Ontario Labour Relations Board
[1981] OLRB Rep. March 321
0914-80-U 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, Complaints, v. Silverwood Dairies, Division of Silverwood Industries Limited, Respondent.
BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.
APPEARANCES: Ken Petryshen for the complainant; B. F. MacDonald and T. Kotschorek for the respondent.
DECISION OF THE BOARD; March 10 1981
This is a complaint under section 79 of The Labour Relations Act in which the complainant alleges that the respondent has breached sections 56 and 58 of the Act. The complaint as originally filed also alleged a violation of section 83 of the Act, but the complainant decided not to pursue that allegation.
Since the section 79(4a) "reverse onus" applies only to the alleged breach of section 58 and does not apply to the other allegations contained in the complaint, the Board, after considering the submissions of the parties, called upon the complainant to proceed first with its evidence. The Board's procedural ruling does not, of course, affect the legal burden of proof. The Board will apply section 79(4a) to those allegations to which it is legally applicable (see Craftline Industries Limited, [1977] OLRB Rep. April 246).
A total of six witnesses testified before the Board during the three days of hearing of this matter. There were a number of conflicts in the evidence, particularly with respect to the dates on which meetings were held between the representatives of the complainant and the respondent, and the precise matters discussed at such meetings. The Board has resolved those conflicts by assessing the relative credibility of the various witnesses. In making those assessments, the Board has considered a number of factors, including the consistency of their evidence, the firmness of their memories, their ability to resist the influence of interest to modify their recollections, their capacity to express their recollections clearly and their demeanour.
The respondent operated a wholesale milk and ice cream distribution business in Windsor for many years. The complainant was the bargaining agent for a bargaining unit of employees of the respondent described as follows in Article 1 of the collective agreement in force between the complainant and the respondent from May 1, 1978 to April 30, 1980 (the "Windsor Branch Plant Collective Agreement"):
"...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."
The complainant has been the bargaining agent for the employees at the respondent's Windsor Branch Plant for approximately fifteen years. Originally the respondent operated a processing plant in Windsor but that part of the operation was closed about ten years ago. The retail delivery part of the respondent's Windsor operation was subsequently transferred to a franchisee. As a result of those changes, the respondent's Windsor work force declined from approximately 100 to 17.
T. F. Kotschorek was hired in September of 1978 as the District Manager of the respondent's London district, which includes its Chatham and Windsor operations. He was subsequently promoted to Vice-President - Western Ontario, before being further promoted to his present position of Vice-President - Corporate Planning, Marketing and Sales. It was his evidence that he was hired to "clean up" as the respondent was "in bad shape in Southwestern Ontario" and was "in a steady decline". He testified that the plan of the respondent at the time he joined it "was to get the thing on its feet as soon as possible - it was a matter of survival at the time." Mr. Kotschorek arranged for a special projects manager to do a "three or four week" audit of the respondent's distribution system. Although this was a "very superficial study", it indicated that there were "some real inefficiencies". As a result, a new position - Manager of Distribution - was created in April of 1979 and Glenn Lee was promoted to fill it.
Improving the profitability of the Windsor Branch Plant operation was one of Mr. Kotschorek's highest priorities. It was his evidence that it was necessary to have a profit contribution of seven per cent to gross sales at each branch in order to provide proper support for the respondent's overall dairy operation. He advised the Board that in 1978, the Windsor Branch was in a loss position and that in 1979, its profit contribution was only .6% to sales. He hoped to obtain a greater rate of return by effecting economies in the Windsor operation.
In August of 1979, consultants were retained to conduct a fifteen week study to provide an intensive appraisal and analysis of the respondent's overall distribution and branch operations in southwestern Ontario. The consultants issued weekly reports. Their report for the week ending October 19, 1979 recommended that the respondent's Windsor and Chatham Branches be combined under a system by which all milk interbranch deliveries for the Windsor area would go from London to Chatham (for ultimate delivery in Windsor) instead of directly from London to Windsor. They also recommended route realignments and immediate capital expenditures of $124,000.00 to purchase the new equipment necessary to implement the recommended changes. The consultants projected annual "labour and fringes" savings of over $134,000.00 as a result of the realignment of milk, ice cream and interbranch routes which they recommended for Windsor and Chatham.
