United Steelworkers of America v. Wal-Mart Canada, Inc., 1997 CanLII 15529

[1997] OLRB REP. JANUARY/FEBRUARY 141

0387-96-R; 0453-96-U United Steelworkers of America, Applicant v. Wal-Mart Canada, Inc., Responding Party

BEFORE: Janice Johnston, Vice-Chair, and Board Members R. W Pirrie and H. Peacock.

APPEARANCES: Marie Kelly, David Doorey, Jeff Peltier and Shaheen Hirani for the applicant; Steven McCormack, Robert Wasserman, Paul Hayward, Paul Ratzlaff and Kerry Jameson for the responding party.

DECISION OF JANICE JOHNSTON, VICE-CHAIR, AND BOARD MEMBER H. PEACOCK; February 10, 1997

1. File No. 0387-96-R is an application for certification in which a representation vote was conducted on May 9, 1996. File No. 0453-96-U is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violations of section 70, 72, 76 and 86 of the Act. In addition, the applicant, the United Steelworkers of America (the "Union") has asked that the Board certify it pursuant to section II of the Act. The union asserts that due to the conduct of the responding party, Wal-Mart Canada Inc. (the "Company" or "Wal-Mart"), the results of the representation vote do not reflect the true wishes of the employees on the issue of union representation. While the union has asserted numerous breaches of the Act by the company, the key allegation in the union's view is that the company raised issues of economic and job security with the employees and then refused to answer questions asked on these matters. In the union's view, the company's failure to answer the question "will the store close if the union is successful" led the employees to conclude that the store would in fact close if the union was successful. Therefore, the union requests that the Board set aside the vote and certify the union pursuant to section 11 of the Act.

2. For the reasons which follow, we have concluded that it is appropriate to certify the union pursuant to section 11 of the Act.

3. At the conclusion of the hearing both parties requested that the Board issue a "bottom line" decision with written reasons to follow. Given the nature of this case, we have determined (and upon this the panel is unanimous) that it is appropriate to issue the following decision with abbreviated reasons. Having considered all of the evidence and the submissions of counsel, we have determined that it is not necessary nor is it appropriate to provide reasons on or deal with all of the issues in dispute. We have decided upon this approach for several reasons. Firstly, this hearing was extremely lengthy consuming thirty-five days and lasting from June 3,1996 to December 19, 1996. While the delays were largely unavoidable, we feel it would be inappropriate to delay the resolution of this matter any longer than is absolutely necessary. If we were to provide our conclusions on all of the disputed matters, the delay could be significant.

4. We are also of the view that it is not appropriate to deal with all of the matters in dispute because to do so would not be in the best interests of the parties or the employees. The union has alleged that numerous actions or behaviours engaged in by the employer constitute violations of the Act. The evidence called by the parties on many of these matters is contradictory. The Board, in providing reasons with regard to these issues, would be required to make numerous credibility calls. The hearing made it abundantly clear that there are two significantly polarized groups of employees in this workplace, those in favour of the union and those opposed to the union. Were we to make the credibility calls necessary to) decide all of the issues in dispute, this could further polarize the employees and would unquestionably not assist the union and the employer in the new relationship upon which they are embarking as a result of this decision. It is not in the interests of positive long term labour relations to put all of the events in this workplace leading up to the vote under a microscope and analyze them. Therefore, although we considered all of the evidence and submissions of counsel, to avoid further poisoning an already damaged relationship we will not deal with, for example: the controversy concerning the notes of Mr. Paul Ratzlaff and the impugned conduct of counsel with regard to the expert's report; the union meeting on May 8th and the events that occurred thereafter; the issues raised with regard to) barbecue draws and the wearing of "pins"; the disputed aspects of Ms. Passador's speech; the letters sent to employees by the company; and the Globe and Mail article.

5. We do feel that it is appropriate to issue the abbreviated reasons that we are providing, because to simply issue a bottom line decision devoid of any reasoning would fuel the controversy that this decision will no doubt cause amongst the employees in this workplace. As is not surprising, strong views, both for and against the union are held by some of the employees in this workplace. We feel it is important that the employees and the parties have our reasons for reaching the conclusions that we did.

6. The sections of the Labour Relations Act, 1995 relevant to this decision are as follows:

11.(1) Upon the application of a trade union, the Board may certify the trade union as the bargaining agent for the employees in a bargaining unit in the following circumstances:

1. An employer, employers' organization or person acting on behalf of an em­ployer or employers' organization has contravened the Act.

2. The result of the contravention is that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

3. No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.

4. The trade union has membership support adequate for the purposes of collec­tive bargaining in a bargaining unit found by the Board to be appropriate for collective bargaining.

(2) Upon the application of an interested person, the Board may dismiss an application for certification of a trade union as the bargaining agent for the employees in a bargaining unit in the following circumstances:

1. A trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions has contravened the Act.

2. The result of the contravention is that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

3. No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.

(3) The Board may consider the results of a representation vote when making a decision under this section.

(4) Subsections 10(b and (2) do not apply with respect to a representation vote taken in the circumstances described in this section.

70. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administra­tion of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

71. No employer, employers' organization or person acting on behalf of an employer or an employers' organization.

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employ­ment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

76. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

77. (I) Where notice has been given under section 16 or section 59 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or conditioii of ernploymens or any right, privilege or duty of the employer, the trade union or the employees,

(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and,

(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or

(ii) 14 days have elapsed after the Minister has released to the parties a notice that he or she does not consider it advisable to appoint a

conciliation board,

as the case may be; or

(b) until the right of the trade union to represent the employees has been termi­nated, whichever occurs first.

(2) Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer or the employees until,

(a) the trade union has given notice under section 16, in which case subsection (I) applies; or

(b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union.

(3) Where notice has been given under section 59 and no collective agreement is in operation, any difference between the parties as to whether or not subsection (I) of this section was complied with may be referred to arbitration by either of the parties as if the collective agreement was still in operation and section 48 applies with necessary modifications thereto.

7. The company is what was described as a 'junior" department store engaged in the selling of merchandise to the public. The store which is the subject of the application for certification is located in Windsor.

8. Wal-Mart is an American company which in January, 1994 acquired 122 of 144 stores owned and operated by Woolco in Canada, including the Windsor store which is the subject of this application. None of the 122 stores acquired were unionized although 9 of the 22 stores not acquired were unionized. Wal-Mart currently operates 2600 stores world-wide in countries such as China, Brazil, Argentina, Mexico, Puerto Rico and the Philippines. None of these stores are unionized. Wal-Mart is currently planning further expansions and in fact has been expanding.

9. The company employs full-time and "peak" time or part-time associates. Full-time associ­ates work from 28 to 37 hours per week and peak-time associates work from 6 to 27 hours per week. The store is open from 9:00 am. to 9:00 p.m. Monday to Saturday and from 11:00 a.m. to 5:00 p.m. on Sundays. The full-time employees generally work Monday to Friday on a day shift. Peak-time associates fill in hours whenever necessary. The management structure at this store consists of a Store Manager, Mr. Andy Johnston, and 6 assistant managers. There are 40 departments in the store and each one has a person in charge of that department. The department managers are not managerial in the way in which the Board defines that term and the parties have agreed that they are members of the proposed bargaining unit. Above the store manager, is a District Manager, Mr. Tino Borean, who is responsible for a total of 8 stores located in London, Windsor, Sarnia, Chatham and Goderich. The company's head office or "home" office as it was referred to in this case, is located in Toronto. Mr. Jon Sims, the Regional Vice-President of Operations for Region 2 in Canada (Windsor being in Region 2), Mr. Paul Ratzlaff, Director of Associate Relations and Ms. Karen Duff, a Regional Personnel Officer, all work out of the home office.

10. Mr. Johnston, Mr. Sims and Mr. Ratzlaff all testified before the Board. We heard a great deal of evidence regarding the company's practices and procedures and what was referred to as the Wal-Mart culture. Wal-Mart seeks to promote an atmosphere or "culture" in its stores which is positive and friendly, customer oriented and in which associates work together as a family or team. The company has put together an associate handbook which is given to new employees. The introductory/covering letter in this handbook articulates this approach:

Welcome to the Wal-Mart Family! When my brothers and sister and I were growing up, we always worked in Dad's stores - sweeping floors, carrying boxes, even running the ice cream machine. I remember feeling that all the associates in the store were part of the family, always willing to pitch in and help each other. The Company has grown from just a handful of stores to over 2,000 stores today, but every day I still see examples of that "family attitude" we all shared back then. It is possible for a business as big as ours to keep that feeling of belonging, of working together to make a positive contribution to our communities and our country.

As we grow, one of the biggest challenges we face is "thinking small". We all need to pay attention to the details that have made Wal-Mart such a success - keeping the aisles clean and the shelves stocked, thinking of new ways to display and merchandise items, and always giving our customers the very best service. But the most important thing we can do is to respect the talents and individuality of our fellow associates. If we do all these things, if we consider ourselves as members of a wonderful extended family, there's no limit to what we can accomplish!

