the fact that someone he had trusted had not come to him about her problems rather than going to a union meeting - he still appeared to disbelieve what she had denied to him several times. We infer from this line of evidence that Wood very likely had started to distrust Taylor weeks before April 8, from the time of his concerns about her attendance at a union meeting. There is no evidence that Hagan had any part in or knowledge of the earlier root of Woods' distrust; it was clear that the idea to exclude her from the front office was not his, although he concurred with it, because he apparently believed she knew where the information on the list came from.

83We are aware that Wood maintains that his only concern was for solving problems, and that was why he was inquiring of Taylor about her supposed attendance at a union meeting. We agree with union counsel that this proposition would have a lot more credibility if he had asked her if there were any problems. Wood's distrust appears to have been originally rooted in his information from Martin and MacIntosh about the mere attendance at a union meeting, and reinforced by the fact that Taylor ranked employees with Lease. It was not generalized distrust, or one would have thought she would not have been working with cash. The exclusion from the office meant that she would be working exclusively as a cashier.

84If the only reason for the exclusion was the failure to report Lease's violation of company policy, it is hard to understand why Taylor would not have been told that - and that is not the reason Wood gave for the exclusion. The absence of any explanation to her adds to our concern that another message may have been intended as well. Given the unexplained exclusion on the heels of her admission that she had ranked people from the union, it would be natural for her and others to believe that she was being punished for having done just that. Wood said that the basis for the decision was the fact that Taylor was ranking people with Lease. Hagan had apparently been of the view that there was no problem with ranking employees, a view the Board shares, as it is pure union activity. It is clear that the ranking played a part in at least Wood's considerations in deciding on the exclusion from the office. It is likely that the distrust dating from the time Wood started to believe that Taylor attended a union meeting also played a part in his thinking. It is clear that Wood had been in touch with Gingrich about all these matters; Wood's concerns may thus have become part of his mind-set as well. In all the circumstances of this case, we are of the view that it is likely that association with a union campaign was at least partly the basis for the new found lack of trust in Taylor, and that this warrants the inference that anti-union animus played some part in the decision. Thus we find that the employer breached the Act in excluding Taylor from the office.

85What is the appropriate remedy for this breach? If Taylor were back in the position she would have been before this breach, she would not have been excluded from the office, and we find it unlikely that she would have quit. It is clear that it was the employer's lack of trust in her, as manifest in the exclusion from the office, that caused Taylor to quit. We are of the view that Taylor is entitled to be reinstated with access to the office on the same basis as prior to the events complained of, if she so wishes. We remit the question of compensation for Taylor to the parties, and will resolve this issue by written submissions if the parties are unable to resolve it.

The refusal to rehire Leslie

86This portion of the complaint must be dismissed. There is no evidence to link Leslie to any union activity. The only evidence on which an inference is argued to be drawn of anti-union motivation for this action was the friendship which could be inferred from knowing Lease and Taylor and the latter's offer to take the uniforms to Leslie. Martin's and Wood's uncontradicted evidence about the conditions in the store which lead to Wood's veto of the idea was credible, as was Martin's evidence about why it took until April 8 to inform Leslie - she had put off an unpleasant task. We find no basis for the finding the union requests on this portion of the complaint.

The meetings with employees

87In deciding where the line lies between free speech and undue influence in section 65, the Board has held that a suggestion that unionization will be accompanied by loss of jobs will violate section 65 whereas an expression of preference to remain non-union, without more, will not. See, for example, Knob Hill Farms, supra, and Thermogenics, [1992] OLRB Rep. February 224. In the former case, the communication included statements to the effect that the employer had achieved its success without the intervention or interference of a third party, and that employees did not have to join a union or talk to its representatives. The Board found that this was likely to be taken only as a communication to the employees that the employer preferred to remain nonunion and was therefore protected as free speech. On the other hand, in Thermogenics, the communication went further and linked unionization with adverse effects on job security and was found to cross the line. In dealing with the employer's argument that the message was simply factual and not a threat in Seven Up/Pure Spring Ottawa, [1984] OLRB Rep. Jan. 87, the Board said this:

…..In assessing employer conduct the Board is obliged to take into account the responsive nature of the relationship of employees with their employer. Predictions of what the future holds may constitute threats or promises, if it is in the power of the employer to make the predictions come true and the employees perceive in their employer a willingness to exercise that power in response to the success or failure of their attempt at unionization.

