Teamsters, Local Union No. 647 v. Silverwood Dairies

[1980] OLRB Rep. October 1526

0912-80-R Teamsters, Local Union No. 647, Milk & Bread Drivers, Dairy Employees, Caterers and Allied Employees, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Silverwood Dairies, Division of Silverwood Industries Ltd., Respondent, v. Borden Dairy, Division of The Borden Company, Limited, Intervener #1, v. Retail, Wholesale and Department Store Union Local 440, A.F.L., C.I.O., C.L.C., Intervener #2.

BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.

APPEARANCES: Ken Petryshen and Gerry Kennedy for the applicant; B. F. Mac Donald and T. F. Kotschorek for the respondent; no one appearing for intervener #1; Albert Player and Albert Scott for intervener #2.

DECISION OF THE BOARD; October 14, 1980

1. This is an application under section 55 of The Labour Relations Act. The applicant trade union ("Local 647") contends that following a sale of a business within the meaning of section 55 by intervener #1 ("Borden") to the respondent ("Silverwood"), the purchaser intermingled some of the employees of its pre-existing milk and ice cream distribution business with the employees of the purchased business.

2. The facts of this case are not in dispute. Silverwood operated a wholesale milk and ice cream distribution business in Windsor for many years. Local 647 was the bargaining agent for a bargaining unit of Silverwood employees described as follows in Article 1 of the Collective Agreement in force between the trade union and Silverwood from May 1, 1978 to April 30, 1980:

"…all employees of the Company employed at its Windsor Branch Plant, save and except Supervisors, Foremen, persons above the rank of Supervisor and Foreman, Engineers, Office and Retail Store Staff, and students employed for less than 90 days."

3. On or about February 11, 1980, the seventeen employees in that bargaining unit were advised by Silverwood that the Windsor Branch Plant would be closed indefinitely effective February 16, 1980. This was subsequently confirmed by letter dated February 18, 1980. Accordingly, the employment of each of the seventeen employees in the bargaining unit was terminated effective February 16, 1980, but the eight employees with the most seniority were offered positions with Silverwood at its Chatham Plant, where Local 647 held bargaining rights under a separate collective agreement, in force from December 1, 1978 to November 30, 1980, for the following bargaining unit:

"...all employees of the Company employed at or working out of its plant in Chatham, save and except Plant Superintendent, Chief Engineer, Sales Managers, Route Foremen, Foremen, persons above the rank of route foreman and foremen [sic], office staff, persons regularly employed for not more than 24 hours per week, and students employed for less than 90 days."

As of February 18, 1980, those eight employees began to service the Silverwood accounts from Chatham, by obtaining their milk and ice cream in Chatham instead of Windsor. The ice cream delivery routes remained unchanged, but the milk routes were modified.

4. By letter dated February 21, 1980, Local 647 gave Silverwood notice to bargain in respect of the Silverwood Windsor Branch Plant Collective Agreement. However, Silverwood and Local 647 subsequently agreed not to enter into negotiations due to the closure of that plant.

5. On March 1, 1980, Silverwood purchased Borden's Windsor milk and ice cream wholesale distribution business. It was common ground among the parties that this transaction was a sale of a business within the meaning of section 55 of the Act. It was also common ground that, by virtue of section 55(1), as of March 1, 1980, Silverwood became bound by the collective agreement between Borden and intervener #2 ("Local 440"). Article 2 of that Collective Agreement, effective from June 1, 1979 to May 31, 1982, recognizes Local 440 as the bargaining agent for the following bargaining unit: "all of the Company's employees of the Windsor Plant, save and except office staff, route supervisors, retails store clerks, seasonal or part-time employees, foremen and those above the rank of foreman."

6. Between February 18, 1980 and July 20, 1980, the number of former Windsor employees working for Silverwood in Chatham dropped from eight to five. On July 21, 1980 Silverwood integrated that part of its Chatham-based wholesale milk and ice cream distribution business which serviced Windsor area accounts, with the Windsor wholesale milk and ice cream distribution business which it had purchased from Borden. In so doing, it transferred those five employees back to Windsor and integrated them and their customers into the Windsor wholesale milk and ice cream distribution business which it had purchased from Borden. As a result, the work force of that business rose from sixteen to twenty-one employees.

