[1981] OLRB Rep. March 247
2410-79-R United Food and Commercial Workers International Union, A.F.L. - C.I.O. - C.L.C., Applicant, v. Bright Veal Meat Packers Ltd., Globe Wholesale Meats Inc., Respondent.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.
APPEARANCES: James Hayes, Vincent Gentile and Stan Henderson for the applicant; Philip Wolfenden and Michael A. Spensieri for the respondents.
DECISION OF THE BOARD; March 9, 1981
This is an application for certification essentially for all employees of the meat-wholesaling operation of Bright Veal Meat Packers Ltd.
The Board finds that the applicant is a trade union within the meaning of section 1(1)(n) of The Labour Relations Act.
The operation in question is carried on in one-half of a building located in Metropolitan Toronto. The principles and owners of the corporation, the business and the building are Guido Tomasetti and Pat Dibiasi. In the other half of the building, Messrs. Tomasetti and Dibiasi carry on a similar meat-wholesaling operation through a second corporate vehicle which they own, being Globe Wholesale Meats Inc. Bright Veal employs approximately 10 persons, and Globe Meats 15. As noted, the applicant seeks bargaining rights only for the employees of Bright Veal. The respondent, Bright Veal, however, asks the Board to apply the provisions of section 1(4) of the Act, so that the Board would be able to describe the bargaining unit in terms which would include the employees of both companies. Section 1(4) provides:
Where, in the opinion of the Board, associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions concerned, treat the corporations, individuals, firms, syndicates or associations or any combination thereof as constituting one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate.
The applicant argues that in light of the labour relations purposes of section 1(4), it is inappropriate to apply section 1(4) in an application for certification at the request of the employer, (particularly where its effect would be to thwart the acquisition of bargaining rights) and that, in any event, there is no compelling reason for the Board to do so in the case now before it.
The remainder of the material facts can be stated briefly. Bright Veal is licensed to sell federally-inspected meat; Globe is not. Because of this, a brick wall separates the two operations and runs the full length of the building. There is no internal access between the two sides. The building stands at the corner of Signet Drive and Fenmar Drive; Bright Veal has an entrance on Fenmar Drive, and from the loading dock. Globe Meats has an entrance on Signet Drive, and also from the loading dock. Overhead tracks run through Bright Veal, outside to the loading dock, and inside again through Globe Meats. Because of the difference in licensing between the two areas, the track can only move meat from Bright to Globe, and not vice-versa.
Virtually all aspects of the two businesses are run by Mr. Dibiasi and Mr. Tomasetti. Globe Wholesale Meats Inc. began operating in 1975. In 1977, Bright Veal Meat Packers Ltd. was incorporated and began operating as well, initially using employees of Globe. Bright Veal generally deals with the larger supermarket chains, and handles generally larger orders and cuts. Globe Meats caters more to the smaller stores, and its orders tend to be cut smaller and boxed. Bright Veal uses the Fenmar Drive address in the course of its business, while Globe Meats uses Signet Drive. Each company has its own telephone number and stationery. Mr. Tomasetti testified that the reason for the use of separate street addresses, telephone numbers, and corporate names was to make it less obvious to their customers that Dibiasi and Tomasetti serviced both the large and small competitors. Mr. Tomasetti does the buying for both businesses, through Bright, which then invoices Globe for its share. The orders from both companies arc; then shipped out on the same trucks, which are owned by Bright Veal and driven by Bright employees. The trucks carry only the "Bright Veal" name on their side. The drivers of the trucks all report to the cashier-dispatcher, whose office is in the Globe half of the building. Bright does not charge Globe for any trucking services.
The Bright Veal employees skin, split and dress the carcasses, and are composed of skinners and helpers, as well as truck-drivers. The Globe Meat employees receive their meat from Bright Veal after it has been split. They then cut the meat into smaller portions and box it. Globe employees consist of butchers and packagers, as well as one employee who operates a small retail store on the Globe side. Packaging is generally lighter work, and is done by female employees of Globe. Work on the Bright side is somewhat heavier and perhaps slightly more skilled than on the Globe side, although not so much so that one or two of the Globe butchers cannot help out with the skinning in peak periods. There are ten butchers on the Globe side, but only three skinners on the Bright side. The foreman on the Bright side may on occasion come to the Globe side to cut off some pieces to complete an order for Bright.
All employees are hired directly by Mr. Tomasetti without reference to either company name in the advertising. Once hired, Mr. Tomasetti decides which company to assign them to. All smocks worn by employees on either side carry the name "Globe Meats" on the back. Both operations are administered through a common office located in the building. Each of the two groups of employees has its own entrance, lunchroom and change-room, however, and there is virtually no intermingling in that regard. There is, in addition, a different foreman for each group. Employees on each side are paid by cheques bearing the name of their own company.
Apart from the overall integration described above, there appear to be three main areas of interchange, or functional cooperation, between employees of the two operations. The Board finds that employees from one operation regularly join with employees from the other in the loading and unloading of the trucks, depending on who is available. The Board also finds that when, on occasion, Bright Veal requires meat to be boxed, the boxing is done by Globe packagers. It appears that the Globe employees will perform this task sometimes on their own side, and finds that there are at least one or two butchers on the Globe side capable of skinning on the Bright side, and that these employees are in fact called upon to do so from week to week, on a regular basis, when Bright Veal finds itself shorthanded.