The Board further observed that such communications must be assessed as a whole from the point of view of the typical employee receiving it. We will deal with the departmental meetings, the Lynn presentation and the Grimsby and Woodstock meeting in turn, in light of these general considerations.

88There is little question that if the company had just told the employees of the company's position on Lease's firing, there would be no basis for this portion of the complaint. What makes the matter problematic was Gingrich's decision to take the opportunity to tell employees his view on how favourably their conditions of employment compared with the competition which included references to the closure of unionized competitors and restrictions on work for part-timers in unionized workplaces. He said that it was a profitable company that provided job security and reminded employees of the example of Dominions, a unionized store which had recently closed in Stratford. He said in answer to a question that unions did not really help. It is not disputed that he made a clear statement that employees could join a union if they wished. This will not be a sufficient mitigating factor, however, if the message delivered is that you are free to join a union, but you risk losing your job as a result.

89Although Bratton says he was only giving his personal opinion when he made very similar remarks to those of Gingrich at another meeting, he was chairing the meeting as acting store manager, and thus we doubt that the average employee would have taken his remarks as anything other than the company's position. He apparently did not make the pointed references to the closure of a close unionized competitor as Gingrich had, but delivered a similarly negative message about unions.

90Although it is not unusual to have meetings at which employees are required to attend, part of the context of these remarks is that they were made at compulsory meetings on company time. As well, the very subject matter of the meetings - Lease's firing for being prepared to release confidential information to the union - made the whole issue of the company's opinions on unions highly sensitive. The material itself is borderline. It referred to a real case where jobs were lost at a unionized competitor. However this was in a context in which, as we have said earlier, it is hard to understand why the remarks were being made at the same time as telling people Lease's discharge had nothing to do with the union unless a message about unionization was being delivered at the same time. Gingrich's statements about the restrictions on part-time workers were possibly a misunderstanding of the division in standard full-time and part-time bargaining unit at the line of 24 hours. What hours a part-timer works is not something that is determined automatically upon unionization. The average employee would likely have taken the remark as a serious problem for part-timers and to the extent part-timers depended on the hours over twenty-four they worked at Sobeys. a threat to their livelihood. Gingrich was not corrected, whereas Bratton was on this point. All of this was punctuated with the clear statement that employees had the right to join a union. We are of the view that any doubt about whether the remarks made at these meetings goes over the line into undue influence is resolved by the cumulative effect of these meetings and the meeting at which Lynn gave his presentation.

91In reading the material presented by Lynn set out above, we are of the view that the average employee would interpret it as an indication that unionization would lead to the demise of Sobeys along with the economic casualties Lynn picked out for specific reference. For example, this is a likely interpretation of the reference to not allowing "a competitor or organization to dictate our terms and conditions of employment.., this would be irresponsible", "We really do not want to talk about the future in this type of environment...", immediately preceding the list of grocers who had seen major difficulties. This was apparently followed in the oral presentation with a reference to the fact that it was not just employers, but also employees who were sometimes told what to do with their money. All of this was couched in language which referred to competitors and shareholders as well as unions, and this is why the company did not see the material as sending a negative message about unionization. The material is subtly worded. If read very technically, one could adopt an interpretation that this material was not for the purpose of sending a message that unionization would have a decided detrimental effect on job security. However, that is not the common sense reading of it in the context of a meeting aimed at employees in the midst of an environment were the competition is highly unionized, and not one we think the average employee would take. in context, it is perfectly clear that "third parties" refers to unions. The passage was likely to be read as it being unthinkable to the company that it could operate with a union. Thus, we are of the view that this material, delivered at a compulsory meeting, with the comments about dues following it, together with, and within a short time after, the departmental meetings is over the line into undue influence. It links unionization with negative effects on job security and makes dire predictions about the future dealing with "third parties" on working conditions.

92Thus we are of the view that the company breached section 65 in using undue influence at the series of meetings at which it linked unionization and negative effects on job security in a sensitive context where employees would likely conclude that Sobeys could make these negative effects a reality if unionization occurred. As a remedy for this breach and the effects on the union of the breaches found above we order the posting of the attached notice for sixty days in conspicuous places on the premises of the Stratford store.