Mr. Kotschorek (in collaboration with Mr. Lee) decided to proceed with the recommended changes. He successfully solicited an "extraordinary capital release" from the Directors of the respondent and placed the first order for new equipment on November 2, 1979. A target date of November 26, 1979 was set for the implementation of the recommendations concerning the Windsor Branch operation. Meanwhile, other parts of the programme not related to Windsor were implemented; the respondent's Teaswater Branch was closed and some changes were made in the London and Kitchener operations.
On November 19, 1979, Mr. Lee along with two other members of management (Ross McIntosh - the acting Windsor Branch Plant Manager, and George Bennett - the London District Sales Manager) met with representatives of the complainant to announce the proposed transportation, route and equipment changes. When Mr. Lee informed them that the changes would result in the lay-off of eight or nine Windsor Branch Plant employees, the representatives of the complainant were very upset. They were particularly disturbed by the potential lay-off of the Windsor interbranch drivers. Gerry Kennedy, a business agent of the complainant, told Mr. Lee that there was "no way that it was ever going to happen".
Members of management, including Mr. Lee and Mr. Kotschorek, met on November 22nd to discuss the November 19th meeting. It was decided to proceed with the proposed changes, but to implement them on December 3rd, one week later than previously planned, and to have another meeting with the complainant as soon as possible. Accordingly, a further meeting was held on November 23rd. In attendance at that meeting on behalf of the respondent were Mr. Kotschorek, Mr. Lee and John Houston. Mr. Houston, who had been the respondent's Director of Employee Relations for twenty-six years prior to his retirement in September of 1979, was retained by the respondent as a consultant in early November of 1979 as it was felt that his extensive knowledge concerning the respondent's employee welfare plans would be of assistance in implementing the respondent's plans to effect economies by reducing its work force. Mr. Houston, who served as the respondent's spokesman at the meeting, informed the representatives of the complainant that the respondent had two alternatives to close out the Windsor operation completely, or to take immediate steps to retrench, realign routes and effect economies of operation. He also told them that as it was the desire of the respondent not to close the operation, the Company had elected to exercise the second option. Mr. Kotschorek confirmed this information and provided the reasons for the proposed changes. The complainant's opposition to the proposals continued to be very strong and vociferous.
On November 27th, Mr. Kotschorek was shocked to learn that N & D Supermarkets Ltd. ("N & D"), one of the respondent's major Windsor customers, had decided to eliminate the respondent as the supplier of its "private label" fluid milk. N & D private label sales represented almost twenty per cent of the respondent's total Windsor sales (6.8% of the "total throughput" at the respondent's London processing plant). N & D was also a very important customer in relation to the Windsor Branch Plant's profit position since the large volume private label deliveries to N & D were very efficient. It was decided to delay the implementation of the proposed Windsor Branch changes because those proposals were based upon the continuance of N & D as a customer, and also because of the continuing opposition of the complainant and the nearness of the Christmas period. Substantial efforts, including attendances at N & D by the President and by the Sales Manager of the respondent, were made in an attempt to regain the N & D private label account but those efforts were unsuccessful.
The consultants were instructed to review and report to the respondent the options available to it in light of the loss of the N & D private label account. In a report dated December 7, 1979, the consultants indicated that there were two alternatives:
"1) Maintain an operation center in Windsor. This means then fighting to keep it open with the idea of going after business to compensate for the loss N & D.
- Closing down Windsor and operating out of Chatham. Due to the effect of N & D volume loss to the Windsor operation this may be the most economical approach. The remaining accounts can be serviced adequately and economically from Chatham. In either case some of the small unprofitable or marginal accounts would be transferred to S.A.Y.D. [a franchise]."
In commenting to the Board concerning that report, Mr. Kotschorek said: "They [the consultants] left the choice to us but suggested by innuendo that the second option would be the way to go." Mr. Kotschorek then requested that the respondent's "operating people" prepare a "definitive position" on the matter by early January.
- In response to Mr. Kotschorek's request, Mr. Lee provided him with the following internal letter dated January 11, 1980:
"After a complete evaluation of the Windsor/Chatham operation the following are my recommendations:
Service Windsor from Chatham regardless if we have or do not have N&D.