7. Local 647 submitted that an intermingling of employees had occurred within the meaning of section 55(6) of the Act, which provides:

"55(6) Notwithstanding subsections 2 and 3, where a business was sold to a person who carries on one or more other businesses and a trade union or council of trade unions is the bargaining agent of the employees in any of the businesses and such person intermingles the employees of one of the businesses with those of another of the businesses, the Board may, upon the application of any person, trade union or council of trade unions concerned,

(a) declare that the person to whom the business was sold is no longer bound by the collective agreement referred to in subsection 2;

(b) determine whether the employees concerned constitute one or more appropriate bargaining units;

(c) declare which trade union, trade unions or council of trade unions, if any, shall be the bargaining agent or agents for the employees in such unit or units; and

(d) amend, to such extent as the Board considers necessary, any certificate issued to any trade union or council of trade unions or any bargaining unit defined in any collective agreement."

Local 647 further contended that the intermingling had resulted in a conflict between its bargaining rights and the bargaining rights of Local 440. Local 647 requested the Board to resolve that conflict by directing that a representation vote be taken of the Silverwood employees, including part-time employees, in the bargaining unit specified in the collective agreement referred to in paragraph 2 hereof, between Local 647 and Silverwood.

8. The respondent agreed that an intermingling had occurred and that a representation vote should be held. However, the respondent submitted that part-time employees should be excluded from the voting constituency since, as noted above, part-time employees are excluded from the Local 440 Collective Agreement referred to in paragraph 5 of this decision.

9. Local 440 contended that no intermingling had occurred. In support of that position, it was argued that the closure of the Silverwood Windsor branch plant on February 16, 1980, terminated the relationship between Silverwood and Local 647 in the Windsor area. The agreement between Local 647 and Silverwood not to enter into negotiations for the renewal of their Collective Agreement was cited as proof that the relationship had been terminated. Local 440 also submitted that the re-employment of five employees at another Windsor plant owned by the respondent five months after the closure of its original plant does not constitute intermingling within the meaning of section 55. Therefore, Local 440 requested the Board to declare under section 55(6)(c) that Local 440 is the bargaining agent of the employees of the respondent at its Windsor plant. In the alternative, Local 440 submitted that if the Board found that an intermingling had occurred and directed that a representation vote be taken, the voting constituency should be the one advocated by the respondent.

10. The Board is of the view that the bargaining rights of Local 647 were not terminated by the closure f the pre-existing Silverwood Windsor branch plant or by the agreement between Local 647 and Silverwood not to enter into negotiations. Once a trade union has given notice of its desire to bargain pursuant to section 45 of the Act, its bargaining rights remain in existence until they are terminated by the Board under the termination of bargaining rights provisions of the Act (such as section 51(2)), or lost under the principle of abandonment. The continued existence of bargaining rights in such circumstances has been implicitly recognized by the Board in a line of cases in which it had been held that an application for termination of bargaining rights under section 51 (on the basis of failure to bargain) will generally be dismissed where there are no employees in the bargaining unit because such application presumes the presence in the unit of employees who may signify whether or not they wish the trade union concerned to continue to represent them: see Pattern Makers Association of Hamilton and Vicinity, [1967] OLRB Rep. Oct. 652; Scarborough Public Library Board, [1968] OLRB Rep. May 196; and Sentry Department Stores Limited, [1969] OLRB Rep. Jan. 1039. In dismissing the application in the Pattern Makers case, supra, the Board specifically noted that the employer had closed its operation and had no intention of reopening it, and further noted that the respondent trade union had advised the Board that it did not intend to seek to bargain with the applicant employer until such time as the applicant employed persons from whom the respondent was the bargaining agent.

