Ontario Labour Relations Board

[1981] OLRB Rep. March 409

1699-80-R Labourers' International Union of North America, Oil and Gas Technicians, Service, Domestic and General Workers Local 1267, Applicant, v. WMI Waste Management of Canada Inc., Respondent, v. International Union of Operating Engineers, Local 793, Intervener #1 v. Teamsters Local Union No. 419, Warehousemen and Miscellaneous Drivers, affiliated with the International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America, Intervener #2.

BEFORE: M.G. Picher, Vice-Chairman, and Board Members M.J. Fenwick and F.W. Murray.

APPEARANCES: J.R. McPherson and C.G. Paliare for the applicant; G.J. Weir and J.G. Temple for the respondent; L.C. Arnold and F. Amis for intervener #1; J.J. Nyman and B. Bodkin for intervener #2.

DECISION OF THE BOARD; March 10, 1981

1. This is an application for certification filed by the Labourers' International Union of North America, Oil and Gas Technicians, Service, Domestic and General Workers Local 1267, (hereinafter referred to as "the Labourers") for bargaining rights in respect of all employees of the respondent working at and out of its sanitary land fill site at Maple in the County of York. The International Union of Operating Engineers, Local 793 (hereinafter "the Operating Engineers") has filed an application for certification by intervention. The Teamsters Union Local 419 (hereinafter "the Teamsters") has intervened alleging that it holds the bargaining rights applied for by both the Labourers and the Operating Engineers.

2. The facts are not substantially disputed. The respondent is a wholly owned subsidiary of Waste Management Inc., an American corporation with headquarters in Chicago, Illinois. Prior to 1979, the American parent company owned a number of waste disposal companies operating in Ontario. Two of those companies were York Sanitation Co. Ltd. and Disposal Services Limited, doing business in and around Metropolitan Toronto. In 1979, the parent company rationalized its corporate structures in Ontario. By articles of amalgamation effective March 21, 1979, Disposal Services Limited ceased to have a corporate existence and was subsumed into WMI Waste Management of Canada Inc., although the name Disposal Services continued to be used as registered business name. York Sanitation Co. Ltd., continued as a subsidiary of the parent Waste Management Inc. but is now entirely managed by WMI Waste Management Inc. of Canada Inc. It is not seriously challenged that WMI Waste Management of Canada Inc., the respondent in these proceedings, is a transferee of the business of Disposal Services Limited within the meaning of section 55 of the Act and is under common direction and control with York Sanitation Co. Ltd. within the meaning of section 1(4) of the Act.

3. Until 1976, Disposal Services Limited operated a land fill site at Maple. Its employees at that location were represented by the Teamsters pursuant to a certificate of this Board dated January 2, 1973. The bargaining unit in the certificate, and in subsequent collective agreements, included "all employees of Disposal Services Limited in Metropolitan Toronto and at Maple in the Township of Vaughan". In 1976, the Maple site ceased operations. As a practical matter, therefore, the Teamsters' collective agreements, the most recent of which expires on April 1, 1982, have thereafter been administered only in Metropolitan Toronto, where Disposal Services Limited, and now the respondent, continued to operate a yard at Weston and a transfer station on Parliament Street.

4. In July of 1980, the respondent opened a substantial new and sophisticated land fill site at Maple. Upon hearing of the revived operation at Maple, the Teamsters initially endeavoured to sign the employees working at the site into membership. After more closely reviewing the scope clause in their collective agreement they formed the opinion that the bargaining rights for the respondent's employees at Maple were already theirs. When they approached the respondent to assert their rights, they were told the small crew of employees then working at Maple were essentially engaged in site preparation. The respondent's officers also advised them that it was then undergoing considerable stress in a struggle for environmental approval. The respondent did not then deny the Teamsters claim to represent the employees, but asked, in light of the circumstances, whether the Teamsters would wait until July of 1981, when the site was scheduled to open to the public, before asserting their rights. The Teamsters accepted those representations at face value and agreed to forebear asserting their rights until operations at Maple were in full swing in the summer of 1981.

5. Against that background both the Labourers and the Operating Engineers proceeded to conduct membership drives among the employees working at the respondent's new site at Maple. If the Teamsters' rights are not a bar to their applications, each of them would appear to have membership support sufficient for outright certification. In other words, as between the Labourers and the Operating Engineers, the Board would conduct a representation vote among the employees in the bargaining unit.

6. The Teamsters do not oppose a representation vote and do not assert their collective agreement as a bar to either application. They do, however, submit that they should be included on the ballot as the incumbent union whose bargaining rights are being displaced. The Operating Engineers and the Labourers submit that the Teamsters should be viewed by this Board as having abandoned their rights, so as to be precluded from participation in any representations vote.

7. With that assertion, we cannot agree. While the Board does not necessarily endorse the arrangement by which the Teamsters agreed to postpone their bargaining rights, that goes only to the quality of their representation. The uncontroverted evidence is that the Teamsters showed interest in representing the employees at Maple from their first knowledge of the renewed operations. It is also clear from the evidence that they never walked away from their bargaining rights. On the contrary, it is plain that the Teamsters had every intention of asserting their rights in July of 1981, when, according to their understanding, the respondent would first be open for business. In our view, in the circumstances of this case, it would disregard the realities to infer an abandonment from the Teamsters' limited postponement of their bargaining rights with the respondent.