Servicing from Chatham without N & D there would be three wholesale milk routes, two ice cream routes and two reliefmen. Miss M. Brothers would be transferred to Chatham to eliminate the $260.00 LJ charge. We would then buy back services from LJ for Saturday work only to answer phones and cashing in procedures.
R. Benoit to manage the Chatham operation. R. McIntosh to assist for one to two months until it is stable, then Ross to return to London.
The necessary changes in Chatham are as follows:
Remove the existing garage.
Remove existing barn.
Relocate hydro hookups.
Update refrigeration in freezer, which needs to be done anyway.
Split off a drivers' room and relocate E. Millie's office so that the branch manager and the clerk will have offices side by side.
Costs - one two and three would cost approximately $5,000. Number four would cost between $10 - 15,000 and number five would be approximately $2,000. This will be updated in the near future.
Despite continued efforts by the respondent to regain the N & D private label account, on January 14, 1980, N & D confirmed that it had made a commitment to another supplier and could not reverse its position. However, the respondent was permitted to continue to produce N & D's private label product until the packaging supplies were exhausted, which was projected to, and did in fact occur on February 16, 1980. After that, N & D ceased to be a milk customer but continued to purchase ice cream from the respondent.
Having decided to close down the respondent's Windsor Branch operation and service the Windsor customers from Chatham, Mr. Kotschorek caused the following internal letter to be distributed to Mr. Lee and three other members of management on January 14, 1980:
"I have recently completed a meeting with N & D Supermarkets in Windsor on January 11, 1980. This meeting represents the last of a series of meetings that were held between N & D and myself in an effort to reverse their decision on the production of their own private label bag. I was unable to reverse this decision and therefore it was agreed between N & D and Silverwoods that the last shipment of their bags would occur the evening of February 16th.
Effective February 18th Silverwoords will discontinue producing the N & D bag.
By this letter I am requesting that Dave Lavender keep me informed on a weekly basis of the inventory position of N & D's outer bag. With this information would you please provide me with an estimated number of weeks supply this represents,
With regards to the above dates the Windsor/Chatham distribution plan will be installed February 18th. All parties intimately involved with this installation are to be notified no later than February 11th. This includes of course the Union and the Windsor employees. Glen Lee will have this responsibility.
By this letter I am requesting that PMD [the consultants] contact Mr. Glen Lee to review the Windsor/Chatham program in detail during the month of January. It is important that this review be completed in January in order to permit Silverwoods sufficient time to make the necessary arrangements, etc.
I trust the above will be implemented as indicated and I cannot stress enough that the confidentiality of this letter be maintained as I do not want the information or our approach to leak out."
Management hoped to realize significant economies by consolidating the Windsor and Chatham operations: the Windsor Branch Plant overhead (including rental, electrical and heating expenses) would be eliminated; managerial, clerical and operational personnel would be reduced; and unprofitable or marginal accounts would be transferred to a franchisee. The interbranch transportation system would also be rationalized by eliminating the anomalous interbranch drivers who operated out of Windsor; all other interbranch drivers for the region operated out of London.
In accordance with Mr. Kotschorek's instructions, Mr. Lee arranged for a meeting to be held in Windsor with representatives of the complainant on February 11, 1980. Mr. Houston again served as spokesman for the respondent, although Mr. Kotschorek and Mr. Lee also spoke at the meeting. The complainant's representatives were told at that meeting that the unfortunate loss of the N & D private label account and the unprofitable operation of the Windsor Branch Plant had resulted in a decision to close the Windsor operation effective February 18, 1980 and service the Windsor customers from Chatham. They were also told that there would be eight new positions in Chatham which would be made available to the seventeen Windsor Branch employees on the basis of seniority and ability.
Mr. Kotschorek told the Board that the decision was not announced to the complainant until one week before the implementation date because he "wanted to make sure that the details had been worked out", because he was "concerned in such a situation that there might be a misrepresentation of the situation", and because he was trying to "avoid adverse publicity". He also testified that the implementation date was "predicated on the run-out at the N & D [private label] bags - the installation date coincided with the run-out".