11. There was no suggestion that Local 647's bargaining rights have been terminated by the Board. Thus, the issue is whether Local 647 abandoned its bargaining rights. Although some doubt has been expressed from time to time concerning the power of the Board under The Labour Relations Act to find that bargaining rights have been abandoned (see, for example, Dravo of Canada Limited, [1977] OLRB Rep. Sept. 568, paragraph 13), the Board has confirmed and applied the abandonment principle in several recent cases; see, for example, J. S. Mechanical, [1979] OLRB Rep. Feb. 110, in which the Board stated:

"4. Over the last 20 years the principle of abandonment has been deeply entrenched in the Board's jurisprudence. Once a union has obtained bargaining rights either through certification or voluntary recognition it is expected that it will actively promote those rights. If a union declines to pursue bargaining rights it may lose them through disuse. Whether a union has abandoned its bargaining rights is a matter which must be assessed on the facts of each individual case, but once the Board is satisfied that a union has failed to preserve its rights, the union may no longer rely on them to support the appointment of a Conciliation Officer under section 15 of the Act (see Cooksville Sheet Metal, [1974] OLRB Rep. June 365; John Entwistle Construction Limited, [1972] OLRB Rep. Oct. 919; Elgin Construction Co. Limited, [1969] OLRB Rep. April 134; Guelph Cartage Company, 55 CLLC ¶18,018). As well, if a union has abandoned its bargaining rights it may be precluded from relying on them either to bar another agreement that renews itself automatically (see Catalytic Enterprises Limited, [1974] OLRB Rep. April 264; O & W Electronics Limited, [1970] OLRB Rep. Jan 1213; Architectural Acoustics & Drywall, [1970] OLRB Rep. Feb. 1408; N. W. Clayton Sheetmetal and Heating Co. Ltd., [1967] OLRB Rep. April 69), or to require an employer to bargain by giving notice to bargain under such an agreement (see Rainee Manufacturing Products Limited, [1967] OLRB Rep. Nov. 796). A union's abandonment might also obviate the necessity for the Board to determine the merits of a termination application (see Graphic Centre (Ontario) Inc., [1977] OLRB Rep. June 379; Northern Engineers & Supply Co. Limited, [1968] OLRB Rep. Oct. 731; Barrie Tanning Limited, [1966] OLRB Rep. May 128)."

See also Entwistle Construction Limited, [1979] OLRB Rep. March 211; Hugh Murray Limited, [1979] OLRB Rep. July 664; and John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096.)

12. Abandonment of bargaining rights can occur by neglect or by deliberate act of relinquishment. Where a trade union allows a collective agreement to expire and sleeps on its bargaining rights for a sufficient length of time, the Board may find that those rights have been abandoned through neglect. (See, for example, Dominion Milton Limited, [1963] OLRB Nov. 13, in which abandonment was found to have occurred where a trade union had made no attempt to negotiate a collective agreement for five years and failed to intervene in a certification application filed by another trade union. See also N. W Clayton Sheet Metal and Heating Co. Ltd., [1967] OLRB Rep. April69, in which the failure by a trade union to exercise its bargaining rights during a one year period following the expiry of its collective agreement, in combination with its failure to administer that agreement during the preceding three years of its operation, was found to constitute abandonment.) However, such cases generally involve a much longer period of time than the five months which passed in the present case between the date on which Silverwood and Local 647 agreed not to enter into negotiations and the date on which the present application was filed by Local 647. In Ouellette & Rochefort Ltd., [1971] OLRB Rep. April 218, in response to an argument that the Board should find that a trade union had abandoned its bargaining rights because approximately one and one-half years had elapsed since the trade union had sought to bargain with the employer, the Board "had particular regard to the fact that the time period involved... [was] marginal" and was "therefore not prepared to find that the respondent [had] abandoned its bargaining rights…" Moreover, none of the abandonment cases appear to have involved a situation such as the present one in which the closure of a plant by the employer made negotiating for a new collective agreement for the plant a fruitless exercise with no practical value.

13. Bargaining rights can also be explicitly abandoned by a deliberate act of relinquishment. Although the decision by Local 647 not to enter into negotiations due to the closure of the Windsor branch plant is consistent with relinquishment of its bargaining rights, it is also consistent with merely holding such rights in abeyance until such time as an opportunity for their further utilization might arise through the reopening or relocation (at another Windsor site) of the Windsor branch plant. Accordingly, the Board does not view this equivocal course of conduct as an explicit abandonment by Local 647 of the bargaining rights in question.