93We have no information other than Gingrich's about the Woodstock and Grimsby meetings and his account of the meetings does not disclose a breach of the Act. This portion of the complaint is therefore dismissed.

Hiring Practices

94As to the complaint on hiring practices, there was no evidence that hiring decisions were made on the basis of affiliation or interest in unions or that there was undue influence exercised by any questions asked. This portion of the complaint is dismissed. However, clearer practices in this area might avoid the perceptions shared by the union witnesses in this regard.

95The union also asked for the return of its organizing documents. An undertaking by counsel to the employer dealt with this during the course of the hearing. We would ask counsel to attempt to deal with this themselves. If such efforts are unsuccessful, we will receive written submissions on this point.

96In summary then, the complaint is allowed in respect of Lease, Taylor, the departmental meetings and the Lynn presentation. It is dismissed in respect of Leslie, Jones, the Woodstock and Grimsby meetings and hiring practices.

DECISION OF BOARD MEMBER R. M. SLOAN; September 16, 1992

Introduction

With respect I strongly dissent from the majority decision.
The triggering event for this complaint is the use by J. Lease and C. Taylor of employee names and telephone numbers, kept under company control, in the preparation of a document to be transmitted to the United Food and Commercial Workers' International Union.

Privacy and Confidentiality of Employee Information

There can be no argument against the right of Sobeys' employees to expect that the use of their names, telephone numbers, and other personal data, will - within the reasonable bounds of operating a business - be vigorously protected by their employer. Indeed Sobeys, like all employers, is obligated to exercise strict control of this information to ensure, insofar as is possible, that the information is used only for legitimate business purposes.
The issue is particularly important and significant at Sobeys in view of the large number of women employees, for very obvious reasons. As a matter of fact, a number of employees expressed their concern and displeasure to the company upon learning that their telephone numbers were to be given to an unauthorized third party.
We learned from testimony that Sobeys does take its responsibilities in this area very seriously and records its instructions and commitment to its employees on pages 6 & 7 of its employee handbook which reads, in part;

CONFIDENTIALITY OF

The Involvement of J. Lease and C. Taylor

One of the most significant pieces of testimony which does not appear to have been considered by the majority decision, took place at the hearing held on Thursday, January 9, 1992 when counsel for the respondent, asked Ms. Lease a series of questions with respect to the pleadings filed with the complaint on May 8, 1991 - specifically about Schedule C, and the follow-up letter from the applicant dated June 3, 1991, in which some corrections were made to the original Schedule C. It is important to take cognizance of the fact that Schedule C and the June 3, 1991 letter are the applicant's own documents. When asked by counsel for the respondent whether or not Schedule C and the June 3, 1991 letter accurately set out the matters being complained about, J. Lease replied that "yes, they did" and she agreed that she had reviewed Schedule C after the complaint was filed and that as a result of her review the June 3, 1991 letter was issued with corrections to the original pleadings.
Given that the pleadings through the above testimony became evidence before the Board it is appropriate to extract pertinent portions as they relate to various matters in this case. For example in paragraph 3 of Schedule C we learn that Ms. Taylor was not in fact a passive, innocent, in the matter of the preparation of the list of employee names and telephone numbers, (see paragraph 14 of the majority decision) but played an active role upon the specific request of a union representative. Paragraph 3 reads, in part;
On or about March 21, 1991, the grievors Jackie Lease and Chris Taylor were requested by a representative of the applicant union to compile a list of names, addresses and telephone numbers of all employees of the respondent. and to indicate the likelihood that each employee would be a union supporter. They were provided forms by the applicant for this purpose. The grievors Lease and Taylor duly compiled a list of approximately 90 employees on the forms provided by the Union,...

