The Canadian Union of Public Employees and its Local 504 (Peterborough Civic Employees Union) v. The Corporation of the City of Peterborough

[1984] OLRB Rep. December 1752

1180-84-R The Canadian Union of Public Employees and its Local 504 (Peterborough Civic Employees Union), Applicant, v. The Corporation of the City of Peterborough, Respondent, v. Amalgamated Transit Union, Division 1320, Intervener

BEFORE: R. A. Furness, Vice-Chairman, and Board Members L. Collins and A. Grant.

APPEARANCES: S. R. Hennessy, Doug W Packman and Mike Ray for the applicant; Richard Taylor and Murray Hynes for the respondent; H. M. Pollit, R. Renaud, Neil McMahon, Angus MacFarlane and Gerald Longhurst for the intervener.

DECISION OF THE BOARD; December 10, 1984

1. The applicant has applied to the Board under section 63 of the Labour Relations Act with respect to the bargaining rights of the intervener as a result of a sale of a business by Border Transit Ltd. ("Border") to the respondent which took place on or about December 30, 1978.

2. The applicant has requested (a) a declaration that since the disposition of the original hearings of this matter by the Board there has now been sufficient intermingling of employees to bring section 63(6) into operation, (b) a declaration that the applicant is the bargaining agent for all mechanics, bodymen, greasers, cleaners, workers and servicemen employed in the public transit service and presently represented by the intervener and (c) an amendment to the certificate of the intervener to exclude "employees who are mechanics, bodymen, greasers, cleaners, workers and servicemen employed in the public transit service and represented by the intervener and the amendment of Canadian Union of Public Employees and its Local 504's certificate to include these employees.

3. In its reply the respondent adopted the position that the applicant was not entitled to the relief claimed without a vote being ordered pursuant to section 63. The intervener opposed this application and argued that the Board did not have jurisdiction to entertain this application. It was the view of the intervener that the application could be made under section 63 only as long as the parties were operating under a collective agreement with the predecessor employer.

4. In order to understand the facts of the instant application, it is necessary to outline the events and applications before this Board which have preceded the instant application. Before December 30, 1978, the public transit system in the City of Peterborough was operated on a franchise basis by a privately owned company by the name of Border Transit Ltd. ("Border"). The respondent, for reasons which are not here material, decided and enacted that it would operate the public transit system from and after December 30, 1978, and that for that purpose it would purchase the facilities and equipment of Border. After considering the evidence and representations before it, the Board concluded that there had been a transfer or disposition amounting to the sale of a business within the meaning of section 55 [now section 63]. See City of Peterborough, [1979] OLRB Rep. Feb. 133. At the time of the transfer or disposition, the applicant held the bargaining rights for all service and maintenance employees as well as all office and clerical employees of the respondent through collective agreements with the applicant and its sister Local 126, respectively. The office employees of Border who were not represented for collective bargaining purposes prior to the transfer or disposition of the business became an accretion to the bargaining unit of office personnel employed by the respondent. The applicant represented among others all drivers, mechanics and cleaners employed by the respondent and asserted a similar claim with respect to the drivers, mechanics and cleaners formerly employed by Border who were represented in collective bargaining by the intervener. The intervener claimed to continue to represent these former employees of Border by the operation of section 55(2) and (3) [now section 63(2) and (3)] of the Act.

5. The Board determined in City of Peterborough, supra, that at the time of the hearing the two groups of employees concerned in that case had not been merged to any extent and that the employees continued to work at separate jobs with separate equipment at separate locations just as they had prior to the transfer of the business. The Board stated that there had not been any intermingling of employees that would trigger the operation of section 55(6) [now section 63(6)] of the Act. At pages 136 and 137 the Board stated:

14. A particular concern in the determination of bargaining units under section 55 of The Labour Relations Act is that existing bargaining structures not lightly be interfered with. The Board recognizes the value of a bargaining unit that has developed through a succession of collective agreements. A bargaining structure with some substantial history to it often indicates a sound bargaining relationship. More often than not it has evolved through increased communication and has come to reflect a workable pattern of mutual expectations between union and employer. Since the promotion of sound collective bargaining relationships is what the Labour Relations Act is all about, the Board is understandably reluctant to dismantle a bargaining structure that has withstood the test of time.