14. Accordingly, having regard to all the circumstances of this case, including the fact that Local 647 asserted its bargaining rights by filing this application on July 30, 1980, less than ten days after the employees in question were transferred to Windsor, the Board finds that Local 647 did not abandon its bargaining rights for the Silverwood Windsor branch plant.

15. Where the sale of a business is associated with the geographic transfer of employees, the Board has indicated that a trade union whose bargaining rights are geographically restricted will riot find itself in a better position under section 55 that it would have been in if the employer had simply relocated his business in another geographic area. In Chateau Gardens (Queens) Inc., [1979] OLRB Rep. Apr. 289, which involved the purchase of two nursing homes located in Strathroy and the transfer of employees by the respective purchasers to two London nursing homes owned by the purchasers respectively, the Board stated at paragraph 9:

"...It is clear that if the two Strathroy employers had not sold their respective businesses but had moved them from Strathroy to London, that is, from the geographic area covered by the certification or collective agreements to a different geographic area, the bargaining rights, in the absence of contractual language to the contrary, would not follow. The situation where a sale involves a movement out of the geographic area and bargaining unit defined in the collective agreement into another geographic area by reason of a sale was referred to by the Board in Mountain View Diary Ltd, [1967] OLRB Rep. Feb. 911. In that case, although the Board pointed out that the case was not disposed of on that ground, the Board did suggest that the position of a bargaining agent under a sale should not be better than it would be where an employer relocated his business in a new geographic area. "

The unions which respectively held bargaining rights for the employees at the two nursing homes in Strathroy submitted that intermingling had occurred and that the Board should exercise its discretion to order a two-way vote among the employees. In support of that position, it was argued that since there were no geographical limitations set out in section 55, the Board ought not to introduce them. However, after considering those submissions, the Board was "of the opinion that the result suggested in the Mountain View Dairy case, supra ought to be applied". Accordingly, the Board, in the exercise of its discretion under section 55, declared that the trade unions which respectively held bargaining rights at the two Strathroy nursing homes were not the bargaining agents for any of the employees at the nursing homes in London.

16. In Mountain View Dairy, supra, Oakville Dairy, which had a collective agreement with a local of the Teamsters for the Oakville area (including employees at Oakville and Waterdown), purchased Mountain View Dairy, which had a collective agreement with a local of the Retail, Wholesale and Department Store Union for employees at Dundas. Oakville Dairy then moved the business which it had purchased from Dundas to Waterdown. In an application under section 55 by the later local, the Board stated at paragraph 4:

"it must be noted, although no argument was made on this point, that the bargaining rights held by Retail Wholesale were for employees of Mountain View at Dundas (a fact which was drawn to the attention of the parties at the hearing), whereas the operations, with respect to which it claims to represent employees, have been moved to Waterdown. Had there been no sale, but had Mountain View simply moved the base of its own operations from Dundas to Waterdown, it would seem that the bargaining rights of Retail Wholesale would not continue, except by the agreement of the parties. Retail Wholesale could not be in a better position in this case, where Oakville Dairy, having purchased the business of Mountain View, moved its operations to Waterdown…"

17. Thus, the Board's jurisprudence indicates that if bargaining rights are limited to one geographic location, the transfer of employees to another location as a result of a sale will not lead to a transfer of bargaining rights to that location, nor will the transfer of employees from the former location into another trade union's bargaining unit at another location be considered an intermingling; rather it will be treated as an accretion to the other trade union s bargaining unit, to which section 55(6) is inapplicable. However, if the scope clause in the predecessor's Collective Agreement would have been broad enough to cover the employees at the new location if the predecessor itself had moved its business there, section 55(6) will apply to an intermingling of employees at the new location following a movement of the business to that new location by the successor employer. See, for example, Canadian Trailmobile Limited, [1969] OLRB Rep. Jan. 1077, in which the successor company ("Trailmobile"), which had a collective agreement with the U.A.W. for its pre-existing business in Etobicoke, purchased a business in Rexdale from Brantford Trailer and Body Limited ("Brantford") which had a collective agreement with another trade union (the "Molders"). Approximately six weeks later, the purchaser decided to consolidate its activities by closing the Etobicoke plant and transferring all equipment, stock and inventories from that plant to the plant which it had purchased in Rexdale. Since the U.A.W. Collective Agreement contained a "transfer of operations" provision by which Trailmobile agreed that if it should transfer its operations to another location, the Collective Agreement would continue in full force and effect and the U.A.W. would be the bargaining agent at such new location, the Board found the situation to be distinguishable from the United Dairy case:

"7. Had there been no transaction between Brantford and Trailmobile and had Trailmobile simply moved its service branch from Etobicoke to Rexdale (or to any other location in Ontario) it would have an obligation to UAW to carry out the terms of the 'Transfer of Operations' agreement. This is distinguished from the facts in the United Dairy Case, O.L.R.B. Monthly Report, February 1967 page 911 where the applicant did not have any bargaining rights with respect to the employees of Mountainview Dairy at Waterdown and in that situation the majority of the Board said at page 912:

'It should seem that the bargaining rights of Retail, Wholesale would not continue except by agreement of the parties. Retail, Wholesale could not be in a better position in this case, where Oakville Dairy, having purchased the business of Mountainview moved its operations to Waterdown'.

In the present case there is an agreement of the parties to continue their relationship where such operations are transferred.

9. Having found that UAW has an interest in, or colour of right to represent Trailmobile employees at Rexdale, in order to come within the Act, there must also be found intermingling of employees. Employees of Brantford at Rexdale were given notice of termination on August 1st. Subsequently, most of these former employees of Brandford became employees of Trailmobile for whom the Molders asserted its bargaining rights under section [55(2)] of the Act. Trailmobile employees at Etobicoke were given notice of their termination of employment effective September 27th, 1968 and following September 30th some of these persons were hired at Rexdale but in fact, again by Trailmobile, the same employer then was involved in both locations with a number of its employees at Etobicoke and the remainder being former employees of Brantford who sometime after August 1st became employees of Trailmobile. The manner in which this transfer of operations was effected by Trailmobile does not preclude the fact that in substance its employees in one business were intermingled with those of another business. We therefore find that there was an intermingling of employees within the meaning of section [55(6)] of the Act."

10. Accordingly, the Board's jurisprudence demonstrates that the Board has consistently interpreted section 55 is such manner as to preserve but not extend existing bargaining rights. Although most of the reported cases involve movement by the successor employer of the purchased business, Canadian Trailmobile, supra, demonstrates that similar principles are applicable to movement by the successor employer of its original business following the purchase of another business. A trade union with bargaining rights limited by geographic location for the original business of the successor employer ought not to be in any better position if the business is moved away from that geographic location in order to amalgamate it with a business purchased in another location, than it would be in if that business had merely been moved to the new location without any such amalgamation. Accordingly, in such circumstances the Board must consider the scope of the bargaining rights contained in the Collective Agreement for the original business in order to determine whether the new location is within that scope. If it is, then an intermingling at that location of employees of the original business with employees of the purchased business can be dealt with by the Board under section 55(6).

11. The Board is of the view that the present case is more analogous to Canadian Trailmobile, supra, than to Mountain View Dairy, supra, and Chateau Gardens, supra. If Silverwood had simply moved its pre-existing business from its former location in Windsor to the location in Windsor at which the plant purchased from Borden is located the bargaining rights of Local 647 would have continued because the operation, although situated in a new location, would nevertheless have continued to be the "Windsor Branch Plant" within the meaning of the recognition clause set forth in Article 1 of the Collective Agreement referred to paragraph 2 hereof. Similarly, if Silverwood had moved its original business from Windsor to Chatham and then moved it back to Windsor, Local 647's bargaining rights (under the Windsor Branch Plant Collective Agreement) which would have been in abeyance while the business was being operated in Chatham, would have been reactivated by the return of the business to Windsor.