8. The Board accepts the submission of counsel for the Teamsters that the terms of the Teamsters' collective agreement were not intended to apply to the site at Maple, and could not apply to that location without some amendment. By its very language, the schedule respecting wages and job classifications appears to be predicated upon employment at either Weston or Parliament Street. Notwithstanding that the collective agreement might not be applicable, the bargaining rights reflected in its scope clause continue to exist until they are either terminated, displaced or abandoned. None of those things has yet happened. In these circumstances, the applications before the Board must be viewed as displacing subsisting bargaining rights held by the Teamsters. The Teamsters should therefore be on the ballot. (Evans Lumber and Builders Supply Ltd. 58 CLLC ¶18,117; Dominion Bridge Co. Ltd., [1970] OLRB Rep. Apr. 201).

9. The Board normally requires a displacement applicant to take all of the employees in the existing bargaining unit reflected in the scope clause of a collective agreement (Toronto Star Limited, [1974] OLRB Rep. July 416 at p. 417). That rule is grounded in the Board's natural concern to preserve the integrity and viability of established bargain units. However, the rationale for that rule does not apply in this case, where the integrity of the Teamsters' pre-existing bargaining unit encompassing both Metropolitan Toronto and Maple has eroded to the point where they do not themselves assert it. In the unusual circumstances of this case, therefore, it is appropriate to permit the applicants to contest the bargaining rights of the Teamsters at Maple.

10. The Labourers sought to place their application on the alternative basis that they already hold bargaining rights for the employees by the operating of section 1(4) of the Act. By a certificate of this Board, dated October 30, 1975, the Labourers obtained the bargaining rights for "all employees of York Sanitation Co. Ltd. working in and around Metropolitan Toronto". In subsequent collective agreements, including the current collective agreement between York Sanitation Co. Ltd. and the Labourers, the bargaining unit has become: "all employees of the company working in and around Metropolitan Toronto, the Region of York, County of Simcoe, County of Dufferin, Region of Peel and the Region of Durham". The bargaining rights so defined cover the area that includes the respondent's new operation in Maple. It is common ground that the Labourers have represented employees of York Sanitation Co. Ltd. at a land fill site adjacent both to the new site and to the site abandoned in 1976. Counsel for the Labourers submits that in this situation the Board should exercise its discretion under section 1(4) of the Act to declare that the Labourers' bargaining rights and their collective agreement with York Sanitation Co. Ltd. extend to the respondent's new sanitary land fill site.

11. There is no suggestion that in 1976, or at any time prior, the Labourers attempted to assert their bargaining rights as against Disposal Services Limited on the site which it then operated in Maple, and for which the Teamsters had bargaining rights. Counsel for the Labourers argues that there is no evidence before the Board from which we can conclude that the Labourers were then, or indeed at any time until now, aware of the corporate relationship between the two companies, and submits that we should therefore not decline to exercise our discretion to make a section 1(4) declaration favouring the Labourers.

12. In our view that argument cannot succeed. A party requesting the Board to exercise its discretion to provide the extraordinary benefit of a declaration under section 1(4) has, at the very least, an onus to call affirmative evidence to explain an obvious failure to assert its rights for a substantial number of years. It is well settled that delay by a union may preclude it from pleading the benefit of section 1(4) of the Act, (Ellwall & Sons Construction Ltd., [1978] OLRB Rep. June 535). Moreover, in any case, the Board should not permit section 1(4) applications to disturb established bargaining structures (Crown Cork & Seal, [1978] OLRB Rep. Sept. 809).

13. If we are to find that the Labourers were unaware of the corporate link between Disposal Services Limited and York Sanitation Co. Ltd. as an explanation for their inaction, we should have the best evidence on that issue through direct testimony from the Labourers themselves. No such evidence, or indeed any evidence, was called by the Labourers. We see no reason why the Labourers, having called no evidence should be allowed, by their silence, to force the other parties to in effect disprove a negative.

14. The purpose of section 1(4) is to safeguard established bargaining rights which might otherwise be eroded by corporate structuring. It is not an alternative to certification. (Industrial Mine Installations Ltd., [1972] OLRB Rep. Dec. 1029). To accede to the Labourers' argument would be to allow a union to use section 1(4) not to protect its bargaining rights but to expand them. In this case, there is no suggestion that either the respondent, or Disposal Services Limited before it, were established in such a way to adversely impact on the bargaining right's which the Labourers held with York Sanitation Co. Ltd. On the contrary, it is clear that for years the two companies, albeit related, operated as separate business entities with separate employees represented by two separate unions. The re-opening at this time of operations at Maple by the respondent after a hiatus of several years does not create a fresh situation appropriate for the application of section 1(4). The Labourers should not obtain under section 1(4) what they properly should be required to obtain through certification. (H. Allaire and Sons Co. Ltd., [1974] OLRB Rep. July 457; Zaph Construction of Canada Ltd., [1977] OLRB Rep. Nov. 741). For the foregoing reasons, the Labourers' submission in respect of section 1(4) must be dismissed.

15. The Board finds that all employees of the respondent working at Maple, Ontario, save and except foremen, persons above the rank of foreman, and office staff, constitute a unit of employees of the respondent appropriate for collective bargaining.

16. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made were members of the applicant on November 18, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

17. The Board is also satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made were members of intervener #1 on November 18, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

18. A representation vote will be taken of the employees of the respondent in the bargaining unit. All employees of the respondent in the bargaining unit 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.

19. Voters will be asked to indicate whether they wish to be represented by the applicant, intervener #1 or intervener #2 in their employment relations with the respondent.

20. The matter is referred to the Registrar.