15. In this case the evidence establishes that the drivers, mechanics and cleaners employed in the transportation service work in locations separate from the other employees of the City. They have a history of working together and bargaining together through the applicant. They share a separate community of interest from other City employees having regard both to the nature and the location of their work and to the cadre of immediate supervisors under whom they function. The employees in question are presently constituted as a sound and viable bargaining unit and there is no reason to believe that the continuation of the bargaining rights that they enjoy will unduly hamper the employer's operations. In these circumstances the Board sees no useful labour relations purpose to be served by destroying that bargaining unit in whole or in part. The Board therefore finds that the bargaining rights of the applicant should be preserved and that the scope of the bargaining unit of transit employees should continue as it was constituted under Border Transit Limited.

That decision was released on February 13, 1979.

6. In The Corporation of the City of Peterborough (Board File No. 053 1-80-R, decision dated September 5, 1980), the applicant made an application under section 55(6) of the Act [now section 63(6)]. The applicant argued that since the earlier disposition there had been an intermingling of employees such as to bring into play section 55(6) [now section 63(6)]. The applicant argued that there had been an intermingling of employees since the previous decision. The intervener argued that this was a matter which had been raised before the previous panel of the Board and should therefore be dismissed. The Board reserved its decision on whether an application under section 55(6) [now section 63(6)] was appropriate until it heard the evidence and the representations of the parties on the extent of the intermingling. The parties submitted the following agreed statement of fact:

There are seven people in the intervener's bargaining unit which have been currently intermingled with employees represented by the applicant. There are three washers from the ATU which wash buses in a location other than the main work area. In addition, three or more labourers from CUPE also wash buses and other equipment. One CUPE member has been retrained to relieve the three ATU washers which work on a five-day schedule at the bus barn, if an ATU man is absent. The week-end shift is apparently all CUPE members who wash buses or any other vehicle, this shift consists of four employees. There is one greaser from the ATU and one greaser from CUPE, they both work at the same location and work on any and all vehicles. There are five CUPE mechanics and three ATU mechanics, these apparently work at the same location and they work on all vehicles. There are forty-three full-time drivers at the transit local, and six part-time drivers driving the buses. There are one hundred and fifty drivers represented by the CUPE local who drive trucks and cars. Apparently, there are about six CUPE drivers which transport buses but they are not regular bus drivers. The bus storage barn is used from Monday to Friday, but only for the purposes of washing vehicles. The public vehicle garage is where all the servicing is done and the week-end washing. The intermingling, apparently, involved a move of the servicing to the public vehicle garage, that occurred sometime in April or May of 1979. The greasing operations were also moved at that time. Apparently, the bus operators work open schedules set for a three-month period. Further, the ATU mechanics tend to work a mid-night shift. Apparently, there are two mechanics on the night shift from the ATU, whereas, no CUPE members work the night shift since this is not provided for in the CUPE collective agreement. On the other hand, the ATU agreement provides for no washers on the week-end.

7. The Board held that on the basis of the agreed statement it was difficult to see that there had been any great degree of intermingling of the employees involved. The Board concluded that there had not been sufficient intermingling to bring into play section 5 5(6) [now section 63(6)]. The application was dismissed.

8. The instant application was filed on August 3, 1984, some five and a half years after the transfer or disposition has occurred. Are the provisions of section 63(6) to be applied in the circumstances of this application?

9. Section 63(6) states:

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 mployees 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.

[emphasis added]

Section 63(2) and (3) states:

(2)Where an employer who is bound by or is a party to a collective agreement with a trade union or council of trade unions sells his business, the person to whom the business has been sold is, until the Board otherwise declares, bound by the collective agreement as if he had been a party thereto and, where an employer sells his business while an application for certification or termination of bargaining rights to which he is a party is before the Board, the person to whom the business has been sold is, until the Board otherwise declares, the employer for the purposes of the application as if he were named as the employer in the application.

(3)Where an employer on behalf of whose employees a trade union or council of trade unions, as the case may be, has been certified as bargaining agent or has given or is entitled to give notice under section 14 or 53, sells his business, the trade union, or council of trade unions continues, until the Board otherwise declares, to be the bargaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business, and the trade union or council of trade unions is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement or the renewal, with or without modifications, of the agreement then in operation and such notice has the same effect as a notice under section 14 or 53, as the case requires.

[emphasis added]

The Board does not have a general power to alter certificates or collective agreements. It has, however, specific powers to alter certificates or collective agreements under section 63(6) in connection with a sale of a business and under section 91(15),(16) and (18) arising from a jurisdictional dispute.