We learn further from Schedule C (amended) in paragraph 8:

At approximately 2:00 p.m. the grievor Taylor went home for her lunch break. Upon returning home, she learned that the grievor Lease had been fired. After considering the circumstances set out above, the grievor believed that she was going to be fired imminently. In order to avoid the humiliation involved in a termination, the grievor notified the Fm player that afiernoon that she was resigning from her position with the company.
When confronted with the list J. Lease readily admitted to her part in its preparation, and during the meeting with T. Gingrich and B. Hagan clearly left them with the impression that she was aware of the company rule that prohibits the release of such information to a third party and by her own admission agreed that she said to these two persons that she was sorry for what she had done (referring to the compilation of the list).
As J. Lease offered no acceptable explanation, when invited to do so, as to why she breached this company rule - her employment was terminated.
The potential consequences that could flow from a breach of this rule were of significant importance as to justify termination.
The Board heard testimony from the respondent that in view of the special circumstances surrounding the discovery of the list, that is, the obvious union involvement, that the employer exercised special care to ensure that any action that they took would not be in breach of any statute.
The company's decision to terminate the employment of Ms. Lease was appropriate for justifiable reasons, including:

The rule Ms. Lease clearly breached was a reasonable one; the rule was published and made available to Ms. Lease so that she knew or should have known of its existence; J. Lease signed the employee handbook under the section which reads:

We, the undersigned, acknowledge that proper review of all policies, procedures and beliefs of the Company has been completed with, and understood by, the undersigned employee. (Emphasis added).

"Jackie Lease"

(Signature)

"638" "G. Martin" "B. Wood"

J. Lease's actions in recording the names and telephone numbers was done in a clandestine, surreptitious manner - including the removal from G. Martin's desk of a "black book" - which was kept under lock and key - to obtain additional telephone numbers - indicate beyond question that J. Lease and C. Taylor knew that they were doing was wrong, and that they knew that what they were compiling was more than "... just a list of names".
Discharge was clearly an appropriate response to this serious breach of the company rule.

The applicant has chosen to ignore the fact that in addition to recording employees' telephone numbers, J. Lease and C. Taylor also recorded the employees' surnames. If as J. Lease maintains the telephone numbers could easily have been obtained from the telephone book (this in fact turned out to not be the case) it goes without saying that she and C. Taylor required the employees full names to begin with. From the evidence adduced this information was available only from the confidential list in the front end office. The other lists posted in other areas of the store did not contain such information, but as testified to by J. Lease most of the lists posted in the various departments contained only first names. J. Lease also testified that she was not aware of any lists of employees names posted anywhere else in the store that contained employees names and telephone numbers.
On questioning by counsel for the respondent J. Lease agreed that in compiling the list of employees' names and telephone numbers for the trade union, she used two sources of company-controlled information. The list in the front end office and a black book belonging to G. Martin the Front End Manager - which book was kept securely locked in Ms. Martin's desk. J. Lease testified that she unlocked the desk, removed the black book and used information contained therein to assist her in completing the list. This behaviour surely disputes any claim by the applicant that Ms. Lease was engaged in innocent activity. J. Lease knew exactly what she was doing and clearly knew that it was wrong.
It is quite obvious from the applicant's own pleadings that Ms. Taylor terminated her employment voluntarily believing, incorrectly, that she would be fired. Such belief I contend could only be based upon the active role she played in preparing, without authorization, the list of names and telephone numbers for use by a third party.
It is clearly wrong then to "reinstate" Ms. Taylor to a position that she voluntarily vacated - the employer had already assured her that her job was not in jeopardy and that she would continue to be employed as a part-time cashier.
The employer did not remove Taylor from front end office duties because she ranked employees for the union - as stated in paragraph 59 of the majority decision. Taylor was removed from front end office duties for her part in, and her knowledge of, the preparation of the list of names and addresses which had been prepared for transmittal to a third party contrary to stated company policy. Her behaviour in assisting in the preparation of the list and her knowledge of the unauthorized use of the list raised important questions about her future trustworthiness.
J. Lease was employed in a position of some trust at the time that she prepared the list for transmittal to the union - both she and the company viewed her to be in such a position by virtue of her job as Assistant Front End Manager (her reason for passing on to G. Martin information about C. Taylor and the "union meeting" was given by J. Lease who felt compelled to do so in view her perception of her function as supervisory). This position of trust gave J. Lease access to confidential information and the company had every right to expect that she would not abuse that trust - access to the front end office list was available to only a limited number of employees in the normal course of their duties.