The next few years promise to be very exciting. We have expanded onto the international market and have transplanted our terrific Wal-Mart way of doing business - customer service, great values and respect for each other - to other countries. Our distribution centres, clubs and stores at home will continue to post record results, thanks to your hard work and dedication. There will be plenty of opportunities for associates to learn and grow.

Let's get out there and do the very best we can, and take pride in the fact that we're all members of a family that really cares... the Wal-Mart family.

Thanks for doing such a great job, always!

"Rob Walton"

Rob Walton

Chairman, Wal-Mart Stores, Inc.

11. An extremely important facet of the Wal-Mart culture is the company's commitment to communicating with the associates, treating them as partners and empowering associates to speak up, make suggestions and ask questions. Mr. Ratzlaff testified that the associates at Wal-Mart are viewed fundamentally differently from how most companies in his experience view employees. In his view Wal-Mart goes beyond attempting to treat the employees as partners and actually treats employees such that they see themselves as partners. The company has implemented various policies to facilitate this atmosphere of openness and communications. Two policies we heard a great deal about are the "open door" policy and the "sundown rule". The open door policy is intended to encourage employees to feel that they can approach any member of management, including home office managers, on any issue and expect an answer without fear of reprisal. The sundown rule is intended to ensure that a manager who has been asked a question responds with an answer before sundown the same day. Mr. Ratzlaff in explaining the company's approach to its employees describes associates as having two rights. The first right was referred to as "a right of access" and was described by him as the right of an associate to "raise anything they want to about the business with anyone they want to at any time". This right is supported by policies such as the open door policy. The second right of associates referred to by Mr. Ratzlaff was the right "to get answers quickly to whatever they ask". Evidence of this right is the sundown rule. The next employee right or "cornerstone of Wal-Mart's culture" referred to by Mr. Ratzlaff was the fact that in his words "associates are told everything about the business that we can think of to tell them. We freely share very proprietary information with them, in satellite broadcast, newsletters and daily store meetings. No subject is taboo and they know it to my understanding". The final cornerstone in the Wal-Mart culture as described by Mr. Ratzlaff, is once again in his words "that we seek to promote a family atmosphere, so there is no respecting of rank. At a family gathering it doesn't matter if a person is a medical doctor or a pipefitter, you all have equal status". In Mr. Ratzlaff's view these cornerstones create very high expectations amongst the associates that they will get lots of fast answers.

12. Also in support of its goal of regular information sharing with its employees, Wal-Mart holds daily meetings with its staff. The daily morning meeting is held at 8:45 a.m. and is attended by all associates scheduled to commence work up to 9:00 am. in the morning. This meeting is held at the front of the store near the courtesy desk. The meeting in this Windsor store is run by either Mr. Johnston or in his absence one of the assistant managers. At this meeting management provides financial information such as sales figures for the previous day as well as information concerning who the top performing department and individuals were on the previous day. New items of stock are discussed as well as issues around safety, shrinkage and loss prevention. An exercise to help associates limber up is also done. The Wal-Mart culture is often discussed by reference to the history of the store and its founder, Sam Walton. Associates are encouraged to participate, become involved and ask questions. The meeting normally ends just before 9:00 a.m. with the Wal-Mart cheer and then the store opens its doors to customers. An additional meeting is held every day after the store closes at 9:00 p.m. It follows the same format as the morning meeting and is an opportunity for the company to provide information to those employees who are not working in the morning and did not attend the morning meeting.

13. The union commenced its organizing drive on April 14, 1996. The strategy utilized by the in-house organizers in getting employees to sign cards, was to approach employees in the parking lot who were on route or at their cars after having completed their shift, and to ask them to sign a union card. On May 2, 1996, the union filed an application for certification accompanied by 91 membership cards in support of its application. By decision dated May 7, 1996, the Board directed that a representa­tion vote be conducted on May 9, 1996. At the vote, 205 employees voted, 9 ballots were segregated and not counted, 43 ballots were cast in favour of the union and 151 ballots were cast against the union. Between April 14, 1996 and April 27, 1996, the union collected a total of 84 cards or an average of 6 cards per day. Between April 27 and May 2 (a period of 5 days) the union collected a total of 7 cards. The relevance of these numbers will be explained later in this decision.

14. The company became aware on April 26, 1996 that associates were being approached to sign union cards. An associate advised Mr. Johnston of this fact. As he had previously been instructed to do, Mr. Johnston immediately telephoned Mr. Ratzlaff to tell him of the union's organizing drive. Mr. Ratzlaff is Wal-Mart's labour relations specialist. Prior to being employed by Wal-Mart Mr. Ratzlaff worked for Woolworth. From 1973 to 1989 he held a variety of managerial positions in Woolco stores and eventually was promoted to the position of Director of Personnel for the Woolco division in 1989. In 1992 he was promoted to Director of Labour Relations for Woolworth Canada. Mr. Ratzlaff told the Board that he was quite familiar with the legal and procedural framework concerning union organizing drives.

15. The first thing Mr. Ratzlaff did was to telephone Mr. Borean to advise him of the situation. Mr. Borean then contacted Mr. Johnston and told him that he would come to the store the next day, Saturday, April 27, 1996 for the morning meeting. Mr. Borean indicated that he was planning a trip to Windsor for that day to attend the t'uneral of an associate who had worked in the other Windsor store. At the end of this conversation, Mr. Johnston directed one of his assistant managers to telephone all of the associates scheduled to work the next morning to) tell them to ensure that they reported for work in time for the morning meeting as Tino Borean was coming to visit the store. Mr. Johnston bad the employees contacted because it was the l'irst time Mr. Borean had attended a Saturday morning meeting and he wanted to make sure that all of the scheduled associates attended the meeting and had a chance to hear what Mr. Borean had to say. It was highly unusual for the company to call employees in this fashion and Mr. Johnston was unable to think of another occasion when it had occurred.

16. Approximately 25 to 30 associates attended the morning meeting on April 27th. After concluding the usual routine, Mr. Johnston introduced Mr. Borean and Mr. Borean spoke. Mr. Borean indicated that he was in Windsor to attend the funeral of an associate who had worked at the other store in Windsor. There is some dispute as to what Mr. Borean said next. Mr. Johnston testified that Mr. Borean then indicated to the associates that he had heard that associates were being approached by other associates in the parking lot to sign union cards. Mr. Borean indicated that if anyone had any questions he would be there for the day to answer them, other than the couple of hours he would spend at the funeral. Ms. Mary McArthur, one of the unio)n's inside organizers was at this meeting. She testified that Mr. Borean said that he had heard that there were people going around trying to sign union cards, that he was at the store to find out why people thought they needed a union and that he would be coming around the sales floor to talk to people about that. Ms. Debbie Kulke, a peak-time associate called by the company to give evidence about this meeting, gave another version of what was said by Mr. Borean at the meeting. She indicated that Mr. Borean stated that he knew that there was some talk about a union going on, that he would be in and out of the store, that he was going to go out and ask people if they had any questions or concerns and that he would be there if anyone had any questions or concerns. If anyone wanted to speak to) him they were to feel free to do so. Ms. Norma Passador, another associate called by the company to testify indicated that Mr. Borean said that he had heard there was talk about a union. In her words, "later on he would like to go around and talk to associates and see if there was a problem and if he could handle it himself'. There was no dispute that after Mr. Borean finished speaking that Ms. McArthur spoke out saying to the associates gathered that it was illegal for management to interfere or coerce or intimidate them to change their decision, that they had a right to be part of whatever was happening and that they did not have to speak to management. After the meeting concluded Mr. Borean did circulate throughout the store speaking to employees for the majority of the day. We heard no evidence as to the substance of those conversations.

17. Although it appears he is still employed by the company, Mr. Borean was not called upon to testify. Counsel for the company indicated that he was not called upon to testil'y as the company felt it was sufficient for the Board to have heard the evidence of Ms. Passador and Ms. Kulke concerning what Mr. Borean said at the meeting. The employer was aware that Mr. Borean's conduct at this meeting and his individual conversations with associates thereafter was asserted by the union to be a violation of the Act. The union has urged us to draw an adverse inference from the company's failure to call Mr. Borean. The union urges us to prefer the testimony of Ms. McArthur regarding what Mr. Borean said and did on April 27, 1996. In the circumstances it is appropriate for us to draw an adverse inference from the company's failure to call Mr. Borean. We therefore conclude that Mr. Borean, had he been called to give evidence, would not have given evidence favourable to the company. We accept Ms. McArthur's version of what was said by Mr. Borean to the associates gathered at the April 27th meeting, and that after the meeting he circulated throughout the store asking people why they wanted a union. As further support for our conclusion, we would point out that the evidence given by Ms. Kulke and Ms. Passador, who were called by the employer, while not exactly the same as Ms. McArthur's evidence, collaborates the fact that Mr. Borean acknowledged that he was aware of the union's organizing drive and that he was going to go around the store and speak to associates to see if they had any concerns or problems.

