[1982] OLRB Rep. February 280
1941-81-R C.U.P.E., Local 43, Applicant, v.City of Toronto Non-Profit Housing Corporation, and Corporation of The City of Toronto, Respondents
BEFORE: M. G. Picher, Vice-Chairman, and Board Members J. H. F. Ade and S. Cooke.
APPEARANCES: J. Sack, Q. C., J. Mele and Les Kovacsifor the applicant; R. Rae, John P Sanderson, Q. C., Jane Forbes-Roberts and J. Palkeninin for the respondents.
DECISION OF THE BOARD; February 25, 1982
I. This is an application under secion 1(4) of the Labour Relations A ct. The applicant, C.U.P.E. Local 43, seeks a declaration that the Corporation of The City of Toronto and The City of Toronto Non-Profit Housing Corporation are a single employer for the purposes of the Labour Relations Act. It specifically requests the Board to order the respondents to bargain on the basis of a single unit, rather than in two bargaining units now held separately by the union.
The facts are not in dispute and are succinctly set out in the following statement appended to the application.
By an application dated February 10, 1981 the Canadian Union of Public Employees applied for Certification for all employees of the Respondent City of Toronto Non-Profit Housing Corporation save and except Property Manager and persons above the rank of Property Manager. An interim Certificate was issued following a Board Decision dated March 4, 1981. (See Board File No. 2436-80- R). A final Certificate was issued dated August 12, 1981.
The employees in the bargaining unit are employed in cleaning and maintenance of the residential buildings operated by the Respondent City of Toronto Non-Profit Housing Corporation (hereinafter Cityhome).
Once it has obtained bargaining rights for a group of employees, the standard practice of the Canadian Union of Public Employees (hereinafter C.U.P.E.) is to ask those employees to decide whether they wish to charter a new Local or to join a pre-existing Local. Where the employees decide they wish to join a pre-existing Local, C.U.P.E. requests the Local concerned to accept the employees into the Local and to bargain on their behalf with their employer.
Cityhome employees voted unanimously to request the Applicant C.U.P.E. Local 43 (hereinafter Local 43) to accept them as members.
On June 23rd, 1981 the Executive of Local 43 voted unanimously to accept the Cityhome employees concerned as members of Local 43, on May 21, 1981.
By letter dated July 2nd, 1981 the Ontario Regional Director of C.U.P.E. notified R. M. Bremner, General Manager of the Respondent Cityhome, that the said employees have been transferred by C.U.P.E., to Local 43 and the Mr. L. Kovasci would conduct negotiations.
On August 23rd, 1981 Local 43 served the Respondent Cityhome with a written Notice of its desire to bargain.
The Applicant Local 43 represents certain employees of the Respondent City of Toronto (hereinafter the City).
The Respondent Cityhome is a corporation wholly owned and controlled by the Respondent City. Five of the nine directors of the Respondent Cityhome are members of City of Toronto Council.
The President of Cityhome is Arthur Eggleton, Mayor of the City of Toronto.
In practice no distinction is made between employees of the Respondent Cityhome and employees of the Respondent City. Cityhome employees are supervised by City employees who are members of C.U.P.E. Local 79. City home employees are paid by cheque issued by the Respondent City. The said employees have recently had issued to them parkas with the words "City of Toronto" on them. The Property Managers, who supervise the employees of Cityhome, are paid by the Respondent City.
The Applicant has requested that negotiations concerning employees of the Respondent Cityhome be conducted between the Applicant and the Respondent City. The Respondents have refused this request.
In effect, the union which holds separate bargaining rights for the outside workers of The City of Toronto and for the caretakers employed by Cityhome, is now seeking by an application under section 1(4) of the Act to gain at the Board what it could not gain at the bargaining table and what it did not seek through a section 1(4) application which it might have made some years ago. The application calls into question the fundamental purpose of section 1(4) of the Act, which 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 or trade unions concerned, treat the corporations, individuals, firms, syndicate 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.