Mr. Lee met with individual employees on February 12, 1980 to provide information concerning the positions available in Chatham. They were offered a "three week trial time" in the Chatham Branch, the terms of which were described as follows in a letter dated February 15, 1980 to the affected employees:
"This is to confirm our conversation regarding the agreement between Silverwood and yourself as to the 3 week trial time in the Chatham Branch,
(a) If within the first three weeks starting February 18th, 1980 you change your mind and want to take either an early retirement or terminate your employment with Silverwoods, Silverwood will grant all monies owing according to the Employees Standard Act [sic] as we would have at the time of the closure of the Windsor Branch.
b) It is also agreed between Silverwood and yourself that in the event you do not wish to work in the Chatham Branch, you will give Silverwood at least full week's notice."
A number of the senior employees elected to take an early retirement or termination pay (under The Employment Standards Act, 1974) rather than transfer to Chatham. (It was the unrefuted evidence of Mr. Kotschorek that "it has been the [respondent's] policy to give pay in lieu of notice since [he has] been with the Company". The Teaswater employees were also given pay in lieu of notice when that Branch was closed by the respondent.)
Those former Windsor employees who did accept positions in Chatham were covered by the collective agreement (in force from December 1, 1978 to November 30, 1980) between the complainant and the respondent in respect to the following bargaining unit:
"…all employees of the [respondent] employed at or working out of its plant in Chatham, save and except Plant Superintendent, Chief Engineer, Sales Manager, Route Foreman, 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."
Although the rates of remuneration specified in that collective agreement were lower (by about $6.00 per week) than those specified in the Windsor Branch Plant Collective Agreement, the wages of the eight employees who accepted transfers to Chatham were "red circled" so as to remain at their former levels until the rates under the Chatham Branch Collective Agreement rose to similar levels. They lost their plant seniority but retained their individual seniority dates for purposes of vacation pay and pension entitlement.
As of February 18, 1980, those eight employees began to service the respondent's Windsor customers from Chatham by obtaining their milk and ice cream in Chatham instead of Windsor. The milk delivery routes were modified substantially but the ice cream routes remained unchanged. Although the new routes, which had Chatham as their starting point had some overtime built into them, a number of the drivers worked considerably more overtime than had been anticipated by management. Moreover, the respondent had not expected that many of the senior employees would elect to receive termination pay rather than to accept a transfer to Chatham. Thus, it appears that the economies actually realized by the respondent were not as large as had been anticipated. Nevertheless, some improvement in the profitability of the operation did result.
On February 26, 1980, Mr. Kotschorek became aware for the first time that the respondent was going to purchase the Windsor milk and ice cream wholesale business of Borden Dairy, Division of Borden Company Limited ("Borden") on March 1, 1980 as part of a major acquisition. It was Mr. Kotschorek's evidence that all of the negotiations concerning such an acquisition are conducted by Silverwood Industries Ltd., a holding company which owns a number of large businesses including the respondent, Silverwood Dairies. He further testified that the existence of such negotiations is not disclosed to persons in positions such as his until the purchase has been approved by the Board of Directors of Silverwood Industries Ltd. Counsel for the complainant submitted that "it is simply incredible to contend that the London management were unaware of the probable sale of Borden's when the decision to close the Windsor Branch was made." However, we reject that submission and accept the candid and credible testimony of Mr. Kotschorek that he had no knowledge prior to February 26, 1980 of the prospective purchase. The plausibility of that evidence is supported by the credible testimony of Mr. Houston who told the Board on the basis of his extensive experience with the respondent that "when these types of acquisitions are made, they are kept very secret by the senior officials in the Company and held very tightly."
The aforementioned purchase took place on March 1, 1980. As a result of that transaction, the respondent became bound by a collective agreement (the "Borden Collective Agreement") between Borden and Retail, Wholesale and Department Store Union Local 440, A.F.L., C.I.O., C.L.C. ("Local 440"). Between February 18, 1980 and July 20, 1980, the number of former Windsor employees working for Silverwood in Chatham dropped from eight to five as a result of resignations. At least one of the former Windsor employees applied for employment at the Borden Windsor Plant during that period but was not hired. On July 21, 1980, the respondent 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 and integrated them and the customers which they serviced into the Windsor wholesale milk and ice cream business which it had purchased from Borden. As a result, the work force of the business rose from sixteen to twenty-one employees. By decision dated October 14, l980 in File No. 0912-80-R (Silverwood Dairies, [1980] OLRB Rep. Oct. 1526), the Board found that an intermingling had occurred within the meaning of section 55(6) of the Act, and after determining appropriate full-time and part-time bargaining units, directed that a representation vote be taken of the employees in the full-time bargaining unit to determine whether they wished to be represented by the complainant or by Local 440. Since more than fifty per cent of the ballots cast were cast in favour of Local 440, the Board declared Local 440 to be the bargaining agent for the bargaining unit in a decision dated March 4, 1981.