18. The line between legitimate employer persuasion and unlawful intimidation or undue influence must be determined on the particular facts of each case. The company contacted the associates scheduled to work on April 27th and told them to ensure that they were at work in time for the morning meeting as Mr. Borean would be attending the store. This was an unprecedented call and sent the message to employees that the meeting was important. The associates who attended this important meeting then heard from Mr. Borean that he is aware of the union and will circulate throughout the store to discuss presumably either in small groups or individually with associates, why they wanted a union or what problems or concerns they had causing them to want a union. Mr. Borean then circulated throughout the store speaking to employees. While the conduct of Mr. Borean is not a violation of the Act, it sets the tone for what is to follow. In addition, not surprisingly, the union's organizing drive began to falter shortly after Mr. Borean's visit.

19. On Monday, April 29, 1996, Ms. Norma Passador, an associate, approached Mr. Johnston and asked if she could speak at the morning meeting the next day. Mr. Johnston agreed. Ms. Passador did not volunteer and Mr. Johnston did not ask what she wanted to speak about. On Tuesday, April 30th, at the conclusion of the regular morning meeting, Mr. Johnston asked if any associates had any questions and Ms. Passador stated that she had something she wanted to read. She read the following speech:

I have asked to come here this morning as a concerned associate to voice my opinion against the "alleged" rumor [sic] of a union trying to be put in this store. I have worked in this building for 20 years, 18 with Woolco and the same as many of you with Wal-Mart. When Wal-Mart took over Woolco they let us keep our years of seniority for pension, vacation & rate of pay, this is something they did not have to do. but to me as a senior associate it meant a lot.

The young people in the store that have started this do not realize the consequences involved. For some of them the company is not their future when they finish their schooling they will leave and move on to better jobs in their fields, but for the rest of us this is our only income. I for one would like to know what they think they are going to receive from this action.

I believe we receive what other dept. stores have and then some. I know some of you think when we get our annual raise it should be more this is the retail business and that is how it is run. Eventually even big businesses such as the auto companies will have to accept lower wages. A union will only cause discontentment in our store and I assure you as I am standing here Wal Mart [sic] will not put up with this.

I cannot be called a company person because I complain like everyone else if not more. But I am for for [sic] what's best for me and a union is not it.

Also a word to the associates who have started this. Remember the old ruling used to be 51% and the union is in. WRONG every person must have a vote, because now the government steps in and posts a notice in the store when a vote will be taken and we all vote and remember as far as I am concerned the union is not your friend, it is the friend of people who don't like to work. Also please remember that there are people working in union places that do not get all the benefits we have and you all know what they are. Also if anything if anything [sic] comes of this I assure you I will be one of the first associates to cross a picket line because I need my job.

Thank you for listening to me this morning.

20. When Ms. Passador finished speaking there was considerable commotion. Some of the associates present applauded Ms. Passador's speech, others did not. Either Ms. McArthur or Mr. Dave Cartier (another inside organizer), or both, indicated that they wanted to respond to Ms. Passador's speech. Mr. Borean, who was in attendance at the meeting, did not allow either employee to speak and ended the meeting. He indicated that it was time to open the store as they had customers waiting. It was either 9:00 o'clock or shortly after 9:00 a.m. when the meeting ended.

21. Later the same day Mr. Johnston approached an associate, Jamie Campbell, while he was working. Mr. Johnston opened the conversation by telling Mr. Campbell about the morning meeting, as Mr. Campbell worked an evening shift, either 4:00 p.m. to 9:30 p.m. or 5:00 p.m. to 9:30 p.m. Mr. Johnston then asked Mr. Campbell if he knew what was going on in the store regarding the union and Mr. Campbell answered that he did. Mr. Johnston asked Mr. Campbell if he had been approached by anyone from the union about signing a union card and Mr. Campbell answered that yes he had been approached. Mr. Johnston next, in Mr. Campbell's words, "went on to say something along the lines of a union would not necessarily benefit the store because all of the benefits and everything would have to be bargained for and he also suggested that neither side would have to agree to any specific details". The benefits or details referred to are what are called stakeholder payments or the profit sharing programme. The last thing mentioned by Mr. Johnston to Mr. Campbell was that some employees had been tricked into signing union cards as they were being told they were signing the card to get more information. Mr. Johnston then advised Mr. Campbell to use his own judgement when he was making dccisions.

22. The union's application for certification was filed with the Board and delivered to the store on May 2, 1996. As Mr. Johnston was on a day off that day, the assistant manager who received the application contacted him at home to tell him of the application. The assistant manager also contacted Mr. Ratzlaff to advise him of what had occurred. Mr. Ratzlaff had the assistant manager fax him the application. Mr. Ratzlaff then contacted Jon Sims and Tino Borean to advise them of the application. In light of the union's application, Mr. Ratzlaff decided to go to the Windsor store the next day. That evening Mr. Ratzlaff, Jonathan Hamovitch, Vice-President of Human Resources Wal-Mart Canada and Robert Wasserman, in-house counsel for Wal-Mart met with counsel who acted on behalf of the company at the hearing. The union's application and the company's response to it was discussed at this meeting. Mr. Ratzlaff was the company official responsible for all matters pertaining to the union's application for certification, the actions taken by the company with regard to it and all of the decisions made on this matter.

23. At the meeting that evening, issues such as the bargaining unit description, the timing of the vote, and the voting process were discussed. In addition, Mr. Ratzlaff anticipated that when he arrived at the store in Windsor he would face a challenge in dealing with associate questions with regard to the representation issue. As Mr. Ratzlaff put it "I knew or I at least believed that I would be busy because o)f Wal-Mart's culture of openness and associate expectatio)ns that we would speak candidly about any issue they would choose to raise. I attempted to anticipate the kind of issues and questions that would be raised or asked. I sought the advice of counsel on how to deal with and answer questions with respect to the vote and the voting process. with respect to the company's conduct leading up to the vote and with respect to all of those questions I knew would come regarding what the future might hold for associates and the company and questions regarding what the company might or might not do as a result of the vote". Mr. Ratzlaff's views with regard to the questions he anticipated were also based on the previous experience he had had with regard to union organizing drives in the Woolco stores. Mr. Ratzlaff telephoned Mr. Johnston from the meeting and cautioned Mr. Johnston, and through him his management team, not to answer any questions with regard to the union until Mr. Ratzlaff arrived. He also told Mr. Johnston to put up a question and answer box. The purpose of this box according to Mr. Ratzlaff was to ensure that the employees had a full opportunity to) ask questions in case there were no managers available to answer their questions or in case an employee wanted to ask a question a second time. Also, the question and answer box was to provide a way for the employees to ask questions anonymously.

24. After Mr. Ratzlaff left the meeting that evening he decided that it would be appropriate to) take some other managers with him to assist in answering employee questions. He anticipated that due to the short period of time before the vote and the Wal-Mart culture, that he would need some assistance in dealing with the questions. Accordingly, the next day, May 3, 1996, he told John Sims and Karen Duff, the Regional Personnel Manager responsible for Windsor, that he wanted them to accompany him to Windsor. In addition, Mr. Borean was directed to meet them in Windsor on Friday evening. This was the first time that such a large contingent of home office managers had attended at an individual store for what would be an extended period of time.

25. Mr. Ratzlaff called Mr. Johnston and confirmed that the notice of the application had been posted in the store and advised Mr. Johnston that a group of managers would be attending at the store. Later in the day when Mr. Ratzlaff again spoke to Mr. Johnston by telephone, Mr. Johnston informed him that the response by associates to the posting was extraordinary and that there was a long line-up of people outside his door waiting to ask him questions about the union's application. Mr. Ratzlaff told Mr. Johnston to tell the employees that help was coming to answer their questions and would be there soon. As a result of his conversation with Mr. Johnston, Mr. Ratzlaff concluded that he needed to prepare and brief the three managers who would be assisting him in Windsor with regard to the union representation issue. He met with Mr. Sims and Ms. Duff before they left for Windsor. Mr. Ratzlaff spoke to them about the manner in which they were to approach the visit to Windsor and of the obligations and expectations placed on the company by the law. Mr. Ratzlaff advised them how to answer questions and gave them some specit'ic examples. Some of the questions discussed concerned issues employees might raise such as: "what will change", "will we keep our benefits", "what would happen after the vote" and "what would the company's attitude towards continuing to operate at that location be after the vote". Mr. Ratzlaff told them that the company could not threaten, intimidate, unduly intluence employees or make promises or tell lies. He advised them that questions regarding what might happen if the union was successful would have to be answered in a way that did not threaten, promise or lie. Therefore Mr. Ratzlaff told Mr. Sims and Ms. Duff that those type of questions noted above would have to be answered by telling associates, in his words, "that we couldn't comment on those issues, that it would be inappropriate for us to) do) so, and that that was all we were able to say in response to those questions at that time".

26. When Mr. Ratzlafl', Mr. Sims and Ms. Duff arrived in Windsor they checked into their hotel and met with Mr. Johnston and Mr. Borean. Mr. Johnston advised them that the tension in the store was incredible so the first item discussed was how the group of managers might defuse the tension, calm the store and continue to serve the customers. Mr. Ratzlaff told the managers how he wanted the morning and evening meetings approached in the days leading up to the vote. He felt due to the Wal-Mart culture that questions regarding the union would come up at these meetings and he wanted to ensure they were handled properly. Therefore he told the management that until the vote was held that he would decide and plan which managers would speak at the meetings and what they wo)uld say. Mr. Ratzlaff indicated that he wanted to bring more structure to the meetings before the vote, therefore he would determine the appropriate content for the meetings. Mr. Ratzlaff then had the same conversation with Mr. Borean and Mr. Johnston that he had had with Mr. Sims and Ms. Duff with regard to the questions he anticipated receiving from the associates and how to answer them.