10. In our opinion, an order under section 63(6) should be limited to circumstances where the exercise of management rights pursuant to a sale results in an intermingling so thorough or so sudden that it is impractical to resolve the resulting representational problems by means of collective bargaining. If the impracticality of collective bargaining to resolve representational problems arising out of a sale is the main criterion for an order under section 63(6), an applicant must show that there has been a significant degree of intermingling which has given rise to representational problems and that the intermingling is closely related in time to the fact of the sale. The more time that passes between a sale and an intermingling, the more difficult it is for any party to claim that the accommodation of competing interests could not have been implemented on a negotiated basis. Where a trade union is making an application under section 63(6), the more time which passes before an intermingling, the more does an application under that section resemble an attempt to sweep in or an application for displacement. The intervener s bargaining rights should not be subjected indefinitely to the danger of an application under section 63(6). Beyond a certain point in time, an incumbent union is entitled to expect that its bargaining rights may be altered only by termination or displacement, a jurisdictional dispute or the process of collective bargaining itself.

11. The Board has considered the question of the lapse of time between the sale of a business and the making of an application which invokes the provisions of section 63(6). In Lake of the Woods District Hospital, [1968] OLRB Rep. July 399, two hospitals were amalgamated by a private act of the Legislature and their operations were taken over by a successor corporation created for that purpose. The applicant sought and received a declaration of successor rights as "sale of a business" had occurred. The Board refused to grant an application under section 47a(5) [now section 63(6)] because there had been no intermingling with employees of the two predecessor hospitals. The Board observed that an application under section 47a(5) [now section 63(6)] might be available at a future date. At page 401 the Board stated:

11. It was pointed out to the parties at the hearing of this application that subsection 5 of section 47a was not limited in its application to a situation immediately following a sale of a business. In other words, that subsection contemplates that an intermingling may take place some time after such a sale in which case an application could be made to the Board

There will be cases where an intermingling does not follow immediately upon a sale, yet an order under section 63(6) remains appropriate for dealing with the resulting representational problems. For example, in Avondale Dairy Limited, [1971] OLRB Rep. Dec. 781, the applicant Dairy purchased a competitor's depot and continued to employ its employees. Some three months after the sale, the applicant closed down one of its nearby depots and transferred the employees there to the newly purchased facility. The Board granted the application under section 55(6) [now section 63(6)] and ordered a representation vote at the new facility. The Board stated at page 783:

Although there has been a three month delay in implementing the transfer of operations to Crystal Beach following its purchase, we are satisfied, having regard to the evidence.. .that such action was prompted by bonafide economic considerations.

12. Avondale Dairy Limited indicates that a successor employer can make an application under section 63(6) where it has delayed for bonafide economic reasons an intermingling that is nevertheless a direct and intended consequence of the sale. It appeared that the intermingling, once undertaken, was swift and complete and that collective bargaining was not a suitable way in dealing with the situation even though negotiations for a new collective agreement at the plant were underway at the time. In The Bryant Press Limited case, [1972] OLRB Rep. April 301, the applicant employer purchased a competitor's printing business. One month after the sale, the intermingling of employees commenced and the greater portion of the intermingling occurred between six to eight months after the sale. The successor employer applied for a declaration under section 55(6) [now section 63(6)] approximately eleven months after the sale. The application was granted and the Board stated at page 304:

we see no reason to decline to make a declaration under the subsection because Bryant waited until ten months after the intermingling commenced to make its application. In this regard we would point out that the intermingling largely took place in the fall of 1971 and was only completed by November 1st in that year. Moreover, the respondent cannot claim that its position has been prejudiced as it was aware of the intermingling from the time that it began and could have brought an application at any time after, or for that matter before, the intermingling commenced, for a declaration as to the bargaining rights which it had acquired as a result of the sale under its collective agreement.

13. The Board notes that The Bryant Press Limited case represents the longest period of time after a sale (eleven months) that the Board has entertained an application under section 63(6) or its predecessors. However, The Bryant Press Limited case is not precisely on point with the present application because the beginning of the intermingling process was separated from the sale by only one month. The intermingling process itself consumed some time, but there seems to have been no argument that the intermingling was not a direct and intended result of the sale. The trade union's argument in The Bryant Press Limited case was really similar to an argument of latches, and the Board treated it as such by focusing on whether there had been any prejudice to the trade union. In Silverwood Dairies, Division of Silverwood Industries Limited, [1980] OLRB Rep. Oct. 1526, the Board granted an application under section 55(6) [now section 63(6)] and ordered a representation vote where the intermingling of employees had occurred four months after the sale. The Board followed the decisions in Avondale Dairy Limited and The Bryant Press Limited cases, and entertained the application. The longest period after a sale that a successful application has been made is eleven months, and the longest period between a sale and the intermingling that gave rise to a successful application has been either four months as in Silverwood Dairies, Division of Silverwood Industries Limited, or six months (the time at which a significant degree of intermingling took place in The Bryant Press Limited case). The Board was not referred to any authorities where an application under section 63(6) had been granted where a significant intermingling occurred some five and a half years after the sale.

