National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) v. Reynolds-Lemmerz Industries, 1993 CanLII 7828

Ontario Labour Relations Board

[1993] OLRB Rep. March 242

3207-92-M National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Reynolds-Lemmerz Industries, Responding Party

BEFORE: S. Liang, Vice-Chair, and Board Members R. M. Sloan and B. L. Armstrong.

APPEARANCES: Michelle McPhee and Ben Guay for the applicant; David Corbett, Ray MacPherson and Jim Gray for the responding party.

DECISION OF THE BOARD; March 15, 1993

1This is an application for an interim order under section 92.1 of the Labour Relations Board. Section 92.1 reads:

92.1 On application in a pending or intended proceeding, the Board may grant such interim orders, including interim relief, as it considers appropriate on such terms as the Board considers appropriate.

2The National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) ("the CAW" or "the union") has filed a complaint alleging that Rey­nolds-Lemmerz Industries ("the company" or "the employer") has violated sections 3, 65, 67 and 71 of the Labour Relations Act. Pending the hearing of this complaint, the union asks the Board to order interim relief. Essentially, the union's complaint is that, during an organizing drive, the com­pany has intimidated employees and interfered with the organizing drive by distributing a letter to all employees (by attaching it to pay envelopes) and posting this same letter in the workplace. The fact that a letter was so distributed and posted is not disputed by the company, although it rejects the union's characterization of its conduct in creating and distributing the letter. The company dis­putes that it has violated the Act. It states that it is not unusual for it to communicate with workers by enclosing letters with paycheques. Further, the company states that this particular letter was issued in response to inquiries from employees. It was not disputed that the union is conducting an organizing drive, which commenced in approximately October, 1989.

3The content of the letter is as follows:

Jan 20/93

Reynolds - Lemmerz Industries

To All Reynolds-Lemmerz Industries' Employees:

It looks like the CAW is still active and pushing hard to sell you a membership into their shrink­ing union. Why not? It's their organizer's goal to get you to part with your money so he can keep getting paid, as well as all his co-workers who do not produce anything except false hope. Manufacturing jobs are being lost all over Ontario and Canada by Companies who are not prof­itable nor competitive. Reynolds-Lemmerz Industries, Your Company, is currently marginally profitable and competitive and working very hard to remain so.

Having reviewed the latest hand-out from the CAW on Volkswagen's wage rates which appear to be 20% higher than ours, I have done a simple calculation of increasing ours to match theirs and in doing this, can demonstrate that if we paid those wages over last years wage costs, we would have lost two and three quarter million dollars for the year. We are not Volkswagen nor do we have any other product line, such as catalytic converters, as they do, to offset their over­head costs. We manufacture wheels and that is the only source of our income.

Do not be fooled by misleading information from the CAW. Reynolds-Lemmerz Industries' management has fulfilled every one of our promises. We are doing our best, along with all of your efforts, to keep us on the right path to survive in these exceedingly tough times. We, as a Company, have captured all the work we can handle and our future looks very promising, as long as we continue to improve. We are operating well as a team, having overcome many prob­lems in the past months and years. Please do not let the union propaganda machine cloud your vision of the future because we cannot pay money we do not have.

For those employees who have been asking how to get their cards back, they must send a letter to the CAW, before the date of application for certification has been filed, stating - "Dear Union: I, the undersigned, resign my membership in your union, effective immediately, and no longer wish to be represented by you. Please return my signed card to me." The employee would then sign and date this letter, making sure a return address is included and a copy of the letter must be kept. Please note: sending the letter Registered mail or Priority Post will confirm that your letter has been received as these two postal systems require signatures upon receipt.

1993 is a year that bring with it a lot of challenges, I know we will measure well against them.

"Ray" Posted: January 1993

Ray MacPherson Removed: April 1993

4The union requests in this application the following interim relief:

(i) A Declaration that the Respondent Reynolds-Lemmerz Industries has violated sections 3, 65, 67 and 71 of the Ontario Labour Rela­tions Act;

(ii) An Order that the Respondent Reynolds-Lemmerz Industries imme­diately remove any and all copies of the letter marked as Appendix "A" to the Declaration of Ben Guay from the Respondent's produc­tion facility in Collingwood, Ontario;

(iii) An Order that the Respondent Reynolds- Lemmerz Industries cease and desist from any further acts of intimidation or interference into the rights of its workers to join a union or into the Applicant union's representation of its members, such acts including, but not limited to, communicating in any fashion with its workers where such com­munication involves counselling the workers to resign their member­ship in the union.