27. On Saturday, May 4, 1996 Mr. Johnston ran the morning meeting. Mr. Ratzlaff, Mr. Sims, Mr. Borean and Ms. Duff were present at the meeting. Mr. Johnston read from a prepared text and told the employees present at the meeting the following:

The Steelworkers Union applied to the labour board to get in at this store. The labour board will now check to see if the union has enough support for the board to hold a vote on the issue. Does this mean that the union is in? No! It means the union has applied to get in. The union can not [sic] get in until it has a vote. That vote would be by secret ballot and everyone get [sic] to vote no matter if they have signed or not signed a union card.

I want to be sure we get the right answers to your questions. To make that easier, I've put up a question box. You can write down your questions and put them in the box. You don't need to put your name on the question. I'll get answers and give the answers to all of you.

Mr. Johnston indicated that pursuant to Mr. Ratzlaff's instructions he had put the question and answer box up on Friday. Employees were told to put questions in the question box if they wanted to and that management would answer their questions. Mr. Johnston then introduced the three home office managers and Tino Borean to the group of employees present. He told the associates that he had been inundated with questions with regard to the union's application. The additional managers were there to answer questions and to provide information about the union's application and about the vote or anything else. Mr. Ratzlaff also spoke and then the meeting ended. This format with a few additions was followed that evening, at the meeting Sunday and at the two meetings on Monday.

28. After the meeting concluded, the three home office managers, Mr. Borean and Mr. Johnston began to circulate throughout the store. Mr. Ratzlat'f described his approach to employees as follows. He told the Board that sometimes while he was walking around an associate would approach him if they saw him coming. However, more ol'ten he would go to an associate who was working and strike up a conversation. If the associate kept working Mr. Ratzlaff would help the person. When they stopped working to) talk to him, he would introduce himself and indicate where he was from. Mr. Ratzlaff would then ask the associate if he/she had been present at the morning meeting that day. If the answer was yes then Mr. Ratzlaff would tell the person that "we" (the outside managers) were there to answer questions about the union if they had any or about anything else. Mr. Ratzlaff would indicate that if they wanted to talk about the union issue they would have to raise it with him and it was purely voluntary to do so. If the associate indicated that he/she had not attended the morning meeting then Mr. Ratzlaff would make sure that they knew about the union's application. He would ask if they had seen the notice posted in the employee lounge with regard to the application and if the person had not seen it Mr. Ratzlaff would tell them to feel free to go look at it. If the person had any questions after reviewing the notice he/she was told to approach the managers who were visiting the store or Andy Johnston as any of this group would be happy to answer questions. When he was asked whether the store would close if the union was successful Mr. Ratzlaff indicated that it was not appropriate to answer that question. On one occasion, while being confronted by an inside organizer concerning the effect that the employer's refusal to answer any questions concerning whether or not the store would close was having on employees. Mr. Ratzlaff told a group of employees that he had been given legal advice that it was not appropriate to tell employees what the company might or might not do as a result of the vote.

29. The approach utilized by Mr. Sims was similar to that of Mr. Ratzlaff. Mr. Sims generally approached an employee and initiated a conversation. Mr. Sims indicated that his goal was to talk to as many employees as possible and answer their questions on any topic. Mr. Sims recalled being asked whether the store would close if the union got in and the answer he gave was, in his words, "it would be inappropriate to comment on what might or might not happen". Mr. Sims indicated that many of the associate questions focused on compensation and hours of work.

30. The three home office managers, Mr. Ratzlaff, Mr. Sims and Ms. Duff plus Mr. Borean were in the store circulating amongst the employees from May 4, 1996 until the day of the vote, May 9,1996. Mr. Ratzlaff spent all of that time in the store talking to associates. Mr. Sims, Mr. Borean and Ms. Duff left the store on occasion to visit the other Wal-Mart store located in Windsor. However, they spent the vast majority of their time in the store which was the subject of the union's application, circulating amongst the employees. Mr. Sims estimated that he spoke to between 40 and 50 employees in the store each day from May 4th to May 9th. Given that Mr. Ratzlaff and Mr. Johnston did not leave the store during the same time period, we can only assume they at least spoke to approximately the same number of associates. We know that they too approached associates and engaged them in conversation. Mr. Borean and Ms. Duff were not called by the company to give evidence before the Board. However, there was no dispute that they spent the majority of their time on the store tloor talking to associates. It is logical to assume that they utilized the same approach as that of Mr. Sims and Mr. Ratzlaff with the employees that they spoke to.

31. The union issue came up in one way or another at every morning (and presumably every evening) meeting between May 4th and the day of the vote. After each of the morning meetings concluded, the management group present in the store would move throughout the store for the remainder of the day approaching employees to see if they had any questions. On at least two occasions both Mr. Sims and Mr. Ratzlaff were advised by one of the union's inside organizers that the refusal of management to answer any questions concerning whether the store would close if the union was successful, was causing employees to fear for their jobs. Management never changed its approach.

32. On May 5, 1996 between 4 and 5 o'clock Mr. Johnston approached a peak-time associate, Mr. Walter Dinatale. Mr. Johnston asked Mr. Dinatale if he had any questions concerning the union or what was going on in the store. Mr. Dinatale told Mr. Johnston that he did not have any questions. Mr. Johnston then went on to tell Mr. Dinatale that he should not feel pressured into signing anything and that he should feel free to make up his own mind. Mr. Johnston told Mr. Dinatale that a lot of things would change if the union was successful, for example, the stakeholders' benefit would be revoked. Then Mr. Johnston told Mr. Dinatale that if he had any further questions he should speak to a member o)f management.

33. In final submissions counsel for the company acknowledged that both Mr. Campbell and Mr. Dinatale were credible witnesses. Given this concession on the part of counsel and the fact that both Mr. Campbell and Mr. Dinatale's recollection of the conversation they had with Mr. Johnston were clearer and more complete than the recollection of Mr. Johnston, we have accepted their version of the conversation. In his conversation with Mr. Dinatale Mr. Johnston made an explicit threat going to Mr. Dinatale's economic security. In threatening to take away benefits if the union was successful, Mr. Johnston breached section 70 of the Act.

34. At the morning meeting on May 7, 1996, the employees were given the answers to the questions which had been put into the question box. At the end of the meeting Mr. Ratzlaff indicated that all of the employee questions, with answers provided, had been set out in a written document. That written document was available for employees to pick up. The order in which the questions and answers were set out was determined by Mr. Ratzlaff. As it is lengthy we will only set out the first two questions and the answers provided by the company. The question and answer sheet in its entirety is attached to this decision as Appendix A.

Q. "There is an overwhelming concern that if the store unionizes, Wal-Mart will close the store. Is this true?"

A. It would be inappropriate for your Company to comment on what it will or will not do if the store is unionized,

Q. "Some people have said that if the store unionized it would be illegal for Wal-Mart to close the store. Is that true?"

A. This statement is not factually correct. What would or would not be legal for your Company to do following the store becoming unionized depends on the factual circum­stances and the application of the law against those circumstances. It would be inappro­priate for your Company to comment or suggest what those factual circumstances might be.

As is obvious, the questions pertaining to whether the store would close if the union was successful were answered with the indication that the company could not answer the question. Before leaving the question and answer sheet we would point out that in response to two other questions concerning the store's lease the employer gave the same response. In response to a question concerning profit sharing and a question concerning payment for work on Sundays the company responded by indicating that this was a matter to be decided at the bargaining table. While this answer may have been interpreted as an indication that perhaps the company would not immediately close the store if the union was successful, the kind of mixed message generated by these inconsistent responses is not sufficient to counteract the fear generated by the employer's consistent failure to respond to the direct questions with regard to the store closure.

Decision

35. Section 11 of the Act provides that the Board may certify a trade union as the bargaining agent for the employees in a bargaining bargaining unit if satisfied that the following circumstances are present:

(a) an employer or a person acting on behalf of the employer has contravened the Act;

(b) the result of the contravention is such that a representation vote does not or would not likely reflect the true wishes of the employees about being represented by the trade union;

(c) no other remedy including the taking of another representation vote is sufficient to counter the effect of the contravention;

(d) the Board is satisfied that the trade union has membership support adequate for the purposes of collective bargaining in an appropriate bargaining unit.

36. In dealing with a predecessor to section 11, the Board in Ex-Cell-O Wildex, Canada, [1977] OLRB Rep. June 370 articulated its purpose as follows:

"14. Certification without a vote under section 7a was designed as both a deterrent to illegal employer interference in union organizational campaigns, and as a device to provide a meaningful and effective remedy in those cases where the employer's interference operated to destroy the free selection process guaranteed by section 3 of the Act. Prior to the 1975 amendments to the Act, a union seeking to have section 7(4), the predecessor to section 7a, invoked was required to have filed membership evidence on behalf of at least fifty per cent of the employees in the bargaining unit. In recognition of the fact that employer interference often occurs early in an applicant's organizing campaign, and before a majority has been obtained, the fifty per cent membership requirement was removed by the 1975 amendments.