Section 1(4) of the Act was intended to protect established bargaining rights. Before it was enacted employers could by the establishment of separate corporate entities and businesses escape their bargaining obligations and erode the established bargaining rights of unions. (Report qf the Royal Commission of Labour Management Relations in the Construction Industry, 1962 (The Goldenberg Report)). The Legislature enacted section 1(4) to protect against that outcome, giving the Board the discretionary power to treat related businesses as one for the purposes of collective bargaining. (The Labour Relations Amendment Act, 1970, (No.2), S.O. 1970 c. 85 s. 2(6). The section was not conceived as a provision by which the Board could effect the consolidation of established bargaining units. The consolidation power constitutes a significant instrument in the scheme and balance of any collective bargaining system. In our view it should not lightly be implied from a section with an obviously different purpose. Given the history of the Act and the expectations of the labour relations community of this province it would require clear language in the Act to confer such a power. Where the Legislature has considered that the Board should have the power to restructure bargaining units it has granted that authority expressly. The authority of this Board, for example, to restructure bargaining units where there has been the sale of a business, is clearly and expressly conferred in section 63 of the Act. Similarly, when bargaining units were consolidated in the construction industry to permit province-wide bargaining by trade the consolidation was effected by the enactment of specific legislation (The Labour Relations Amendment Act, 1977, S.O. 1977 c. 31).
The union submits that the facts of this case fit the language of section 1(4) and that a more comprehensive bargaining structure would advance industrial relations purposes. It therefore urges the Board to be imaginative in the application of section 1(4) and to effectively order the merger of the two bargaining units for collective bargaining purposes.
While imagination has its value, so do consistency and fairness. The reality of collective bargaining expectations under the Act, and the expectation of the employer in this case, is that the bargaining unit struck during the certification process is the unit which, absent some other agreement, both the employer and the union have to live with for better or for worse. With that in mind the parties come to the certification proceedings prepared to marshall their evidence and arguments on the structure of the appropriate unit. Once the unit is settled, whether by the Board's decision or on the agreement of the parties, both union and employer are entitled to plan and administer their collective bargaining affairs on the basis of the bargaining unit established. While the Board has the power to reconsider its decision as to the composition of a bargaining unit while the certificate is outstanding and before a collective agreement is entered into, it would do so only for compelling reasons. It might, for example, reconsider where one party wishes to advance new evidence or argument which, by the exercise of due diligence, were not previously available to it.
The different approaches of the B.C. and Canada boards can be justified on institutional and historical considerations that do not apply in Ontario. Because certificates in the federal jurisdiction originally listed the categories of employees included in a bargaining unit rather than describe the unit as "all employees save and except.. .", there was no scope for natural accretion. As new job classifications became established it was necessary to update the certificate accordingly. In British Columbia, on the other hand, the jurisdiction to rationalize existing bargaining units stands on the legislative underpinning of that Board's jurisdiction to establish councils of trade unions. Section 57 of the B. C. Labour Code gives the B.C. Labour Relations Board express authority to consolidate bargaining units, whether or not they are held by the same union and to establish a council of trade unions as bargaining agent for a consolidated unit. An integral part of the B.C. Board's consolidation power is the express legislative authority to amend, extend, nullify or establish, in whole or in part, the terms of collective agreements as required in the circumstances. Those are powers which this Board does not have. We do not see, moreover, how such powers can be implied from the Board's reconsideration power in light of the decision of the Supreme Court of Canada, unanimous on this point, that a Board certificate is spent once a collective agreement is entered into. (See, Terra Nova Motor Inn Ltd. Supra).
Apart from these legal and policy considerations, what are the equities of the case? In this case it was open to Local 43 to bring an application under section 1(4) of the Act when Cityhome was established in 1974, or at any time subsequent. It appears however, that the employees of Cityhome were left unrepresented from 1974 to 1981 while the union and the City discussed the issue off and on for seven years. The union also submits that delay was further occasioned by a change in the executive of the Local. We do not find that these are compelling reasons to excuse the union's delay.
In essence the union, now having become the assignee of a Board certificate from C.U.P.E.'s national union is asking the Board to reconsider the certificate and merge the bargaining unit into something quite different from the unit that emerged from the certification process. It is plain that it doesn't do so to protect its bargaining rights, but to augment its bargaining power in a way that it has been unable to do at the bargaining table. To grant the application would doubtedlessly have the practical effect of automatically making the City contract the floor for negotiations involving the Cityhome employees. It is not clear to us why the Cityhome unit now, in effect, should be conferred by a section 1(4) declaration, all of the collective bargaining gains made over years of collective bargaining by the City employees. While it may gain that position by the exercise of its own bargaining power and its rights under the Act, we do not see why it should necessarily do so by fiat of this Board on a technical, ex post facto application of section 1(4).
It was at all times open for both Local 43 and the C.U.P.E. national to structure their applications and transactions in accordance with the Act and the Board's rules and principles. It was equally open to the employer to reply to such applications as were made, and to gear its collective bargaining expectations and responses accordingly. In our view to exercise our discretion to issue a section 1(4) declaration in the fortuitous circumstances of this case would not only go beyond the purpose of the section, but would work a procedural and substantive prejudice to the employer.
For the foregoing reasons the application is dismissed.