As a matter of statutory interpretation, the Board cannot accept the position of the applicant that section 1(4) of the Act cannot be invoked by the employer. The section in its own terms states:
…the Board may upon the application of any person, trade union or council of trade unions concerned...
As can be seen, "trade unions" and "council of trade unions" are specifically referred to. Had the Legislature desired to stop there, it could have done so very easily. But instead it chose to include the word "person", which by virtue of the Interpretation Act, R.S.O. 1970, c.225, s.30 can clearly include a "corporation" or similar legal entity which would act in the capacity of an employer. (For a comparable analysis of section 123 of the Act, see Dover Corporation (Canada) Ltd., [1972] OLRB Rep. May 435.)
- There would appear to be no basis for the Board, therefore, to find that the section, as drafted, cannot be invoked upon the application of an employer. The Board clearly assumed this in Forest Public House, [1974] OLRB Rep. Jan. 40, although in that case there was insufficient intermingling to cause the Board to exercise its discretion to grant the employer's request. Perhaps more significantly, the Board in Industrial-Mine Installations Limited, [1972] OLRB Rep. Dec. 1029, for the first time engaged in a comprehensive analysis of the purposes of the section. It should be noted that the Board first had this to say:
- Section 1(4) is obviously contemplated to cure the mischief that results from being unable to properly define and tie down the employment relationship. In many situations where companies have a close relationship an employee may be shifted from one company to another so that his employment relationship, at any given period, is difficult to define in terms of one employer. So too, the number of employees employed by one of those companies at any given time may be impossible to ascertain.
This is not the problem in the present case. The Board went on, however, to comment on some of the other contexts in which the Board had come to apply section 1(4), and continued as follows:
So too, in the case where associated or related employers joined in a common enterprise and used one work force, which was shifted and transferred from time to time, the certification with respect to one employer only was, in effect, a certification of a segment of the total enterprise and could seriously impair the totality of the business operations by inhibiting the shifting of employees between union and non-union segments of the enterprise. It was also possible in situations where associated or related companies carried on a single enterprise that employees of the separate legal entities could be represented by different trade unions so as to cause the bargaining rights within the single enterprise to be unduly fragmented. An example of the type of situation where section 1(4) was applied is found in Walters Lithographing Company Limited, et al, [1971] OLRB Rep. 406.
It is in these types of situations that the interests of the parties in having the Board treat separate employers as constituting one employer for the purpose of the Act became apparent, and it is for that reason that section 1(4) was enacted.
The Board finds these latter comments from the Industrial-Mine Installations case to be pertinent to the case now before it. Needless to say, the Board must necessarily be vigilant in assessing the apparent merit of arguments which may unduly delay the processing of an applications for certification, and a marginal degree of integration would not likely cause the Board to proceed at length with a request that section 1(4) be applied. But the Board, on the other hand, cannot shut its eyes to the creation of a situation, through piecemeal certification, which would unreasonably restrict the employer in the manner in which it has always carried on its business, as well as creating the potential for different trade unions becoming bargaining agent for essentially integrated segments of the business.
In the present case, the applicant concedes that the basic conditions of section 1(4) have been made, and that indeed, the applicant itself would likely be in a position to obtain from the Board in this case a section 1(4) declaration, had it elected to request one. The applicant argues, however, that no compelling labour relations purpose exists here for granting the declaration when it is the employer who is making the request, particularly where the practical result would be to thwart the acquisition of bargaining rights. The Board has always noted that the right to self-organize, however, must be reconciled with other considerations of an "appropriate" bargaining unit (see, e.g., Westeel-Rosco Limited, [1979] OLRB Rep. Nov. 1125), and, for the reasons given in the preceding paragraph, the Board does not consider it appropriate to grant a bargaining unit restricted to employees of Bright Veal Meat Packers Limited. The Board has taken into account the fact that it is the employer itself which chose to present two separate faces of its operation to the public, and that the applicant has proceeded to organize along those corporate lines. The two faces, however, were adopted for commercially-oriented purposes, and there are few facts before the Board that would not have been apparent to employees working on either side of the wall. Accordingly, the Board does not in the present case find the corporate posture adopted by the employer, for its business reasons, to be controlling with regard to the labour-relations issues which the Board must determine.
Of perhaps greater significance is the fact that the employer itself has diminished the community of interest between the two employee groups by designating separate entrances, lunchrooms and locker-rooms. This, however, appears to be a derivative of the requirement by licensing authorities that there be no internal access between the two sections of the buildings, in view of which the employer has, it would appear for reasons of efficiency, chosen to locate employee entrances and rest areas in proximity to the employee's normal work areas. On the facts here, the Board finds this circumstance not sufficient to override the labour-relations consequences of what the Board finds to be a comprehensive integration of the two operations, with both regular and significant intermingling between the employees of the two groups.
The Board accordingly declares Bright Veal Meat Packers Ltd. and Globe Wholesale Meats Inc. to be one employer for the purposes of The Labour Relations Act. Globe Wholesale Meats Inc. is added as a respondent to these proceedings. The Board finds that all employees of the respondents in the Municipality of Metropolitan Toronto, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
Having regard to the evidence filed with the Board together with the number of employees in the combined unit, the Board further finds that less than forty-five per cent of the employees of the respondents in the bargaining unit at the time the application was made were members of the applicant on March 31, 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.
The application is accordingly dismissed.