20. In Winson (supra), the Board offered this example of the kind of intimidatory or coercive activity on the part of an employer which would, by its very nature, be likely to conceal the true wishes of an employee on a secret ballot:

'No general rules can be set down as to what circumstances might justify a conclusion that employee desires are not likely to be ascertained in a representation vote. Rather, each case must be decided on its own particular facts. In some instances the actions of an employer may be such that a determination that a vote would not be reflective of employee desires may be very easily arrived at. For example, a warning to employees that the certification of a trade union would result in lay-offs and shorter working hours would, lacking any other considerations, tend to have such an intimidating effect that employees might reasonably be expected to refrain from voting for the union no matter what their true feelings about being represented by it. In such a situation to vote in favour of being represented by the trade union might well appear to employees to be tantamount to voting themselves either out of a job or, at best, a drop in pay.

In Trulite Industries Limited, [1983] OLRB Rep. May 821 at paragraph 19 the Board wrote:

19. Certification without a vote under section 8 was designed as a deterrent to illegal employer interference in union organizing campaigns, and a device to provide a meaningful remedy in those cases where the employer's interference undermines his employees' statutory rights, and, in addi­tion, precludes the Board from undertaking its usual determination of employee wishes through a representation vote or an assessment of the union's membership evidence. In other words, section 8 is a kind of "second best" solution, to be applied where the employer's misconduct not only frustrates the union's organizing drive, but also impairs the Board's ability to ascertain whether the majority of the employees do or do not wish to be represented by the a union.

20. Section 11 is not intended to punish an employer for its conduct but its purpose, simply stated, is to ensure that an employer does not benefit from its wrongdoings (see in this regard Robin Hood Multi Foods, supra, and Dylex Limited, [1977] OLRB Rep. June 357). It is not appropriate for an employer to succeed in defeating a union's attempts to organize the employees by acting contrary to the Act.

21. Clearly the conduct of Wal-Mart in this case is not typically what the Board would see in applications pursuant to section 11 of the Act. The company did not discipline, harass or fire any of the union's in-house organizers. It did not push an employee association on the employees. However, in the highly unique circumstances of this case it did contravene the Act and it is appropriate to certify the union pursuant to section 11 of the Act.

22. The first requirement of section 11(1) is that an employer or someone acting on behalf of the employer must have breached the Act. In this case we are satisfied that in several instances the employer's conduct breached section 70 of the Act. In Viceroy Construction Company Limited, [1977] OLRB Rep. September 562 the Board stated the following with regard to the purpose of section 70 (then section 56 of the Act):

23. Insofar as it relates to freedom of expression that section seeks to balance two competing interests. On the one hand it protects the right of an employer to express his opinion in opposition to a trade union. On the other hand it recognizes the sensitive nature of employment relationships and protects employees from utterances of an employer that would have a coercive impact on their decision whether or not to be represented by a union.

24. The legislative scheme anticipates that having been exposed to the views of both employer and union the employees should decide for themselves. To insure the independence of their decision section 61 of the Act prohibits intimidation or coercion of employees by a trade union and section 56 imposes a similar restraint upon an employer. But while section 61 prohibits "intimidation or coercion" section 56 is extended to include a prohibition of "coercion, intimidation, threats, promises or undue influence". Implicit in the broader reference to threats, promises and undue influence, is the recognition that employees may be especially vulnerable to the influence of their employer.

25. The Act recognizes that an employer is in the more immediate position to affect an individual's employment relationship, if only by virtue of its freedom to advance, preserve, impede or terminate an individual's employment. Therefore, by the terms of the Act, that very freedom is restricted. In order to protect and promote the collective bargaining process the Legislature has provided that no employer is free to affect a person's job security or conditions of employment when the employer's action is prompted by an anti-union motive, (e.g. section 58 of the Act). For the same reason, by virtue of the Act, an employer's freedom of expression regarding possible union representation of his employees is not absolute. While he is of course free to express his view of representation by a trade union he may not use that freedom of expression to make overt or subtle threats or promises motivated by anti-union sentiment which go to the sensitive area of changes in conditions of employment or job security.

26. The protection of the integrity of the individual's employment relationship is central to the scheme of The Labour Relations Act. This Board has consistently found breaches of the Act where statements have been made which threaten an individual's employment, and that has been so whether the threat was made by a union (e.g. Walter Selck of Canada Limited, [1964] OLRB Rep. 138; V/R Wesson, Limited [1968] OLRB Rep. Nov. 811) or by an employer (e.g. Bell & Howell Canada Ltd.. [1968] OLRB Rep. Oct. 695).

27. We have two concerns with Ms. Passador's speech on April 30, 1996. First of all the company, at the end of Ms. Passador's speech did not distance itself from her comments. Neither Mr. Borean nor Mr. Johnston stated that her comments were not reflective of the company's views on unions and the effect that a union would have in the store. Secondly, even though we accept that there were legitimate reasons for ending the meeting at that point, namely that it was time for the store to open to its customers, by not allowing the union supporters to speak, the associates who were present were left only with the views of Ms. Passador. What is crucial in our view, is the effect that Ms. Passador's comments may have had on employees in the store. What message would the average or reasonable associate hear upon listening to Ms. Passador's speech? Clearly Ms. Passador had concerns about the effect the union would have on the store. She felt that the in-house organizers do not realize the consequences involved in unionizing. She then says that the organizers don't need their jobs but she does. A couple of sentences later she points out that Wal-Mart will not put up with with the discontent the union will bring to the store. She concludes her speech with a statement that she will be one of the first associates to cross the picket line because she needs her job. Ms. Passador never said that the store would close if the union was successful in its attempt to organize employees. However, because of what she did say an associate listening to her would have likely concluded that she had concerns for her future job security in the event that the union was successful. We have no doubt that Ms. Passador believed strongly in what she was saying and that this was apparent to those associates listening to her. Our concern is not with the fact that Ms. Passador spoke or with what she said. It is that employees listening to her speak might have concluded that her views concerning the effect of unionization were those of the company. The effect of her comments could easily have been to plant a seed of doubt regarding how Wal-Mart might respond to a union in the minds of those other associates listening to her.

28. It was never suggested that management arranged for Mr. Passador to make the comments she did. We accept that the views expressed were her views. There is nothing wrong with allowing Ms. Passador to speak her mind. However, in light of the fact that the company after inviting questions or comments, did not clarify that the comments were not reflective of the company's views, allowed the spectre of job insecurity to be raised in a situation in which it is reasonable for employees to conclude that it was a legitimate concern. In the circumstances, it would not be unreasonable for some of the associates to conclude that the views of Ms. Passador were reflective of the views of the company and that the company agreed with her assessment of the situation. In allowing this message to be sent at a meeting which management directs and controls, without distancing itself from her remarks or allowing the union supporters the opportunity to balance her remarks, the company has sought to intimidate or unduly influence employees with regard to their decision on union representation contrary to section 70 of the Act. An employer simply cannot allow an employee to make a speech containing the subtle threats to job security such as those contained in Ms. Passador's speech, at a meeting run by manage­ment, fail to distance itself from the comments and then silence the union's supporters in the manner in which it did. While the company did not make any threats, it allowed threats to be made in circumstances in which they could be attributed to the company. Ms. Passador's speech had a chilling effect on the union's organizing drive.

29. The attendance of four outside managers in the store from May 4th to May 9th who spent the vast majority of their time approaching employees while they were working in the store and engaging them repeatedly in conversations regarding the union, was an extremely risky response for the company to have made to the union's organizing drive. While the facts of this case bear little similarity to the facts in K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Jan. 60, in dealing with the effect of having one manager (the Manager of Personnel and Employee Relations) approach staff over a three week period the Board made some comments that are equally applicable to the case before us:

30. The impact of individual employees of being engaged repeatedly in conversation by a manage­rial authority of Mrs. Fox's rank cannot be underestimated, particularly when it comes at or about the time of a series of management meetings opposing a union. Mrs. Fox circulated continuously among the employees for three weeks in November. An employee observing her conduct as she spoke with other employees could reasonably suspect that Mrs. Fox would eventually come to know who the union sympathizers were, as indeed she did. An employee exposed both to the battery of meetings held by Mr. Gilchrist and the sustained rounds of the store by Mrs. Fox would reasonably come to entertain a concern for his own security, a concern that joining the union would leave him open to the kind of surveillance and pressure that was then being openly brought to bear on Clark and O'Connor. Management's deliberate blitzing of the employees can only be interpreted by this Board as calculated to put pressure on the employees, to obtain information from them and to bring undue influence to bear on their ability to freely choose to associate with the union. The tactic of having Mrs. Fox attend the anti-union meetings of Mr. Gilchrist and then circulate among the employees, engaging in one on one conversations day after day over several weeks, goes beyond mere management concern for employee problems. It becomes a subtle and effective tactic of intimidation. While a one or two day visit by Mrs. Fox to convey the employer's feelings on union representation might not offend the provisions of section 56 of the Act, her presence and activities in the store during the fall of 1979 went beyond that purpose and, in the circumstances of this case, constituted intimidation and undue influence of the employees contrary to section 56 of the Act.