Anti-Union Animus

It cannot, and should not, be inferred that because the majority of employees who work for Sobeys in their various locations have chosen to remain union-free, that the employer is anti-union. By providing an employment atmosphere to employees that is attractive and enlightened, which may have the effect of eliminating any interest employees may have in union representation, the employer, by investing in what they have described as one of their most important resources -their employees - cannot be judged on the basis of the employees free choice with respect to union representation - to be anti-union.
Let's look at Sobeys' performance at the Stratford location with regard to its views on unionization:

a) We know that there was a union presence right from the beginning -mainly verbal accounts, but occasionally some physical evidence in the form of hand-outs (leaflets). The applicant did not make a single allegation that the employer reacted in any negative way to any employees as a result of these union overtures.

b) We know that Ms. Lease approached Ms. Martin to advise her that Ms. Taylor was involved with a union - whether through an invitation to a meeting or that she actually attended a meeting is immaterial - the point is that Ms. Taylor's position within the organization was not affected adversely. J. Lease was obviously confident that her friend C. Taylor was not placed in any jeopardy by the revelation of that information to Sobeys' supervisory personnel.

c) The company's hiring practices show that there is clearly no basis for criticism - with respect to anti-union animus - paragraph 94 of the majority decision confirms this.

d) The employee handbook, where if the company was anti-union as the majority decision suggests, would be expected to reveal - even if in a subtle and oblique way such anti-union feelings, contains not one single reference throughout its nineteen (19) pages to a union(s) or even to third parties.

e) The document entitled "Realities of the Current Canadian business Environment and Economy" is a model of an employers attempt to communicate on a high plane - a compliment to the employees intelligence, and in thirteen pages of data and comment the word "union" is mentioned once - and then only in conjunction with "... shareholders, employees, and unions..." in the context of other businesses experience. The company was not challenged on the accuracy of this particular statement, nor the applicant did not allege that the statement in this document was misleading, untruthful, coercive, intimidating, threatening, contained promises or used undue influence - they simply objected to the use of the word "unions" in the section entitled Definition of Competition - without adducing any evidence to show why its use was not appropriate in the context in which it was used.

The meetings held with the employees subsequent to J. Lease's termination were not in the least unusual for Sobeys operations but were wholly consistent with its stated communications policies and ongoing practices. The fact that some discussion about unions took place is quite understandable in view of the purpose for calling the meetings in the first place. It is of significance to note that any comments made by the supervisors were made in response to direct employee questions and while the majority have chosen to find some of these comments to be of concern to them the ultimate advice to employees that they do in fact have the right to be represented by a union overrides any adverse interpretation they place upon the supervisors legitimate, appropriate, and certainly by Board standards acceptable comments.
What was the situation on April 4,1991 the day the decision was made to give J. Lease an opportunity to explain the circumstances relating to the preparation and disposition of the list -surely the crucial date for determining if there was any anti-union animus is that date and not subsequent unrelated events. The decision to terminate J. Lease's employment was made after all the facts were reviewed and was made in consultation with and approval of a senior level of management.

The Right of Free Expression

Section 65 of the Act explicitly permits an employer to make known its views with respect to trade unions with the words "... 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". In my view none of the testimony or evidence placed before the Board in the nine (9) days of hearings even remotely suggests a violation of this section.
With respect to the majority finding that the respondent violated Section 66 of The Act by holding several meetings and voicing its view that a union is not needed at Sobeys (the majority decision sees this as cause to find a violation of the Act while acknowledging that the employer stressed the rights of the employees to elect union representation (if that is their wish) I wish to note:
I cannot agree with what appears to me in the majority decision to be the intent of paragraph 90, that the combination of a compulsory meeting, attendance at which does not result in a loss in wages, and a discussion on the topic of unions contributes in some way to a finding of undue influence. The subject matter with respect to union representation at other employers was factual and did not contain any suggestion of a threat, or coercion, or intimidation. In fact, as the majority decision states, "All of this was punctuated with the clear statement that employees had the right to join a union". This is clearly not the behaviour we would expect of an employer who the majority decision would have us believe is anti-union.
As stated in the previous paragraph the meetings held with employees were in keeping with employer normal practices. To have not held these meetings could raise a further allegation -that by not holding the meetings and leaving employees in the dark as to why J. Lease was fired the employer was attempting to deliver an ominous message to all employees that J. Lease was fired for union activity.
In Vogue Brassiere Incorporated, [1983] OLRB Rep. Oct. 1737 it is recorded in para.