5At the hearing of this matter on February 10, 1992, the Board delivered the following unanimous oral ruling:

The Board issues the following interim order:

1. An order that Reynolds-Lemmerz remove from any area in which it has been posted in the workplace, the letter which is the subject of these proceedings.

2. An order that Reynolds-Lemmerz refrain from communicating with its workers where such communication involves counselling the workers to resign their membership in the union.

The Board declines to make any finding in this interim relief application as to whether the respondent has violated sections 3, 65, 67 and 71 of the Act.

6This order is effective until the disposition or settlement of the complaint. We now pro­vide our reasons for the ruling.

7This panel did not consider it appropriate to make findings with respect to the merits of the complaint, as the applicant has requested. The matter came before us on an expedited basis and was argued on the basis of signed declarations. The parties have neither agreed that this panel should hear the complaint, nor agreed on the facts which constitute the basis of the complaint. In the absence of such agreement, it would be inappropriate for us to turn an expedited hearing with respect to a request for section 92.1 relief, into a hearing into the merits of the complaint. Accord­ingly, we decline to consider the request for a declaration of a violation of the Act.

8In deciding the issue of interim relief, however, it is necessary for this panel to have some regard for the potential merits of the complaint. Interim relief is important to this applicant precisely because it serves to preserve rights pending the hearing of its complaint. It would be a distortion of the process if the Board granted such relief no matter how frivolous the complaint itself. The applicant urges the panel to find that it has established, at the least, a prima facie case. Counsel for the company suggests that the Board should look to see whether the applicant can show it is likely to succeed on merits of the complaint.

9In our view, the complaint makes out an arguable case. We need not determine to what extent the complaint makes out a strong case, viewing it in its most favourable light. Simply put, it is plausible that a panel hearing it may find that the Act has been violated, and order a remedy. We note that there have been occasions where the Board has found letters from an employer to employees in the context of an organizing drive to constitute violations of the Act.

10In this context, the goal of this panel's ruling is the preservation of the right of the union to a meaningful remedy, should the complaint be upheld, while at the same time intruding as little as possible on the employer's interests.

11Both counsel have submitted that the Board ought to look at the harm that would ensue to each of the parties' interests, should the Board grant or not grant interim relief (although they have used different terms, such as the "balance of convenience", or "significant harm" to describe the notion). We agree that the relative harm of granting or withholding relief is a relevant consid­eration. In our view, the harm to the union in this case relates to the adequacy of relief in the com­plaint. The allegations are that the letter, and the manner of its distribution, unduly influences employees in the exercise of their choice to join or not to join a union. If these allegations are proven, it will be difficult for the Board to order a remedy which truly places the union back in the position in which it would have found itself, but for the breach of the Act. By the time the com­plaint is adjudicated, there will be no returning to the point in the organizing drive prior to the actions of the company, particularly if they continue.

12Counsel for the company suggests that any potential harm which results from the actions of the company can be completely remedied by the Board's inquiries into the voluntariness of petitions and revocations which may be filed. At that stage in the process, it is submitted, the Board has a factual context in which it can determine whether there has been undue influence by the company in the employees' decisions to join or not join the union. The issues raised by the applicant are better dealt with in that factual context than in the application for interim relief.

13It does not appear to us that the Board's inquiries under section 8(7) of the Act are an answer to this application. Firstly, the applicant's allegations, among other things, are that the employer has unduly influenced all employees, not just those who have joined the union. Sec­ondly, counsel's comments are equally applicable to the complaint by the union as much as this application for interim relief. It would completely undercut the protections found in sections 65, 67 and 71 of the Act if the Board were unable to provide a remedy outside of its inquiries under sec­tion 8(7).

14We recognize that our order may have no remedying effect with respect to actions already taken. Nevertheless, they can serve to minimize the potential harm from this date forward and thereby enhance and complement the Board's remedial powers, should they be found neces­sary.

15On the other hand, the interim orders which we have made are not very intrusive on the employer's interests. They preserve the general right of the company to communicate with its employees. Pending the hearing of the complaint, the company is simply constrained from commu­nicating with its employees in one specific area. As well, pending the hearing of the complaint, the letter which is the subject of the complaint is to be removed from any place in which it has been posted in the workplace (although we have narrowed the order from that requested by the union, which could have included any copies contained in the company's files).

16Since the hearing in this matter, another panel of the Board has released its decision in 810048 Ontario Limited c.o.b. as Loeb Highland, Board File No. 2912-92-M [now reported at [1993] OLRB Rep. Mar. 197], the reasons for which we consider to be consistent with our findings herein.