The complainant contends that the closure of the Windsor Branch Plant and the temporary servicing of the Windsor accounts from Chatham was designed by the respondent to prejudice the complainant's rights under The Labour Relations Act (particularly section 55) and ultimately to remove the complainant as the bargaining agent for the respondent's Windsor employees.
The complainant also relied upon a letter of understanding dated September 29, 1978 from Mr. Houston (who was at that time the respondent's Director of Employee Relations) to Mr. Kennedy. Paragraph eight of that letter reads as follows:
"8. Delivery Arrangements
The company does not intend to make any change during the term of the present agreement, in the arrangement whereby Windsor Branch employees make deliveries in the Windsor market.
The foregoing understanding will continue in effect until April 30, 1980."
That letter was signed by Mr. Houston and was also signed by two officials of the complainant in acknowledgement of the complainant's acceptance of the understanding.
Counsel for the complainant contended that the letter of understanding formed part of the Windsor Branch Plant Collective Agreement. He further contended that the closure of the Windsor Branch Plant was a flagrant violation of paragraph eight of that letter, which violation seriously undermined the complainant, and could, in his submission, properly be considered as evidence of anti-union motivation.
Mr. Kennedy, an experienced business agent of the complainant who serviced the bargaining unit under the Windsor Branch Plant Collective Agreement (and its predecessors) for fifteen years and served as the complainant's chairman for negotiations concerning that agreement and its predecessors, testified that the letter of understanding was negotiated along with the collective agreement but was not prepared until after the collective agreement was signed. It was his evidence that it "was always the practice of [the respondent] and [the complainant] that some articles not contained in the collective agreement were attached to it" in the form of a letter of understanding because the letter "covered things which [the respondent] did not have in its collective agreement."
Mr. Houston was also involved in the negotiations which gave rise to the letter of understanding. It was his evidence that the letter was given in response to the complainant's concerns about the continuation of the respondent's operation in the Windsor market. He told the Board: "We couldn't give a blanket assurance but we did give the letter saying that we had no present intention of changing the arrangements whereby Windsor Branch employees made deliveries in the Windsor market." He conceded that it was not negotiated separately but rather "was part of the main negotiations" and "was merely a matter which [the respondent] didn't feel should be included in the collective agreement". It was his view that the closure of the respondent's Windsor Branch Plant did not violate the understanding contained in paragraph eight of that letter "because Windsor employees continued to make deliveries in the Windsor area, albeit they had to do it from Chatham."
The complainant did not at any time attempt to file a grievance alleging that the respondent's closure of the Windsor Branch Plant constituted a breach of the collective agreement of the letter of understanding. In fact, the evidence does not indicate that the possibility that the closure might be in breach of the collective agreement was ever raised with the respondent at any time (prior to the hearing of this matter) by the representatives of the complainant. Mr. Kennedy's explanation for the failure to grieve was as follows:
"We sought legal advice. It just happened this way. Unfortunately we were involved in too many other things on this close-out. We sought advice prior to March 1st, in the latter part of February. We were not told or advised not to file a grievance. It was probably my misjudgement which resulted in a grievance not being filed at that time."
An employer who closes his plant, relocates or takes any other major business decision to avoid being bound by a collective agreement, to avoid having to deal with his employees collectively through a trade union or to avoid the possibility of being subject to economic sanctions is guilty of an unfair labour practice (see, for example, Westinghouse Canada Limited, [1980] OLRB Rep. Oct. 577; Academy of Medicine, [1977] OLRB Rep. Dec. 783; and Humpty Dumpty Foods Limited, [1977] OLRB July 401). However, if a business decision which has an adverse effect on a trade union is not in any way motivated by anti-union considerations, the employer's action is not restricted by The Labour Relations Act (see Westinghouse Canada Limited, supra, at paragraph 64; and Skyline Hotels Limited [1980] OLRB Rep. Dec. 1811.