27:

Perhaps the most common employer response to an organizing drive is a statement of opposition to unionization. The Board has held in numerous cases that the expression of such opinions does not violate section 64. The clearest explanation of the rationale for this results is found in Playtex Ltd., [1972] OLRB Rep. Dec. 1027, at para. 5:

Apart from any electioneering or propaganda published by an employer, it is to be assumed that employees recognize that the employer is not usually in favour of having to deal with the employees through a trade union. Accordingly, it ought not be a surprise to the employees when the employer indicates that he would like to have the employees vote against the trade union. An invitation to employees to vote against the trade union delivered in writing in the absence of any surrounding facts or circumstances which would cause the employees to place undue emphasis on such statement cannot be characterized as undue influence within the meaning of section 56 of the Act. Indeed, employees might consider the fact that the employer is opposed to dealing with them through a trade union as evidence of the fact that union representation would work to the detriment of the employer and to the advantage of the employees.

See also Formfit International, [1966] OLRB Rep. June 193; Standards Brands Limited, [1972] OLRB Rep. June 653; Seven-Up (Ontario) Limited, [1970] OLRB Rep. May 198; K-Mart Canada Limited, [1981] OLRB Rep. Jan. 60.

Further Board jurisprudence supporting the employers right to free speech with respect to its views on remaining union-free can be found in Knob Hill Farms, [1987] OLRB Rep. Dec. 1531 we note the following in para. 22:

It was argued by the Union that the letter from Stavro had an impact on employees during the campaign. It was suggested that underlining the word "don't" in paragraphs 3 and 4, Stavro communicated to employees the Employer's desire to remain union-free. We have examined carefully the substance of Stavro's letter does not constitute a contravention of the Act. In our view, the letter does not come within the prohibitions in section 64 of the Act but rather comes within the caveat to the section guaranteeing employer free speech. In Dylex Limited, [1977] OLRB Rep. June 357 in paragraph 19, the Board noted that employees recognize that employers generally are nor in favour of having to deal with employees through a trade union, and therefore it ought not to surprise them when their employer indicates that he would prefer it if they voted against a trade union". Stavro's letter does no more than convey to the Oshawa employees that Knob Hill prefers to remain non-union.

In DeVilbiss (Canada) Ltd., [1975] OLRB Rep. Sept. 678 in para. 12 the Board noted:

In this case the following factors are relevant in our determination of whether there was any anti-union motive for the discharge: 1) the existence of a pattern of anti-union activity; 2) the extent of the respondent's knowledge of the existence of union activity and of the employee's involvement in that activity; 3) the manner in which the employee was discharged; 4) the credibility of the witnesses.

In considering the evidence adduced before the Board in our case - it's abundantly clear that: 1) There was no pattern of anti-union activity, indeed there was no anti-union activity whatsoever; 2) Up to the moment that the list was discovered there was no direct knowledge of union activity at the Stratford Location. The employees' (Lease and Taylor) involvement in using the list of employees names and addresses for unauthorized purposes is of course the just and reasonable cause for the action the respondent took. 3) The manner in which the discharge took place was exemplary - the evidence shows that the circumstances were fully explored; that management, at a very senior level in the organization, gave full consideration to the potential consequence of their action; that J. Lease and C. Taylor were given a full opportunity to explain their behaviour; and 4) on the matter of credibility, I am inclined to favour the version of events testified to by the respondents witnesses - where there is conflict with that of J. Lease and C. Taylor. The differences in the testimony given by the latter and the statements contained in the pleadings are too obvious to ignore and bring into serious question the credibility - even allowing that such differences may be due to difficulty in accurately recalling events - of the witnesses J. Lease and C. Taylor.

