[1986] OLRB Rep. September 1216

2639-85-R Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 880, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. 608379 Ontario Inc. o/a Fleetwide, Respondent

BEFORE: Ian C. Springate, Alternate Chairman, and Board Members R. W. Pirrie and P. V. Grasso.

APPEARANCES: Frank Luce, Jim O'Donnell, Phil Geoffroy and Lloyd Padley for the applicant; George W. King and David Chisolm for the respondent.

DECISION OF THE BOARD; September 19, 1986

1. This is an application for certification.

2. The respondent challenges this Board's jurisdiction over industrial relations matters involving its employees. The respondent contends that it is carrying on a trucking operation that extends beyond the boundaries of the Province of Ontario, and that therefore legislative jurisdic­tion relating to its employees rests with the Government of Canada.

3. The respondent was incorporated in April 1985. Its shares are held by two individuals, namely David Chisolm and Patricia Spendlove. It is not a licensed common corner. Mr. Chisolm had been part-owner of a licensed common carrier which ran into financial difficulties in 1981. These financial difficulties resulted in the liquidation of the common carrier and Mr. Chisolm's personal bankruptcy. These factors may account, at least in part, for the manner in which the res­pondent carries on operations.

4. Although the respondent is not a licensed carrier, it hauls goods for Fleetwood Metal Industries ("Fleetwood"). The respondent does not haul for any other customer. Fleetwood is an auto parts manufacturer located in Tilbury, Ontario. The respondent hauls some raw materials to Fleetwood's plant, but most of its operations involve transporting parts manufactured by Fleet-wood to various automobile manufacturers. Most of this product is transported to locations within Ontario, although approximately one-third of all deliveries are to locations outside the province. Extra-provincial deliveries are generally to locations in the State of Michigan, although some deliv­eries are also made to locations in Ohio, New York and the Province of Quebec.

5. The respondent commenced operations in Windsor. However, when Fleetwood expressed a desire that the company move to Tilbury, the respondent moved its operations onto the respondent's premises in Tilbury.

6. The respondent employs two dispatchers and a number of drivers. It utilizes four vehicles leased from Ryder Truck Rental. The vehicles are actually leased by Fleetwood and bear the Fleetwood name. When crossing the international border, the respondent's drivers present themselves as Fleetwood employees. Presumably they do so because the respondent is not a licensed carrier and because Fleetwood does not require a license to haul its own products.

7. It is now established law that labour relations prima facie fall within the legislative com­petence of the province as being part of provincial jurisdiction over property and civil rights. See: Toronto Electric Commissioners v. Snider, [1925] 2 D.L.R. 5 (P.C.). However, the labour relations relating to any federal work, undertaking or business come within the exclusive jurisdiction of the Federal Government. Reference re Validity of Industrial Relations and Disputes investigation Act, [1955] 3 D.L.R. 721 (S.C.C.). Section 92(10)(a) of The Constitution Act 1867 (formerly The British North America Act) provides that the Federal Government has jurisdiction over:

"Lines of Steam or other Ships, Railways, Canals, Telegraphs and other Works or Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the lim­its of the Province."

8. Labour relations matters relating to a common carrier involved in inter-provincial transportation clearly falls under federal jurisdiction. However, different considerations apply where a Company is not a common carrier, but rather is primarily involved in manufacturing and process-hg. When such a company delivers its own product outside the province, it has been held that the delivery operations are an integral part of the total operation and come within provincial jurisdic­tion. See: Win. R. Barnes Co. Ltd., [1967] OLRB Rep. Sept. 566; Catalano Produce Ltd., [1975] OLRB Rep. Oct. 743 and Westburne Industrial Enterprises Ltd., [1984] OLRB Rep. Oct. 1525.

9 This brings us to the peculiar circumstances of the instant case. The respondent itself is n t involved in manufacturing. However, neither is the respondent a licensed carrier. It carries goods only for Fleetwood in trucks leased by Fleetwood and bearing Fleetwood's name. The res­pondent's drivers hold themselves out to the border authorities as drivers for Fleetwood. These considerations lead us to conclude that the respondent is not engaged in an independent interprovincial trucking operation, but rather it serves as the delivery arm of Fleetwood. Its business has no independence or meaning apart from Fleetwood's manufacturing operations. In these circumstances are led to conclude that it is an integrated part of what is essentially a manufacturing concern and accordingly falls within provincial jurisdiction. It follows that this Board does have jurisdiction tq entertain the instant application.

10. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

11. Having regard to the agreement of the parties, the Board finds that all employees of the respondent in Tilbury, Ontario save and except manager, persons above the rank of manager, cler­ical, office and sales staff, and persons regularly employed for not more than 24 hours per week, constitute a unit of employees of the respondent appropriate for collective bargaining.

12. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on February 10, 1986, the terminal date fixed for this appli­cation and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

13. A certificate will issue to the applicant.