14. The Board does not intend to set specific limits on the lapse of time in applications which are made under section 63(6). The time limit should be allowed to vary with the circumstances of the case. Factors which may be considered in assessing the appropriateness of granting relief under section 63(6) may include; a) whether the intermingling was a direct and intended consequence of the sale; b) whether the intermingling was so significant as to raise representational problems not likely to be resolved by collective bargaining; c) whether the intermingling process occurred before the collective bargaining process could be invoked to deal with the matter; and d) whether the circumstances raised the suspicion that the application is a disguise for an application for displacement or a sweep-in. The respondent has concluded at least one collective agreement with the applicant and the intervener since the "sale" to it by Border. Section 63(6) is a remedial section designed to deal with representational problems incapable of resolution by collective bargaining and the fact that collective bargaining has taken place between the sale and the application and collective agreements have been entered into indicates that the problems that section 63(6) is designed to deal with have been addressed or have not arisen in the context of a "sale". In our view, contentious issues should be resolved where possible through collective bargaining. Section 63(6)(a) enables the Board to declare "that the person to whom the business was sold is no longer bound by the collective agreement referred to in section 63(2) [i.e. the collective agreement between a vendor and a trade union in force at the time of the sale]". In Canadian General Electric Company Limited, [1978] OLRB Rep. June 501, the Board made the following observation where a declaration was sought under section 55(6) [now section 63(6)] after a collective agreement was concluded between the successor employer and the trade union that had dealt with its predecessor at page 506:

Even if the Board were able to draw a conclusion that there was a sufficient degree of intermingling for it to exercise its discretion under subsection (6), it is quite clear that a declaration under paragraph (a) would be inappropriate since the agreements contemplated by subsection (2) have now been replaced by the agreements entered into by the applicant. Given the inapplicability of paragraph (a), the Board has serious doubts as to whether any of the other provisions of subsection (6)are applicable to this situation.

15. If the observation in Canadian General Electric Company Limited is followed, all of section 63(6) becomes inoperative once a collective agreement is signed between the successor employer and the predecessor employer's trade union. A problem, however, is raised by the wording of section 63(6)(d), which allows the Board to "amend, to such extent as the Board considers necessary, any collective agreement". Do the words "any collective agreement" contemplate an amendment under section 63(6) being made to a collective agreement concluded after the sale? In our view, the words "any collective agreement" permit the Board to redefine the existing collective agreement of all or any trade unions drawn into a representational conflict by the sale of a business. This is by contrast to section 63(6)(a), which allows the Board to declare unenforceable an entire collective agreement only where the collective agreement in question is the particular one binding the predecessor employer. As the Canadian General Electric Company Limited case reasons, from time to time such a collective agreement is entered into, any representational problems arise from the various collective agreements rather than from the fact of the sale. Section 63(6) does not contemplate the exercise of interpreting the scope clause of one or more collective agreements; such task is properly left to grievance arbitration or to a jurisdictional dispute proceeding.

16. In the present case, the representational problem brought before the Board appear to be derived entirely from the collective agreements. The question comes down to an interpretation of one or both collective agreements. If the present collective agreements conflict or contain ambiguities, the problem must be settled by grievance arbitration or a jurisdictional dispute proceeding. It is unreasonable to trace any problem back to the "sale" after a lapse of five and a half years. The applicant has argued that the Board should make a declaration under section 63(6) because, among other reasons, jurisdictional dispute proceedings are not appropriate to cure a "representational problem" where there is no conflict between bargaining units on the face of the collective agreements which are involved. The jurisdictional dispute procedure is an appropriate way of dealing with the matter. Contrary to the position of the applicant, the case of Camco Inc., [1982] OLRB Rep. July 987, does not bar a jurisdictional dispute proceeding to deal with a "representational problem". Camco Inc. states at page 992 that section 91(18) is a charging section giving the Board power to alter bargaining unit descriptions in a collective agreement independent of the requirement of a work assignment set out in section 9 1(1). The Board also stated that section 9 1(18) is "designed primarily to promote [a] forum for the settlement of representational disputes arising out of collective bargaining unit descriptions in the 'industrial type' collective agreement". This is not the situation here. As for the objection that there is no conflict here between the applicant's and the intervener's collective agreements on their faces, nothing in section 91(18) limits the Board's jurisdiction to cases where collective agreements conflict on their face.

17. Having regard to the foregoing considerations, the Board finds no reason to exercise its discretion under the provisions of section 63(6) of the Act. This application is dismissed.