31. In this case there was no surveillance or pressure being brought upon the union's inside organizers. Nor was there a series of management meetings opposing the union. However, there were daily morning meetings at which the union issue was discussed. At their conclusion the four outside managers would start circulating and continued to do so for the majority of their time until the store closed for the day. They did this for the five days leading up to the vote and on the day of the vote. In the course of these conversations they learned who the union supporters were and who were not union supporters contrary to the protection afforded by the Act. The presence of the four outside managers certainly sent the message that the union issue was a very important one to the company. The Board heard a great deal about the Wal-Mart culture and the open relationship between management, as representatives of the company, and the employees. Given this "culture" it is understandable that Mr. Ratzlaff, as the official coordinating the company's response, would want to ensure that resources were available to deal with employee questions. But, there is a big difference between having resources available, which employees can seek out and what occurred in this case. Mr. Ratzlaff's strategy was to have four outside managers, senior managers, constantly approaching employees over a six day period actively soliciting questions from the employees on the union issue. This conduct, four managers (and this is not counting Mr. Johnston who is doing the same thing) repeatedly engaging employees in a conversation about the union, goes beyond mere assistance to employees based on a concern that their questions be answered, and becomes an extremely effective tactic of intimidation or undue influence contrary to section 70 of the Act. As the Board has noted before, an employer cannot hide behind "open door" policies when the effect of the open communications is to put undue influence on employees concerning their selection of a trade union to represent them. This repeated and persistent personal contact initiated by the employer and not requested by the employees was clearly designed to identify the union supporters as well as communicate the message which we will next deal with.

32. This conduct of the employer, namely the strategy of having four managers constantly engaging employees in conversations about the union, is not the breach of the Act or the conduct in and of itself which led us to conclude that it is appropriate to certify the union pursuant section 11. The conduct of the employer which gave us the most concern, while part of the approach detailed above, was far more harmful to the free will of the employees. As noted, we have heard a great deal about the Wal-Mart culture and we will not repeat what we have said earlier. We accept that there is a unique culture fostered in this company, one in which employees are encouraged to ask questions and expect to get answers. One of the key concerns of the associates in this store was whether the company would continue to operate the store if the union was successful. Paul Ratzlaff knew that this would be a concern before he even went to the store. In the briefing of the managers Mr. Ratzlaff told them to expect the question and how to answer it. The question was in fact raised with the outside managers by associates. However, despite being held out to the associates as the individuals who would answer their questions, pursuant to Mr. Ratzlaff's instructions they told the associates that they were not in a position to answer that question. On at least one occasion Mr. Ratzlaff told employees that he had been instructed by legal counsel not to answer that question. Despite all of the employee rights to information, the open door policy and the sundown rule, management refused to answer any questions concerning the store closure issue.

33. Given the Wal-Mart culture and the expectations of employees that answers to their ques­tions would be given, what would the effect of this refusal to answer such a crucial question be on the average, reasonable associate'? In assessing the effect of the refusal to answer it is also important to bear in mind that management over a six day period is continually approaching the associates and asking them if they have any questions about the union's organizing drive. The managers present in the store in the days leading up to the vote entered into dozens of daily one-on-one conversations with associates about the union and when asked, refused to answer any questions with regard to the store closure issue. The company attempted to portray the store closure issue as a union issue and pointed out that it was not raised with a great deal of frequency with the managers. In our view it is irrelevant how many times the associates asked one of the managers this question, as it would not take long for it to get around" the store that this question was not being answered. Why ask if you knew it would not be answered?

34. Paul Ratzlaff held himself out to the Board as a labour relations expert. He orchestrated the company's response to the union's organizing drive. Giving him the benefit of the doubt, he may not have initially intended the presence of the outside managers and their refusal to answer any questions with regard to store closure to have had the effect it did on the associates in the store. However, as time went on both Paul Ratzlal'f and the other managers knew what effect their actions were having. The inside organizers told them that by not answering the question with regard to store closure, they were fueling employee fears. The managers, knowing the effect the refusal to answer the questions of employees with regard to) store closure was having, nevertheless continued to refuse to answer any questions on this issue.

35. In our view you cannot have it both ways. If you adopt the approach of constantly soliciting questions in an environment such as was present in this case, you have to answer them. Either you answer the questions asked or you do not circulate amongst employees in the manner in which management did in this case. Mr. Ratzlaff told the associates that managers would answer their questions and then did not answer the one question which was foremost in the minds of some of the employees. By not reassuring people that the store would not close the managers knew what conclusions the associates would come to. Manipulating the circumstances in this fashion allowed the seed to be planted and grow in the minds of the associates that if they supported the union they might lose their jobs. This is a subtle but extremely effective threat to the job security of the associates.

36. It is always difficult to place oneself in the shoes of the employees in the store to) determine what effect the company's campaign would have had on them. However, in the unique circumstances of this case, and we stress that they are unique, we are of the view that the company's failure to answer the questions of associates with regard to the issue ot' store closure would cause the average reasonable employee to conclude that the store would close if the union got in. Given that the inside organizers told management that this was in fact happening, and management did not change its approach, we are satisfied that the company intended employees to draw this conclusion. There is no legal prohibition against answering questions with regard to store closure by saying that the company would not close and would sit down and negotiate with the union if the union was successful. Obviously, it is only illegal for the company to say that the store would close. Therefore, by not alleviating employees' concerns by answering the question, the company was intentionally fueling employee concerns. Accord­ingly, we find that the conduct of the employer in circulating amongst the employees and engaging them in individual and group discussions regarding the union, in the fashion in which it did, and the company's refusal to answer any questions with regard to what the store would do if the union was successful, was a breach of section 70 of the Act. Coupled with the refusal of the individual managers to answer the questions with regard to store closure is the refusal of the company to provide an answer in the question and answer sheet which was distributed to the associates by the company.

37. The second and third factors set out in section 11 provide that a certificate is not to issue pursuant to this section unless the Board is satisfied that no other remedy, including the taking of another representation vote is sufficient to counter the effects of the employer's contravention of the Act. As we have already noted, this is not a typical section 11 case. However, in our view the determinative factor set out in section 11(1)2 is not whether the employer breaches of the Act are flagrant or egregious but whether or not the employer's breaches of the Act result in the Board concluding that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about being represented by a trade union. The employer in this case is sophisticated and its response to the union's organizing drive reflects this. We have no doubt that the intentionally generated implied threat to job security which occurred in this case had the result of rendering the representation vote taken on May 9, 1996 meaningless. This case is a classic example of a situation in which the conduct of the employer changes the question in the minds of the employees at the vote on May 9th from one of union representation to one of "do you want to retain your employment" (see in this regard Straton Knitting Mills Limited, [1979] OLRB Rep. Aug. 801, Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848, Knob Hill Farms Limited, [1987] OLRB Dec. 1531 and Beaver Lumber, [1992] OLRB Rep. May 553).

38. Section 11(1)3 requires us to consider whether any other remedy short of automatic certifica­tion, including the taking of a second representation vote, is sufficient to counter the effect of the employer's contraventions of the Act. We are of the view that a second representation vote in this case would be equally meaningless. We would adopt the comments made by the Board in Lorain Products Canada Limited, [1977] OLRB Rep. Nov. 734 at paragraph 10 that:

the threat to job security and/or economic well-being cannot now be erased by either the employer or the Board. It undoubtedly followed the employees into the voting booth on October 5 and would follow the employees into the voting booth in any subsequent vote.

The Board has repeatedly recognized that threats to an employee's job security will undermine the ability of the employees to) freely express their views with regard to union representation. Therefore a second vote in this case is not appropriate. (See in this regard Robin Hood Multi Foods Inc., [1981] OLRB Rep. July 972, Brinks Canada Limited, [1982] OLRB Rep. Aug. 1140, and Aurora Rest Haven Extended Care and Convalescent Centre, [19861 OLRB Rep. July 1031.

5 I. The final question the Board must answer is whether the union has support adequate for the purposes of collective bargaining. On May 2, 1996 when the union filed its application for certification it filed membership evidence on behalf of approximately forty-four percent of the bargaining unit. Although Wal-Mart raised concerns with regard to the membership evidence filed on behalf of one employee and suggested that as a result the Board should generally question the membership evidence in this case, we do not share the employer's concerns. We are of the view that the membership evidence filed in this case is completely reliable. At the time of its application for certification, the union after a very brief campaign, enjoyed the support of forty-four percent of the bargaining unit. One week later as a result of the employer's contravention of' the Act that support had plummeted to approximately twenty-one percent. However, as noted we are of the view that this drastic drop in support was not reflective of the true wishes of the employees. Accordingly, we are of the view that the trade union has membership support adequate for the purposes of collective bargaining.

52. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act, 1995.

53. Having regard to the agreement of the parties the Board hereby finds the following bar­gaining unit to) be appropriate:

all employees of Wal-Mart Canada Inc. at 1950 Lauzon Road, in the City of Windsor, save and except assistant managers, persons above the rank of assistant manager and the personnel manager and persons employed on a temporary basis for a fixed period of time.

