Ontario Labour Relations Board
[1993] OLRB Rep. July 675
0583-93-U United Food and Commercial Workers' International Union, Local 1000A, Applicant v. Sobeys Inc., Responding Party
BEFORE: M. A. Nairn, Vice-Chair, and Board Members W. H. Wightman and C. McDonald.
APPEARANCES: M. Hart, K. Corporon, L. Taylor, C. Taylor and J. Lease for the applicant; K. A. McCaskill and D. W. Fearon for the responding party.
DECISION OF THE BOARD; July 13, 1993
1This is a section 91 complaint wherein the applicant (the "union") alleges that the responding party (the "employer" or "Sobeys") has violated sections 3, 65, 67 and 71 of the Labour Relations Act (the "Act").
2At the outset of the hearing the parties advised the panel that many of the issues raised by the complaint had been settled subject to their appropriate implementation. They therefore jointly requested that those matters be adjourned sine die. The panel so adjourned those aspects of the complaint. The remaining issue concerned allegations arising in respect of paragraphs 4 and 5 of Schedule "B" of the complaint concerning a letter issued to two employees by the employer. At the conclusion of the hearing, the panel ruled orally that the employer had violated sections 65 and 67 of the Act by including paragraph 4 in the letters and we declared that paragraph to be of no effect. The panel reserved on any further issue of remedy and advised the parties that our reasons would follow. We now provide those reasons.
3As a preliminary matter, the employer objected to the matter having been scheduled on an expedited basis. The applicant applied under section 92.2 for an expedited hearing and asserted in its pleadings that it has engaged and continues to engage in organizing activities at the employer's Stratford store. The employer took the position that it was incumbent on the applicant to prove that organizing activities were in fact being carried on in order to allow the applicant access to an expedited hearing. It was also concerned that it had not been consulted concerning the setting of the date for hearing. The applicant was prepared to proceed first and also offered to the responding party a "will-say" outline of the evidence to be tendered. The panel ruled the case would proceed. We noted that the scheduling of hearings is a matter within the Board's general discretion even absent any specific provision in section 92.2. The Board has rarely consulted the parties in setting the first day of hearing and in the most recent past, due to shrinking resources and an expanding jurisdiction, has advised the community that the Board has even less flexibility to accommodate counsels' schedule and the convenience of parties. There were no circumstances present which would warrant an adjournment.
4The relevant facts are fairly straightforward. To put this matter in context we review certain aspects of the parties' relationship leading up to the the letter in issue. These facts were agreed to between the parties in their pleadings.
5On May 8, 1991 a complaint was filed pursuant to section 91 of the Act alleging that Sobeys was in breach of sections 3, 65, 67, and 71 of the Act in firing, demoting, and disciplining a number of employees at its Stratford grocery store. Following nine days of hearing a decision of the Board dated September 16, 1992 was released. Pursuant to an order of the Board, the employer was directed to offer reinstatement to two complainants, Jackie Lease and Chris Taylor, employees of Sobeys. Following the release of that decision the employer applied to the Ontario Court, General Division, for a stay. The decision of that court was released on December 22, 1992 and an interim order issued directing the stay of the implementation of the Board's decision. An application by the applicant to the Ontario Court (General Division) to set aside that stay was granted on February 9, 1993. Following the release of that decision, the responding party agreed to reinstate the two individuals and arrangements were made for their return to work.
6On her arrival at work on March 31, 1993, Ms. Taylor was presented with a letter by Mike Layton, the store manager for Sobeys in Stratford. That letter, dated March 29, 1993 is described by the employer as setting out "some important points concerning your return to work at the Stratford store". Paragraph 4 of the letter which is in issue in this complaint states:
There is to be no union activity or discussion of union related issues on company premises.
7Ms. Lease reported for work on April 5, 1993. On her arrival, Mr. Layton presented her with a letter identical in content to the one given to Ms. Taylor. Paragraph 4 of that letter contains the same direction as quoted above. Employees at the Sobeys' Stratford store are entitled to two fifteen minute paid breaks during each eight hour shift and a one hour unpaid lunch break.
8The additional viva voce evidence simply established that upon their return to work the two employees were asked questions such as, "what happened?" and were only able to say that they could not talk about it, and that that inability contributed, in essence, to anxiety on the part of employees concerning the union's activity in the workplace. We note that this latter conclusion is somewhat speculative on the part of the two employees. However we do not believe it to be an unreasonable inference to draw from the circumstances that this response on the part of the two employees would send a message to their coworkers that discussing union related issues would draw a negative reaction from their employer. No evidence was called by the employer.
