Loeb Inc. v. Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 91
[1985] OLRB Rep. May 697
2655-84-R Loeb Inc., Applicant, v. Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 91, Respondent
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. H. Wightman and C. A. Ballentine.
APPEARANCES: Brian P. Smeenk, Richard Laniel, G. Gillespie, P. Best and K. Overall for the applicant; Harold F. Caley, Robert Kelly and Rick Kelly for the respondent; Robert Castiglio and Rino Grondin for the intervener.
DECISION OF THE BOARD (ORALLY); May 30, 1985
1This application arises out of an administrative re-alignment by the applicant employer of its various wholesale operations. The applicant applies under section 63 of the Labour Relations Act to have the Board, in effect, re-define a number of its existing bargaining units, under current collective agreements, as one single bargaining unit, in accordance with its own administrative re-organization, and to cause the parties to negotiate a fresh collective agreement applying to the single enterprise. The applicant also requested the Board, just prior to the hearing, to apply the provisions of either section 91(1) or (18) to reconcile the claims which it says arises under conflicting collective agreements. The matters in dispute, and particularly the question of the respective seniority rights of the various groups of employees affected, is the subject of three policy grievances filed by the respondent trade union, and which have been placed before an arbitrator appointed under section 45 of the Labour Relations Act. The respondent is the only trade union involved in these proceedings, and the issue is which, if any, of its various collective agreements with the applicant now apply to the work being performed in the reorganized division. It is the position of the respondent that the matters at issue are properly the subject matter of arbitration, and ought to be permitted to proceed in that fashion. The applicant argues that an arbitrator would lack the capacity to deal with the matters in dispute, and that only the Labour Board has sufficient powers to deal with the problems at hand.
2The Board is prepared to assume that the provisions of section 63 of the Act can, in appropriate circumstances, apply to transfers within divisions of the same company. The question remains, however, whether on the facts as stated before us, the applicant would be entitled to the extraordinary form of relief which is the basis for launching these proceedings. We agree that this Board and others have been vigilant in protecting and preserving existing collective agreements under the successorship provisions granted by the Act, and the cases cited by the applicant, finding that an employer does not avoid its collective bargaining obligations simply by transferring work from one division or subsidiary to another, stand for no more than that. That is the reason section 63 empowers the Board to continue the application of a collective agreement for the like bargaining unit, simply preserving the status quo, and that is true for each collective agreement said to be affected by a sale. The situation before the Board in this case cannot be dealt with by the Board, nor by one of the parties unilaterally, as if the situation were fresh, and the issue before us now is not what the Board might have considered to be an appropriate bargaining unit for the newly formed Innes Division in an initial certification proceeding. Every existing collective agreement represents negotiated and entrenched rights and obligations on the part of all parties involved, and the Board's jurisdiction to restructure the scope clauses of existing collective agreements, or otherwise affect the entrenched and negotiated rights of the parties, is to be found under the narrower provisions of section 63(6) of the Act. That subsection requires that an intermingling of the two or more operations in question has taken place, and as the Board articulated in, for example, Caressant Care Nursing Home of Canada Limited et al, [19841 OLRB Rep. Aug. 1060 at paragraph 32, the Board for this purpose looks at whether the work or job opportunities themselves have been intermingled in the new form of operation.
3Here it is admitted that the work of the two aspects of the new Innes Division, the Innes Road Warehouse and the L.V. S. Warehouse, remain functionally separate and identifiable. Once that is established, a situation of intermingling, such as to bring into play the operation of subsection 6 of section 63, cannot be said to have taken place simply because the employer decided on its own to proceed to have those separate and distinct jobs performed by employees drawn from various sources. Indeed, the correctness of the employer's decision to staff the Innes Division in that manner is the very issue in dispute in both these and the arbitration proceedings. Within the Innes Road Warehouse, on the other hand, the integration of work from both the Ottawa Grocery Warehouse and the Quebec-based S & S Warehouse could, as applicant counsel has argued, have created a complication to which subsection 6 would apply, had S & S prior to this been operating under an Ontario collective agreement which an interested party is arguing should follow the work, but that is not the case here.
4Counsel for the applicant argues that it would be strange to have the scope of various collective agreements determined by the nature of the work (drivers, office, etc.) or the kinds of products being handled (for example produce versus grocery), but the indisputed facts show clearly that that is precisely how the various collective agreements in question, which are described as applying geographically to the Ottawa area in general, have been understood and applied by the parties in the past, even within a single location. It would not appear that the parties have ever had any difficulty in the past in determining to which aspect of the Loeb operations a particular collective agreement at a particular location applies, and there has been nothing stated to us on the present facts which would suggest that the parties would have any difficulty in doing so in the future.
5In sum, therefore, either the other apparently Ottawa-wide collective agreements (and particularly the grocery agreement) are in fact site-specific and do not apply at the Innes Road location, as the applicant argues as its first position, in which case the applicant has no conflict from which to extricate itself, or the collective agreements apply to the Innes Road location on the same basis (i.e. according to the type of employee or product, as the case may be), as they always have in the past at the various Loeb locations, including Innes Road. The collective agreements themselves, in other words, as applied by the parties in the past, do not contain conflicting scope clauses. On that basis, we would find section 91(18) to be inapplicable as well. We would add that this case does not involve the kind of jurisdictional dispute which would cause us to exercise our discretion under section 91(1) as well.
6We recognize that there are some real and important issues between the parties, in particular as regards the competing seniority claims of the various Loeb employees, but the issues raised by this case are not matters which fall to be determined by the Labour Board. They are issues which should and normally do proceed to arbitration, as the respondent has endeavoured to do in this case. Arbitrators are frequently called upon to determine whether the collective agreement under which they are appointed is applicable to the particular work in dispute, and if so, what is the seniority status of employees transferring or seeking to transfer into the bargaining unit covered by that collective agreement. Both are matters simply of interpreting the relevant language of the collective agreement, together where appropriate with consideration of the past practice between the parties. It would appear that the procedure could be simplified even further by the parties agreeing to have the grievances under the three collective agreements in dispute placed before the same arbitrator for determination, if the parties have not already done so.
7This application before the Board is dismissed.