Although the Board may defer to arbitration where a section 79 complaint alleges that an employer has breached a collective agreement provision, in appropriate circumstances the Board will determine whether the employer's action, which is alleged to be an unfair labour practice, constitutes a violation of its collective agreement with the trade union. In Westinghouse Canada Limited, supra, paragraph 35, the Board stated:
"Section 42 of the Act provides:
'A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement.'
The long-standing practice of this Board has been to defer to the arbitration procedures established under section 37 of the Act to resolve all differences between the parties arising from the interpretation, application, administration and alleged violation of a collective agreement when complaints of this type have been brought under the Act. Where the complaint involves both the alleged unfair labour practice the Board has maintained its practice of deferral where satisfied that the merits of both the alleged collective agreement breach and the alleged unfair labour practice can be dealt with at arbitration. The Board made it clear in Selinger Wood Ltd. [1979] OLRB Rep. June 574, however, that where there is an alleged unfair labour practice and related breach of the collective agreement which, if proven, would constitute a defacto repudiation of the trade union the Board will assess the employer's conduct vis-a-vis his obligation under the collective agreement. Where an employer's conduct constitutes a flagrant and massive violation of the agreement, and has the effect of seriously undermining a trade union, the Board may consider the employer's actions as evidence of an anti-union motivation. In assessing the employer's conduct the Board may be required to put its mind to the terms of the collective agreement."
(See also Vajdi Inc., [1980] OLRB Rep. Aug. 1254.)
Although it is arguable that the respondent's action of closing its Windsor Branch Plant may have violated paragraph eight of the letter of understanding and that the letter of understanding may have formed part of the Windsor Branch Plant Collective Agreement, we are not satisfied that the present complaint is an appropriate case for the Board to remedy under section 79 the complainant's failure to file a grievance and (if necessary) to refer it to arbitration. The complainant has not provided a satisfactory explanation for its failure to grieve this matter and has not suggested that the merits of the alleged collective agreement breach (which, it is alleged, also constitutes an unfair labour practice) could not have been dealt with fairly, promptly and effectively through the grievance and arbitration procedures under the Windsor Branch Plant Collective Agreement. Moreover, even if the respondent's action did violate the collective agreement, we are nevertheless satisfied on the basis of all the evidence before us that the closure of the Windsor Branch Plant was motivated by bona fide business concerns and was not in any way motivated by anti-union considerations. Accordingly, this is not a case in which a finding by the Board that the respondent had breached the collective agreement by closing the Windsor Branch Plant would lead the Board to infer that the closure was motivated by anti-union animus, as the evidence taken as a whole negates any such inference.
Mr. Kennedy noted in his evidence that the Borden Collective Agreement contains a "base and commission structure" for all drivers while the Windsor Branch Plant Collective Agreement contains an "hourly rate structure" for milk drivers and a base and commission structure for ice cream drivers. In his examination-in-chief, he testified that he "would think" that the respondent "prefers a base and commission structure". He further testified that "this has come up during negotiations". However, he later admitted that the respondent "hasn't done anything" to demonstrate that it prefers a base and commission structure to an hourly rate structure. He also conceded that since 1971 when the respondent agreed to incorporate an hourly rate structure into its Windsor Branch Plant Collective Agreement, "there was never any proposal by the [respondent] to change this" or "to go back to a commission structure". The evidence also indicates that which of the structures generates the larger amount of remuneration depends upon the volume of sales. The respondent's Windsor employees who accepted transfers to Chatham continued to be paid the hourly rate structure under the Windsor Branch Plant Collective Agreement. Moreover, the evidence indicates that the Chatham Branch Collective Agreement (between the complainant and the respondent) which would ultimately have determined their terms and conditions of employment if they had continued working out of Chatham, also contained an hourly rate structure. Having regard to those facts and to all the other evidence before us, we are satisfied that the respondent did not close its Windsor Branch Plant for the purpose of replacing the hourly rate structure under its Windsor Branch Plant Collective Agreement with the base and commission structure under the Borden Collective Agreement, or for the purpose of escaping any of its other obligations under the Windsor Branch Plant Collective Agreement. The respondent's actions were motivated solely by bona fide business considerations devoid of any anti-union animus.
For the foregoing reasons, this complaint is hereby dismissed.