9The union asserted that the inclusion of paragraph 4 in the letter violates the Act and refers to the Board's caselaw that has developed under section 72 of the Act (colloquially referred to as cases regarding no-solicitation rules). It argued that the employer's conduct must also be seen in the context that this restriction was placed on two employees who were engaged in lawful union activity and who were returning to work after a lengthy absence pursuant to an earlier Board order and a finding that the employer had violated the Act. The union referred us to the following cases: T. Eaton Company Limited, (1985) OLRB Rep. June 941; The Adams Mine, Cliffs of Canada Ltd., Manager (1982) OLRB Dec. 1767; Time Air Inc. and Canadian Air Line Pilots Association, (1989) 3 CLRBR (2d) 233; Re Cadillac Fairview Corp. Ltd. et al and Retail, Wholesale and Department Store Union et al, 1989 CanLII 4334 (ON CA), 71 O.R. (2d) 206; and Royal Homes Limited, [1992] OLRB Rep. Feb. 199.
10In response, the employer accepted that the Adams Mine case, supra, appropriately characterized the state of the law until January 1, 1993. The employer relied on sub-section 11.1(2) of the Act and argued that it altered the law, at least with respect to property such as shopping centres or malls where its store is situate. The employer asserted that sub-section 11.1(2) now meant that employees and persons acting on behalf of a trade union had a right to be present on private property but that right was limited by excluding the workplace itself. The essence of the employer's position was that as of January 1, 1993, no union organizing activity could take place at any time in the workplace by employees or others. The employer drew a distinction between union organizing activity and other discussion. In response to the applicant's concern that these two employees have been unable to discuss the earlier Board proceedings and their results, counsel for the employer asserted (in the absence of any evidence) that it had not been the employer's intention to prevent employees from discussing that case.
11The panel rejected the employer's interpretation of sub-section 11.1(2). It is useful to first quote from Adams Mine, supra, generally considered as appropriately setting out the considerations underlying the balancing of interests involved:
An employer who nevertheless enforces a no-solicitation rule that has the effect of preventing employees from, for example, soliciting union membership on company premises during non-working time will be found by this Board to have intended this result and therefore to have acted contrary to section 66(c) [now section 67(c)] and section 64 [now section 65] of the Act unless the employer can establish by cogent evidence that its purpose was to preserve property, to prevent serious disturbance, ensure productivity or preserve plant safety. See Audio Transformer Company Limited, supra, page 1003. Where the latter is established, union solicitation that is seriously disruptive of managerial interests can be regulated by an employer even though the incidental [effect] is to constrain protected activity. In such circumstances, the Board construes the employer's actions as aimed solely at the preservation of its bona tide right to manage.
It is to be noted that the statute provides a more specific and different balance between an employer's property interest and the right of non-employees to solicit union membership from employees on company property. In this regard, section 11 provides that where employees of an employer reside on the property of the employer, the employer when directed by the Board, shall allow a representative of a trade union access to the property for the purpose of attempting to persuade the employees to join the trade union. Therefore, the statute acknowledges the right of an employer to raise his property rights against strangers to the employment relationship even though the strangers are union organizers and their involvement on company property during non-working time would not interfere with any bona fide management interest. The attempt here is to accommodate the right of property and the right or organize "with as little destruction of one as is consistent with the maintenance of the other". See N. L. R. B. v. Babcock and Wilcox Company (1956), 38 LRRM 2001 at 2004. If employees have the right to carry on organizing activity on company premises, it does not seem an unfair balance of interest to limit strangers to the usual channels of communication with those employees off company premises. See also the approach of the Supreme Court of Canada in dealing with competing proprietory and collective bargaining claims between strangers, in a case involving an employer's landlord and striking employees in Harrison and Carswell 75 CLLC ¶ 14,8286 (SCC).
From this analysis we arrive at the following general principles:
(a) No-solicitation or no-distribution rules which prohibit union solicitation on company property by employees during their non-working time are presumptively an unreasonable impediment to self-organization and are therefore invalid; however, such rules may be validated by evidence that special circumstances make the rule necessary in order to maintain production or discipline;
(b) No-solicitation or no-distribution rules which prohibit union solicitation by employees during working time are presumptively valid as to their promulgation, in the absence of evidence that the rule was adopted for a discriminatory purpose or applied unfairly; and no-solicitation or no-distribution rules which prohibit union solicitation by non-employee union organizers at any time on the employer's property are valid in the absence of an application for a direction pursuant to section 11.
12The employer argued that section 11.1(2) alters the law regarding the expression of an employee's right to engage in union activity in the workplace. The employer stated that it believed that this section was passed as a result of events arising in connection with an organizing campaign at an Eatons store in Toronto, but asserted that the language used created a different effect from what might have been intended. It relies on the sentence underlined below in section 11.1(2).
13Section 11.1 as a whole reads as follows:
Application
11.1-(1) This section applies with respect to premises to which the public normally has access and from which a person occupying the premises would have a right to remove individuals.