12. Although Local 647 would not have been entitled to assert bargaining rights for the employees in question under the Silverwood Windsor Branch Plant Collective Agreement while they were working out of Chatham, Local 647's bargaining rights for employees at Silverwood's original Windsor plant would undoubtedly have entitled it to bargain on behalf of any employees transferred back to that plant from Chatham. Thus, the present case is distinguishable from the Chateau Gardens case on the basis that in Chateau Gardens, the unions which respectively held bargaining rights for the employees at the nursing homes in Strathroy had no bargaining rights for persons employed in London, the place to which the employees in question were transferred; by way of contrast, Local 647 did have bargaining rights for persons employed by Silverwood at its original Windsor plant. Thus, if Silverwood had simply reopened its original Windsor plant and transferred the employees from its Chatham plant to that plant, Local 647 would have had bargaining rights for the employees in question under Article 1 of the Collective Agreement referred to in paragraph 2 hereof. Similarly, Local 647 can legitimately assert a claim for bargaining rights for persons employed by Silverwood in Windsor at the former Borden plant since that plant, as a result of the closure of Silverwood's original Windsor plant, the purchase by Silverwood of the Borden plant in Windsor and ;he subsequent integration of employees and accounts, has in effect become the "Silverwood Windsor Branch Plant" within the meaning of Article 1 of that Collective Agreement. Moreover, as in the Canadian Trailmobile case, supra, the manner in which this transfer of operations was affected by Silverwood does not change the fact that in substance its employees in one business were intermingled with those in another business.

13. Accordingly, having regard to the agreed facts and the submissions of the parties, the Board finds that an intermingling occurred within the meaning of section 55(6) when Silverwood transferred to Windsor on July 21, 1980 its Chatham-based wholesale milk and ice cream distribution operations which serviced Windsor area accounts, and integrated those operations with the Windsor wholesale milk and ice cream distribution business which it had purchased from Borden on March 1, 1980.

14. The fact that an intermingling does not occur until several months after a sale of a business does not preclude the Board from granting relief under section 55(6). See, for example, Avondale Dairy Limited, supra, in which the Board ordered a representation vote as a result of an intermingling which occurred 3 months after the sale. See also The Bryant Press Limited,[1972] OLRB Rep. Apr. 301, in which a vote was ordered as a result of intermingling which commenced approximately 1 month after the sale but "largely took place" more than 6 months after the sale and was not completed until 7/ ½ months after the sale.

15. As noted above, the parties are not in agreement concerning whether part-time employees should be entitled to vote in the event that the Board orders a representation vote . The applicant submits that part-time employees should be entitled to vote while the respondent and Local 440 share the opposite view. The Board has wide powers with respect to determining bargaining units and voting constituencies in cases arising under section 55(6), as indicated by section 55(6)(d) and section 55(8). In exercising those powers, it is desirable that the determination should be, subject to any exceptional circumstances that may exist in particular instances, consistent insofar as possible with the overall practice of the Board with respect to the determination of appropriate units (see Mammy's Wonder Bakeries, [1969] OLRB Rep. March 1324). Where there is a history of hiring part-time employees, the Board generally excludes that group from a full-time bargaining unit at the request of either party (see, for example, Inter-City (Bandag) Limited, [1980] OLRB Rep. March 324). Although the information provided to the Board concerning this aspect of the case was rather limited, it appears that Borden employed part-time employees at its Windsor plant and that Silverwood, as Borden's successor, maintained that practice. As indicated above, part-time employees are excluded from the bargaining unit set forth in the Local 440 Collective Agreement. Thus, Local 440 cannot and does not claim to represent any of the part-time employees in the intermingled work force. However, part-time employees are not excluded from the Local 647 Silverwood Windsor Branch Plant Collective Agreement. Although there is nothing before the Board which indicates whether Silverwood ever hired part-time employees at its pre-existing Windsor branch plant, it is clear that all of the persons transferred from Chatham to Windsor by Silverwood on July 21, 1980, were full-time employees. Thus, Local 647 did not represent any of the part-time employees in question prior to the intermingling.