54. Accordingly to summarize, the Board hereby finds that:

(a) the employer has violated section 70 of the Act as outlined in the body of this decision;

(b) the result of the employer's contravention of the Act is such that the true wishes of the employees were not expressed in the vote held on May 9, 1996;

(c) it is not appropriate to direct that a second representation vote be taken;

(d) the union has membership support adequate for collective bargaining;

(e) a certificate shall issue to the union for the bargaining unit set out above.

In addition, the Board hereby directs:

(a) that representatives of the union be allowed to) convene meetings within thirty days of the date of this decision with the bargaining unit employees in the absence of members of management. The meetings will last no)t more than one hour and will be held on company premises during normal working hours without loss of pay for employees attending such meetings. The meetings will be scheduled in such a way that the union has an opportunity to talk to as many of the bargaining unit employees as possible. The meetings will be scheduled in consultation with man­agement so as to ensure that the company's retail operations are not disrupted. This may entail having more small meetings rather than one or two large meetings.

(b) the attached notice Appendix B from the Board is to be posted through­out the store at the locations where notices are normally posted, as soon as possible after receipt of this decision.

55. The Board will remain seized with regard to any matter arising out of this decision.

DECISION OF BOARD MEMBER R. W. PIRRIE: February 10. 1997

1. With respect, I interpret the evidence in this case differently from the majority and as a consequence I dissent from their decision to certify the union.

2. To start with, I have a great deal of difficulty with the material at paragraphs IS through 18 above concerning Mr. Borean's appearance at the store April 27th. At paragraph 18, the majority hold that "... the conduct of Borean is not a violation of the Act". Yet at paragraph 17 the majority draw an adverse inference from the company's failure to call Mr. Borean as a witness. There was conflicting testimony concerning what he said at the meeting. Further, while Ms. McArthur, one of the in-store union organizers, testified she saw Mr. Borean circulate through the store, the union did not produce a single witness to testify as to what he said to employees while circulating. That consideration does not, however, draw an adverse inference.

3. I also) found instructive the evidence that Ms. McArthur spoke out at the April 27 morning meeting following Borean's comments. It is instructive in two ways. First for what she told her fellow associates (see paragraph 16) and secondly for the fact that she was not prevented or hindered in any way from having her say. The relevance of this latter will be touched on in my later remarks.

4. In general I attach little or no significance to Mr. Borean's presence, or what he did or said in terms o)f the outcome of this case.

5. My next difficulty is in relation to) the majority's views concerning Ms. Passador's speech, and what transpired at the April 30th morning meeting. One must read paragraphs 19 and 20 setting of the f'acts and then paragraphs 40 and 41 which draws their conclusions from those facts.

6. The first issue for me is the description of how that morning meeting ended. Alter Ms. Passador spoke against the union. Ms. McArthur and/or Mr. Cartier indicated they wished to) respond on behalf of the union. It is acknowledged it is at least 9 a.m. and there are customers waiting at the entrance. But it gets expressed in terms that Mr. Borean, "... did not allow either employee to speak and ended the meeting." Later at paragraph 40 the majority holds that ".. even thought we accept that there were legitimate reasons for ending the meeting at that point, namely that it was time for the store to open to its customers, by not allowing the union supporters to speak, the associates who) were present were left only with the views of Ms. Passador." I am sorry but the majority can't have it both ways. There was no more time for anyone to) speak the morning of April 30th. As noted in paragraph 3 above, Ms. McArthur was not prevented from speaking at the April 27th meeting Similarly, Mr. Cartier's request to speak at the April 29th meeting - which Mr. Borean also attended - was acknowledged by management and he spoke on behalf of the union. I would have liked the majority to) draw their conclusions from those facts, and not further impugn Mr. Borean, as I believe this award does.

7. The second difficulty I have is with the line of reasoning which follows in paragraph 40. The gist of my problem is contained in the following statement. "Ms. Passador never said that the store would close if the union was successful in its attempt to organize the employees. However because of what she did say, an associate listening to her would have likely concluded that she had concerns for her future job security in the event that the union was successful. We have no doubt that Ms. Passador believes strongly in what she was saying and that this was apparent to those associates listening to her. Our concern is not with the fact that Ms. Passador spoke or with what she said. It is that employees listening to her speak would have likely concluded that her views concerning the effect of unionization were those of the company."

8. It would appear that it is okay for Ms. Passador to speak, the problem is that others might listen and draw inferences. To suggest that her fellow employees where not able to internalize her comments and weigh them in conjunction with the other things being said or not said by the company and the union, and in the end make and informed, independent, rational decision in the voting booth, is to give too little credit to the intelligence of these employees.

9. The third problem for me is the notion the majority have that the company erred by not distancing itself from Ms. Passador's remarks, or that it did not allow the union's supporters the opportunity to balance her remarks. With respect to the latter, I reiterate that Ms. MeArthur had no difficulty speaking up at the April 27 meeting, and while management did not offer time to the union organizers at subsequent meetings, neither did the union request time to speak.

10. With respect to distancing itself from Ms. Passador's remarks, I say nonsense. Every employee knows that every employer, at least in the retail sector, would prefer not to have a union represent its employees. But more specifically, when I read what she said at paragraph 19 of the majority award, I would ask what it is that the majority would have Wal-Mart do or say. Should they have said, for example, that at paragraph 1, they were wrong to let Ms. Passador keep her Woolco seniority. That a paragraph 2, Ms. Passador is wrong to suggest the young people presently in school will not move on to better jobs in their fields on graduation. That at paragraph 3, Ms. Passador is wrong to believe that what the associates receive from Wal-Mart is comparable with what other stores pay, but is in fact less, or that a union would result not in discontentment but in peace and harmony in the store. That at paragraph 4, Ms. Passador shouldn't be for what is best for her, but should instead be for the union. That a paragraph 5, Ms. Passador is wrong about the certification process, that she is wrong and that the union is the associates friend, that she is wrong and doesn't need her job and shouldn't cross the picket-line. What are the views that Ms. Passador expressed that the majority would have Wal-Mart take issue with.

11. Based on my reading of the evidence, Ms. Passador conceived of the idea, wrote out what she wished to say, and delivered her thoughts entirely on her own. I would add that the evidence also indicates that her comments were followed by considerable applause on the part of her fellow employees present. This was in fact part of the give and take, and the expression which characterizes a typical union organizing campaign.

12. Much of the rest of the majority's decision centers on the Wal-Mart culture of openness with its employees, the effect on the employees of the home office management team being in the store in the period leading up to the vote and the failure of the management group to respond to the "store closure" question.

13. Along with the majority, I am troubled by the significant management presence in the store, and the effect this may have had on the situation. I am, however, similarly troubled by the significant union presence in the form of picket lines outside the store during the same period, and the effect this may have had on the employees.

14. Indeed, as with the majority, I would have preferred that management had directly answered the question, "Will Wal-Mart close the store if the union wins the vote'?". Both sides in this case maintain the other was feeding off the company's not responding to the expressed concern about this issue and indeed the majority found the union's position to be persuasive. However, I cannot ignore the fact that management did make it clear to the employees that there would be a life after the vote, and that many of the issues of concern to the employees would be resolved through negotiations should the union win the vote.

15. For example, at paragraph 34 of the award the majority notes that a couple of questions were answered with the observation - the matter "... would be decided at the bargaining table." For clarity and balance, I quote the questions and answers.

Q. "With the union, will beget time and one half for Sundays?"

A. "It would be inappropriate for your company to make any comment regarding what would happen and/or what you will or will not get if the union gets in. If the union gets in, compensation programs would be subject to what your company and the union agree to at the bargaining table."

Q. "Can you explain the 'first contract arbitration'?"

A. "If the union gets in, and the union does not agree with the demands made by the union, and the Minister of Labour advises that the parties cannot reach an agreement, either your company or the union may apply for binding arbitration. The terms and conditions of the first collective agreement shall then be settled either by a Board of Arbitration or the Ontario Labour Relations Board whichever shall be selected."

16. For the majority, however, those responses are not sufficient. Again, putting themselves in the heads of the employees, the majority note "...this (these) answers may have been interpreted as an indication that perhaps the company would not immediately close the store if the union was successful ...". Such nonsense.

17. Similarly at paragraph 21 of the award, the impugned conversation between Messers. Johnston and Campbell is instructive. As quoted, Mr. Campbell indicates Mr. Johnston "went on to say something along the lines of a union would not necessarily benefit the store because all of the benefits and everything would have to be bargained for and he suggested that neither side would have to agree to any specific details."

18. There were other instances where company spokespersons, including Mr. Ratzlaff, made clear statements to the employees that negotiations would take place if the union won the vote. Further, the union's inside organizers knew it would be illegal for Wal-Mart to close the store if they won the vote, and there were numerous occasions when they both publicly and privately made this point with their fellow employees.

19. There was, in my view, some balance around the "store closure" issue, and I am not persuaded it played this significant role my fellow panel members attribute to it. I do not see the behavior of the Wal-Mart management as violating section 70 of the Act.