Right of access re organizing
(2) Employees and persons acting on behalf of a trade union have the right to be present on premises described in subsection (1) for the purpose of attempting to persuade employees to join a trade union. Attempts to persuade the employees may be made only at or near but outside the entrances and exits to the employees' workplace.
Right of access re picketing
(3) During a lock-out or lawful strike, individuals have the right to be present on premises described in subsection (1) for the purpose of picketing, in connection with the lock-out or strike, the operations of an employer or a person acting on behalf of an employer. The picketing may occur only at or near but outside the entrances and exits to the operations.
Prohibition
(4) No person shall interfere with the exercise of a right described in subsection (2) or (3).
Restrictions on right of access
(5) On application, the Board may impose such restrictions on the exercise of a right described in subsection (2) or (3) as it considers appropriate in order to prevent the undue disruption of the operations of the applicant.
Jurisdiction
(6) An application respecting the exercise or alleged exercise of a right described in subsection (2) or (3) may be made only to the Board and no action or proceeding otherwise lies at law.
(7) A party to an order made under subsection (5) may file it, excluding the reasons, in the prescribed form in the Ontario Court (General Division) and it shall be entered in the same way as an order of that court and is enforceable as such.
Conflict
(8) In the event of a conflict between a right described in subsection (2) or (3) and other rights established at common law or under the Trespass to Property Act, the right described in those subsections prevails.
[emphasis added]
14Sub-section 11.1(2) makes reference to "attempts to persuade the employees" and read in conjunction with the title of the sub-section is clearly intended to address union organizing activities. Paragraph 4 of the impugned letter covers a potentially vast category of union activity, reasonably including in our view, any discussion of the two employees' involvement in prior proceedings before the Board arising because of their support for the union. Sub-section 11.1(2) has no application in those circumstances and on that basis, the employer's arguments fail.
15To put it another way, sub-sections 11.1(2) and (3) address the issue of access to premises for purposes of organizing or picketing where access might otherwise be affected by the Trespass to Property Act. One example was alluded to by the employer in its reference to Eatons, where union supporters were required by Cadillac Fairview, owner of the shopping centre, to remove themselves from the Eatons Centre or be subject to prosecution for trespass. That action on the part of the property owner restricted the access that the trade union was able to obtain to the employees of Eatons because many entered the store from the subway directly via the shopping centre premises (see T. Eaton Company Limited, supra and Re Cadillac Fairview Corp. Limited et al, supra.
16These individuals are attending at work as employees, and in that context have access to the premises. The issue raised by challenging the inclusion of paragraph 4 in the letters is the extent to which an employer can legitimately interfere with the exercise of employees' lawful rights in the workplace. The effect of the employer's interpretation would be to take away an existing employee right. Section 72 of the Act has not been amended or repealed. Adams Mine sets out the balance that has been struck between an employer's proprietary and commercial interests and the employees' interests. In our view, that reasoning remains appropriate to the circumstances here.
17Paragraph 4 of the letters given to the two employees is presumptively objectionable as it includes a prohibition against the employee engaging in any union activity or discussion of union related matters on their own time although on company premises. The employer led no evidence of circumstances that might warrant this restriction. While we are further troubled by the fact that this prohibition appears to have been implemented only in respect of these two employees who have already been found to have been penalized by the employer in violation of the Act, it is unnecessary to draw any conclusion as to whether that fact alone would also constitute a violation of the Act in the circumstances. We were satisfied that the inclusion of paragraph 4 in the two letters violated sections 65 and 67 of the Act and so declared that paragraph to be of no effect.
18The union requested that we also direct that there be a posting in the workplace that provided for effective communication to employees regarding their rights, and specific and particular assurance that those rights would be protected. On careful consideration, we are not however satisfied that a posting makes sense in these circumstances. We have declared that the employer has violated sections 65 and 67 and have made clear to the parties that paragraph 4 of the letter was rendered ineffective. Those letters were only sent to those two employees. Other employees have not been advised of any such purported restriction on their activity and may well be unaware of the contents of paragraph 4. The union would have us advise employees that they are entitled to discuss union activity on their own time even on company premises. That however may well be an inappropriate restriction on employees' rights in the absence of an employer "no solicitation" rule. The employer may, on the other hand, be entitled to promulgate such a rule provided it does not otherwise contravene the Act. The precise exercise of the employees' rights is therefore not fixed. In addition, these two employees no longer suffer the restriction of paragraph 4 and will be able to discuss union matters with their co-workers which, in itself, will serve to assist in reducing any chilling effect. We are not persuaded that in these particular circumstances, a posting that is merely declaratory of the employer's violation in the absence of either its factual context or an ability to clearly affirm the employee's rights, is appropriate. For those reasons we therefore decline to order any further remedy.