16. If a substantial number of part-time employees in the intermingled groups had been represented by Local 647 prior to the intermingling, it might have been appropriate for the Board to direct that a representation vote be taken to permit such employees to indicate whether they wish to be represented by Local 647 or wish to remain unrepresented by a trade union (see Bermay Corporation Limited, [1980] OLRB Rep. Feb. 167, paragraph 21). If Local 440 had also represented a substantial number of such part-time employees, it might have been appropriate for the Board to order a representation vote to permit such employees to chose which of the two trade unions would be their bargaining agent (see the Bermay case, supra, at paragraph 20). However, in the instant case, none of the part-time employees in question was represented by either trade union prior to the intermingling; accordingly, it is appropriate for the Board to exercise its powers under section 55(6) to preserve the non-unionized status of those part-time employees.

17. Accordingly, having regard to all the circumstances:

(i) The Board determines that the employees affected by the application constitute two appropriate bargaining units, namely:

Bargaining Unit #1:

All employees of the respondent at its Windsor plant, save and except foremen, those above the rank of foreman, supervisors, engineers, office staff, retail store staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period;

Bargaining Unit #2:

All employees of the respondent at its Windsor plant regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, save and except foremen, those above the rank of foreman, supervisors, engineers, office staff, and retail store staff.

(ii) The Board declares that neither Local 647 nor Local 440 shall be the bargaining agent for the employees in bargaining unit #2.

(iii) The Board hereby amends the respective bargaining units set forth in Article 1 of the Local 647 Silverwood Branch Plant Collective Agreement (referred to in paragraph 2 of this decision) and Article 2 of the Local 440 Borden Windsor Plant Collective Agreement (referred to in paragraph 5 of this decision) so as to substitute bargaining unit #1 for the respective bargaining units set forth in those collective agreements.

26. The Board must now determine whether a representation vote should be taken of the employees in bargaining unit #1. Where an intermingling has occurred within the meaning of section 55(6) and some of the intermingled employees are represented by one trade union while others are represented by another trade union, the Board has a discretion to direct that a representation vote be taken to enable the intermingled employees to choose which of the two trade unions will be their bargaining agent. However, where there is a large disparity in the size of the intermingled groups of employees, the Board will generally not direct that a representation vote be taken, but rather will declare that the trade union representing the great majority of employees is to be the bargaining agent for the new bargaining unit. In the Alliance Dairy case, [1966] OLRB Rep. Aug. 336, sixty-nine former employees of the predecessor company were intermingled with four hundred and thirty employees of the successor company. Thus, there was a total of four hundred and ninety-nine employees in the bargaining unit, 14 per cent of whom were former employees of the predecessor company. In dealing with the request by the trade union which had formerly represented those sixty-nine persons, the Board stated:

"4. In the majority of cases which have come before the Board pursuant to [the predecessor of section 55], it has not been necessary, nor has it been requested that a representation vote be conducted. In virtually all of those cases in which a vote has been conducted, there was agreement between the parties that a representation vote was proper. In particular reference may be made to The Belt on-Quinn Lumber Limited case, [1965] OLRB Rep. August 373, and The Roman Catholic Separate School Board for the City of Windsor case, Board File No. 11385-65-M. In each of those cases roughly one third of the employees in the new bargaining unit had formerly been represented by the applicant trade union. It was not necessary for the Board to set our criteria as to the propriety of a representation vote in view of its reliance on the agreement of the parties in those cases.

5. The purpose of [the predecessor of section 55] is subject to the provisions set out in the section, to continue the bargaining unit where the employer has sold his business. Bargaining rights thus are protected in the interest of stability in collective bargaining relationships. Where two or more bargaining units are, as the result of a sale and the intermingling of employees, merged into one, as in the instant case, both the need for stability in collective bargaining relationships and plain common sense would require that, where there is a large disparity in the size of the two groups of employees, there would be no representation vote, with its necessary expense, propaganda and disruption, but rather a declaration should be made that the trade union representing the great majority of the employees is to be bargaining agent for the new bargaining unit. All the parties were agreed that no criteria existed by which a 'large disparity' or 'great majority' might be precisely defined; it was, however, common ground, that there might well be cases in which such a disparity existed that it would not be appropriate to hold a representation vote. In our view, it would be unnecessary and premature for the Board to attempt, in this case, to define for the future what the minimum proportion of employees would be which a trade union must represent in order to be entitled to appear on the ballot in a representation vote in cases of this nature. It is sufficient for the Board, in the circumstances of the instant case, to say simply that it does not deem a representation vote to be appropriate…"

