International Beverage Dispensers and Bartenders Union, Local 280 v. Metro Investment Corporation
[1985] OLRB Rep. May 703
3028-84-R International Beverage Dispensers and Bartenders Union, Local 280, Applicant, v. Metro Investment Corporation, Respondent
BEFORE: Rory F. Egan, Vice-Chairman, and Board Members R. J. Gallivan and S. 0 'Flynn.
APPEARANCES: Beth Symes for the applicant; A. J. Indovina for the respondent.
DECISION OF THE BOARD; May 14, 1985
1The correct name of the respondent is Metro Investment Corporation and the style of cause is amended accordingly.
2This is an application under section 63 of the Labour Relations Act brought with respect to the bargaining rights of the applicant as a result of a sale of a business by The Last Resort Hotel Inc. to the respondent on or about the 17th day of January, 1985. The applicant seeks a declaration that Metro Investment Corporation is the successor employer to The Last Resort Hotel Inc. and is bound by the collective agreement dated January 15, 1985 made between The Last Resort Hotel Inc. carrying on business as Doyles Tavern and the applicant herein.
3The applicant also submitted a complaint under section 89 of the Labour Relations Act which it sought to have joined to these proceedings. The complaint under section 89 was set aside pending resolution of the application under section 63 for hearing at a date to be set and this panel of the Board is not seized of the matter.
4Anthony Indovina, who represented Metro Investment Corporation, took the position that a sale of a business had not occurred but simply a purchase of all the shares of The Last Resort Hotel Inc. carrying on business as Doyles Tavern by Metro Investment Corporation.
5It was moved by Mr. Indovina that The Last Resort Hotel Inc. still carries on the business at the premises and is the proper respondent in these proceedings which should accordingly be dismissed insofar as Metro Investment Corporation is concerned. The Board reserved its decision on this motion pending the hearing of the evidence respecting the transaction.
6The relevant portions of section 63 of the Act are the following:
63.-(i) In this section,
(a) business includes a part or parts thereof;
(b) sells includes leases, transfers and any other manner of disposition, and sold and sale have corresponding meanings.
(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 i4 or 53, as the case requires.
7Prior to the incidents out of which this application was made, The Last Resort Hotel Inc. carrying on business as Doyles Tavern was owned and operated by John Doyle. He held all the shares in The Last Resort Hotel Inc.
8The evidence is that on or about May 31, 1984, Doyle entered into an option agreement with Metro Investment Corporation for the purchase and sale of all the shares of The Last Resort Hotel Incorporated. On or about January 15, 1985 Mr. Anthony Indovina, who testified he held complete and unrestricted authority to act for Metro Investment Corporation, advised Doyle that he, acting on behalf of Metro Investment Corporation, was exercising the option agreement. The option, Mr. Indovina testified, provided for a 3-day closing period. He said that Metro Investment Corporation obtained all the shares of The Last Resort Hotel Inc. on January 18, 1985. He said that it had been agreed upon by Doyle, the latter's lawyer and Indovina that a working relationship between Indovina and Doyle was not possible and that, as a consequence, Doyle left the premises. He had been given a cheque for $100.00 in accordance with the terms of the option.
9All of the foregoing evidence was corroborated by Doyle. From the time of his leaving the premises on January 18th, he has had nothing to do with the operation of The Last Resort Hotel Inc.
10Mr. Indovina testified that from that day forward he ran the hotel on behalf of Metro Investment Corporation. He had the power to hire and fire employees. He had control of labour relations in the tavern and replied to a grievance filed by an employee.
11The Board finds on the evidence that while all of the shares of The Last Resort Hotel Inc. were transferred to Metro Investment Corporation, and that while the Corporation took full charge of the day-to-day operation and of its employees, no sale of the business has taken place within the meaning of the Labour Relations Act. The transfer of the shares of The Last Resort Hotel Inc. leaves that corporation intact and does not affect the business of the hotel. The taking-over of the management by Metro Investment Corporation is simply a matter which the sole shareholder might have assigned to any other party.
12The application is accordingly dismissed. It should be noted, however, that the bargaining rights of the union are not prejudiced by this outcome of the application and that the collective agreement referred to above between the applicant and The Last Resort Hotel Inc. remains in effect.