Summary

There is not a scintilla of direct evidence to support a finding that the respondent was ever anti-union and most certainly made its decisions with respect to J. Lease and C. Taylor without anti-union animus.
I believe that the respondent has discharged its "reverse onus" obligations under section 91(5) of the Act and has proven that:
The termination of J. Lease and the minor adjustment to C. Taylor's duties were both warranted.
The actions taken by the company were without anti-union animus.
In my view the majority decision exceeds the Board's jurisdiction - we were not asked to find that the employers policies prevented employees from making a choice with respect to union representation - there was no organizing drive, there were no membership cards signed, and it is safe to conclude from the evidence that, in view of the poor support that the union was confronted with as recorded in the evaluation of employees' interest, that the matter of union representation would not have been pursued. There was no union organizing drive and from the evidence before the Board there very likely would not have been any such drive in view of the lack of support for a union - the document which rated the eighty seven (87) employees in terms of support for the applicant clearly shows that only eight (8) or less than 10% were believed to be at all interested in the union.
The decision to terminate J. Lease was made at a very senior level in the Sobeys organization before any of the alleged anti-union incidents occurred. The Board's responsibility in these circumstances is not to apply events retroactively (the various meetings) but to focus on what were the circumstances leading up to and including the date of termination.
Does the majority decision stand for the proposition that if there is a union presence no matter how periphery or remote, employers are prevented from taking disciplinary action no matter how blameworthy is the conduct?
If as the majority finds there was anti-union animus in the termination of J. Lease how can the majority then advise the company to apply a lesser form of discipline when they have been found to have violated the Act. Paragraph 79 of the majority decision agrees that notwithstanding the finding that anti-union animus influenced the decision to discipline J. Lease, the employer would be justified in imposing some other form of discipline. The proposal, in my view, clearly supports the employer's right to impose discipline, for just cause, consistent with the pertinent provisions of the Act.
Again, does the decision stand for the proposition that if employees freely exercise their right of free choice with regard to union representation for whatever reason(s) and that choice is to remain union-free, then the Board can infer anti-union animus on the part of the employer regardless of what circumstances arise? Surely that can't be the message that the majority decision is meant to convey, but that may well be the one that is understood by this decision.
The respondent's position requires the Board to select only that evidence which supports the union's allegations and to pluck inferences out of the air from that limited evidence, ignoring the total context of events. It is my strongly held view that the evidence cannot support any finding of either anti-union animus or a violation of the Act.
For all of the above-noted reasons I would dismiss the complaint in its entirety.
Finally, with respect to the order to post a notice as per paragraph 92 of the majority decision, I refer to paragraphs 23 to 25 inclusive, in the Call-A-Cab dissent, [1991] OLRB Rep. April 448 and conclude that these comments also apply in this instant case:
Further, the humiliating and demeaning nature of the order requiring the employer to post a notice "confessing" to a breach of the Ontario Labour Relations Act is punitive by any social standard that we may apply.

Such a measure is not required of persons or organizations in any other legal context, of which I am aware. The effect of this order can only be counter-productive to any attempt to establish a workable labour relations climate.

The written decision in all Labour Board cases is a public document available to any citizen who wishes to obtain it and read it, and from which individuals can acquire full knowledge of the decision and any dissent.
The fact that the Board's practice with respect to these notices has been in vogue at the Board since 1976 makes it no less intrusive. I believe that its use should be abolished - or if that is not in the cards, then its use should be restricted to only those instances where unanimous decisions of Board panels agree that circumstances warrant such a serious measure. Certainly this case does not fall into that category.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE ISSUED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH BOTH THE COMPANY AND THE UNITED FOOD AND COMMERCIAL WORKERS' INTERNATIONAL UNION. LOCAL 1000A HAD THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT IN RESPECT OF THE SEVERITY OF THE PENALTY TO JACQUIE LEASE FOR RELEASING CONFIDENTIAL INFORMATION. THE EXCLUSION OF CHRIS TAYLOR FROM WORKING IN THE OFFICE AND COMMUNICATIONS ABOUT UNIONS IN MEETINGS WITH EMPLOYEES. COMPLAINTS ABOUT DISCIPLINING CINDY JONES. FAILING TO REHIRE BARB LESLIE. OUR HIRING PRACTICES AND MEETINGS AT GRIMSGY AND WODOSTOCK WERE DISMISSED.

THE BOARD HAS ORDERED US TO INFORM OUR EMPLOYEES OF THEIR RIGHTS.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS,

TO ORGANIZE THEMSELVES,

TO FORM. JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNION,

TO BARGAIN AS A GROUP THROUGH A REPRESENTATIVE OF THEIR OWN CHOOSING:

TO ACT TOGETHER POE COLLECTIVE BARGAINING,

TO REFUSE TO DO ANY OR ALL OF THESE.

SOBEYS INC.

PER: (AUTHORIZED REPRESENTATIVE)

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

This notice must remain posted for 60 consecutive working days.

DATED this 16th day of September ,1992.