20. The evidence of the in-store union organizers was that they contacted and attempted to sign into membership all but about 20 of the associates in the store. As noted in paragraph 13 of the majority award, they succeeded in having 91 employees sign cards. Noting that 205 employees voted on May 9th, approximately half of the employees said "no" to the union's overture to represent them in their employment relationship during the organizing campaign. And, of course, this was before any of the management activity which the majority impugn. Quite likely, not all of the people who said "no" to signing union cards had made up their mind to vote "no" to the union. That said, it is equally likely not all of the ninety-one who did sign union cards had fully committed themselves to the union.

21. In the final analysis, 43 employees voted in favour of the union. Allowing for the committed in-store organizing group, this leaves a sizable number of employees who did not feel sufficiently threatened by the words and actions of the Wal-Mart management. At the same time, 151 employees weighed the issue, as did the 43, and voted "no" to the union's overture to represent them in their relationship with Wal-Mart. I am not prepared to) disenfranchise such a sizable majority of employees based on the evidence we heard in this case.

22. I would dismiss the union's section 96 complaint, allow the vote results to) govern, and dismiss the union's application for certification.

APPENDIX A

WAL-MART CANADA INC.

“WE ARE FAMILY”

May 7, 1996

DEAR ASSOCIATE:

We want to thank each of you who have taken the opportunity to submit written questions in the store’s Question Box for our response. The following is a reproduction of each question we reserved as well as your Company’s response, which we hope will be of assistance:

Q: “There is an overwhelming concern that if the store unionizes, Wal-Mart will close the store, Is this true?

A: It would be inappropriate for your Company to comment on what it will or will not do if the store is unionized.

Q: “Some people have said that if the store unionized it would be illegal for Wal-Mart to close the store. Is that true?

A: This statement is not factually correct. What would or would not be legal for your Company to do following the store becoming unionized depends on the factual circumstances and the application of the law against those circumstances. It would be inappropriate for your Company to comment or suggest what those factual circumstances might be.

Q: “The union are telling people that have only 1 or 2 shifts a week that they can guarantee them more hours?”

A: Don’t be misled by false and misleading statements made by the union and/or rumours. Nobody can guarantee more hours since the number of hours available to associates is directly related to the store’s financial performance.

Q: “If you sign the card and don’t go to the meeting do they count that signature as a yes vote.”

A: No. What does matter is if you vote and how you vote when the vote is held. The store will only be unionized if 50% plus one person of the total number of people who actually vote in person, choose to vote for the union.

Q: “Can you change your mind if you signed the card. How do you change it.”

A: “You sure can. The only thing that matters as to whether the store is unionized is how you vote when the vote is held. If you signed a card and now you want to change your mind, vote “no”.”

Q: Stakeholders and Profit sharing is it still in place if we’re union.”

A: It would be inappropriate for your Company to make any comment regarding what would happen and/or what you will or will not get if the union gets in. If the union gets in, compensation programs would be subject to what your Company and the union agree to at the bargaining table.

Q: “If the place is leased – will Wal-Mart buy the space if we’re a union. When is our lease up for renewal? Are we not on a 3 year probation as to whether we stay Wal-Mart.”

A: As to the first question, it would be inappropriate for your Company to comment as to what it would or would not do if the store is unionized. As to the second question, the current lease term ends on January 31, 2003. The Company must decide whether it wishes to exercise its option to extend the lease term beyond that date by January 31, 2001. As to the third question, no.

Q: “How much union dues come out of our pay.”

A: The amount of union dues, special assessment, and initiation fees are determined by the union exclusively. Union dues vary, but within the retail industry $20 – $24 per employee monthly is typical, and applies equally to all employees, including part time and full time.

Q: “Why is an American union being used. Why steelworkers for a retail store?”

A: We don’t know.

Q: “Why are we not able to have a choice of what union we pick. Shouldn’t we have a choice?”

A: The law does not restrict your choice.

Q: “Is Wal-Mart looking into if our wages can improve?”

A: We conduct salary surveys on an annual basis to ensure that our wages are competitive. Our surveys are done both nationally and locally and include companies such as Zellers, K-Mart, Canadian Tire, Price Costco and Home Depot.

If we learn that our wages are not competitive we increase them so that they are competitive. In addition to competitive wages, associates at Wal-Mart can share in our profitability through our Stakeholders and Deferred Profit Sharing Programs.

Q: “There are Wal-Mart stores with security at the open “in” doors and the “out” doors. Will that happen here?”

A: We do not normally hire security guards for the front end of our stores. We do however make exceptions on some stores based on need.

Q: “Will the front doors ever be changed.”

A: One of the reasons we did not put automatic doors into all of our stores is that we wanted to keep expenses down, since we pass cost savings on to our customers. Some of our new stores do have automatic doors. On a case to case basis, we will be happy to review the merit of automatic front doors.

Q: “What are the complaints that made associates want a union. What did they do to try to rectify their problem first with Wal-Mart before going to union.”

A: We believe a majority of associates do not want a union, but some of the key issues appear to revolve around scheduling, wages and benefits, consistency of policy and communications. We do not know what associates who want a union did to raise these issues, however we at Wal-Mart know that using the Open Door has successfully resolved these kinds of concerns.

Q: “When union fights for a contract, can it not take years to get settled?”

A: It could. The length of time it takes to negotiate a contract depends upon the nature of the demands made by the union, the preparedness of your Company to meet those demands and the time schedules agreed to by the parties.

Q: “With the union, will we get time and one-half for Sundays.”

A: It would be inappropriate for your Company to make any comment regarding what would happen and/or what you will or will not get if the union gets in. If the union gets in, compensation programs would be subject to what your Company and the union agree to at the bargaining table.

Q: “The people handing out cards, are they preped for giving out correct answers to questions asked before people sign and are they told what they can and can not say to get someone to sign.”

A: We don’t know what you have or have not been told by the union. You should decide for yourself whether what you have been told is true or not, whether it’s been said by the union or your Company.

Q: “If Wal-Mart is not an anti-union company then in the Wal-Mart take over process why didn’t they purchase the unionized Woolcos.”

A: Wal-Mart is not anti-union. Wal-Mart is pro-associate and our associates world wide have unfailingly shown their desire to not have union representation. Contrary to what the union would like you to believe, when Wal-Mart acquired certain of the former Woolco stores, it made its determination strictly on the basis of which stores were most productive. Wal-Mart chose not to acquire 22 former Woolco stores. Some where union and some were not.

Q: “Can you explain the “first contract arbitration”.”

A: If the union gets in, and your Company does not agree with the demands made by the union, and the Minister of Labour advises that the parties can not reach an agreement, either your Company or the union may apply for binding arbitration. The terms and provisions of the first collective agreement shall then be settled either by a board of arbitration or the Ontario Labour Relations Board, whichever shall be selected.

Q: “Were you aware that asking us if we were approached to sign union cards and who approached us, is illegal.”

A: What you are asking is dependant upon the circumstances. What is illegal if your Company is any way attempting to interfere with your legal rights under the Labour Relations Act, and we would never show you the disrespect of doing that.

Q: “Can a union hurt this store? eg: when it comes to renewing the store lease, will Wal-Mart not renew and close its doors therefore we are out of a job??? Please help clear this confusion for me and others. Thank you”

A: Whether or not a union would hurt this store is a matter for you to decide in your own mind. It would be inappropriate for your Company to comment on what it will or will not do if the store is unionized.

Q: “Can a union really help this store? How? Or who not?”

A: We don’t believe that it would. Your Company prides itself on being able to listen and respond to its associates directly without the need for third party intervention. Our Open Door policy allows each associate the freedom to express his or her opinion or challenge decisions he or she feels are unfair or not in your Company’s best interest, without fear of retaliation. Wal-Mart is pro-associate. We consider associates to be partners in our Company’s future, and believe that relationship flourishes without the need for third party intervention.

Q: “Does seniority in the store matter in regards to promotions and raises in salary as it stands right now. (non-unionized)”

A: Our salary rates are established based on a start rate, a three month rate, a one year rate, a two year rate, etc. Increases are based on performance. Typically there is a relationship between length of service and performance. Promotions are also based on performance and in many situations longevity allows people to perform the job at a “higher” level.

Q: “Is it not true that the only way that seniority and benefits will decrease is if the company proposes it and it is accepted by the majority of the associates through a voting process.”

A: No.

Q: “Concerning the union. I would like to know who will answer all our questions, pros and cons, will it be management, head office or a third party, i.e. the Labour Board. Thank you for your time.”

A: We can’t comment on what the union or the Labour Board will or will not do. However, your Company has tried and will continue to try its best to answer all of your questions as quickly and accurately as possible through your ??? management team.

Appendix “B”

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

THE BOARD, AFTER A LENGTHY HEARING, HAS DETERMINED

THAT DUE TO WAL-MART’S CONTRAVENTION OF LABOUR

RELATIONS ACT, 1995, IT IS APPROPRIATE TO CERTIFY

THE UNION.

THE COMPANY AND THE UNION HAVE THE BOARD’S REASONS

FOR OUR DECISION.

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

THIS NOTICE MUST REMAIN POSTED FOR 30 CONSECUTIVE DAYS.

DATED this 10^th day of FEBRUARY, 1997.