The foregoing approach was also applied by the Board in The Corporation of the City of Mississauga, [1974] OLRB Rep. March 184, in which the Board declined to direct a representation vote and declared the intervener trade union (which had represented 89.7% of the employees in the new bargaining unit) to be the bargaining agent. A vote was also refused in The Regional Municipality of Halton, [1978] OLRB Rep. Aug. 750, in which the Board stated, at paragraph 8:

"…In this matter there is no difficulty concerning an appropriate bargaining unit and the transferred employees represent only slightly over 8 per cent of the employees in the unit. There is, therefore, no difficulty in ascertaining the relative support enjoyed by the bargaining agents. It would therefore seem to be unnecessarily disruptive to labour relations between the respondent and its employees to order a vote under these circumstances."

27. The Board had not specifically defined the minimum proportion of employees in the intermingled bargaining unit which a trade union must have represented prior to the intermingling for a representation vote to be appropriate. However, specific cases in which the Board has directed or refused a representation vote as a result of the degree of representation enjoyed by each of the competing trade unions provide some guidance as to the applicable parameters. In Alcan Building Products, [1968] OLRB Rep. May 212, an employer closed its window division and terminated all of the employees in that division. The employer's siding division took over the premises and rehired sixteen of the former window division employees who, together with the siding Division's work force of twenty-seven employees, became part of a total work force of forty-three employees. The Board found that a sale of a business and an intermingling of the employees of the two businesses had occurred. On the basis of respective representation of 37 per cent and 63 per cent of the employees by the competing unions, the Board directed that a representation vote be held. In the Borden case, [1970] OLRB Rep. Jan. 1244, the Borden Company Limited sold the Brantford area home delivery routes portion of its business to Silverwood Dairies Limited. The Board ordered a representation vote when the purchaser intermingled the ten employees formerly employed by the vendor with the purchaser's twenty-six employees at Brantford. Thus, representation of approximately 28 per cent of the employees in the new bargaining unit was held to be sufficient to justify a representation vote. In Bryand Press Limited, [1972] OLRB Rep. Apr. 301, a vote was ordered where the trade union represented only about one-third of the intermingled employees, the remaining two-thirds having not been represented by any trade union . Similarly, where "roughly one-third" of the employees in the new bargaining unit were represented by the applicant trade union, the Board found it to be "a proper case to conduct a representation vote" in the Canadian Trailmobile case, supra.

28. In Mountain View Dairy Limited case, supra, at paragraph 9, the Board declined to direct a representation vote where the applicant trade union represented only eight of the approximately sixty employees in the new bargaining unit, and declared the respondent trade union, which represented the remaining employees, to be the bargaining agent for the employees in the intermingled bargaining unit. Moreover, the Board suggested in that case that it would have disposed of the case in the same manner even if the respondent trade union had represented only seventy-five per cent of the employees in the new bargaining unit and the applicant trade union had represented twenty-five per cent. However, in Middlesex-London District Health Unit, [1971] OLRB Rep. Sept. 560, a vote was ordered despite the fact that the applicant trade union represented only about twenty-five per cent of the employees in the new bargaining unit. Similarly, in The Regional Municipality of Waterloo and the Corporation of the City of Cambridge, [1973] OLRB Rep. June 302, the Board directed that a representation vote be taken where one of the two competing trade unions represented twenty-four of the thirty-three employees and the other trade union represented only the remaining twenty-seven per cent of the employees.

29. In the instant case, Local 647 formerly represented five of the twenty-one employees in the integrated operation. However, an unspecified number of the sixteen other employees are apparently part-time employees (excluded from Bargaining Unit #1 as set forth above). Although in view of the foregoing Board jurisprudence this is a borderline case, having regard to all of the circumstances of the case and the submissions of the parties, the Board in the exercise of its discretion under section 55(8) directs that a representation vote be taken of the employees of the respondent in Bargaining Unit #1. All employees of the respondent in Bargaining Unit #1 on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote. Voters will be asked whether they wish to be represented by the applicant or by intervener #2 in their employment relations with the respondent.

30. This matter is referred to the Registrar.