Ontario Labour Relations Board
[1986] OLRB Rep. January 2
1672-85-R Allan Berdan et al, Applicants, v. Canadian Brotherhood Railway, Transport and General Workers, Respondent, v. Bill Thompson Transport Limited, Intervener.
BEFORE: Thomas S. Kuttner, Vice-Chairman, and Board Members F. Burnet and C. A. Ballentine.
APPEARANCES: Cindy Watson for the applicants; no one for the respondent; C. F. Humphrey for the intervener.
DECISION OF THE BOARD; January 10, 1986
The name of the respondent herein is amended to read: "Canadian Brotherhood Railway, Transport and General Workers".
This is an application brought pursuant to the provisions of section 57(2) of the Act for a declaration that the respondent no longer represents the employees in the bargaining unit for which it is the bargaining agent. At the hearing of this matter, after entertaining the submissions of counsel on the question, the Board declared orally, for reasons to follow, that it lacked jurisdiction to consider this application given the nature and character of the employer's enterprise. On the evidence it is an undertaking "connecting the Province with any other or other of the Provinces, or extending beyond the Limits of the Province", and hence one with respect to which exclusive legislative jurisdiction has been conferred upon the federal Parliament by the combined operation of section 92(10)(a) and section 9 1(29) of the Constitution Act, 1867. The reasons for the Board's determination are herein included.
As always, with such questions of jurisdiction, the outcome must be determined by the application of the relevant legal and constitutional principles to what both Labour Boards and Courts sometimes term the "constitutional facts" underlying the dispute. See Re Ottawa Carleton Regional Transit Commission and Amalgamated Transit Union, Local 279 et al (1984) 1983 CanLII 1936 (ON CA), 44 O.R. (2d) 560 (C.A.). As to the fundamental legal and constitutional principles governing, these may be simply and briefly stated. First, that exclusive provincial competence over labour relations is the rule, these being but an aspect of property and civil rights reserved to the provincial Legislatures by section 92(13) of the Constitution Act, 1867; second, that Parliament may nevertheless exercise exclusive jurisdiction over labour relations where such jurisdiction is an integral part of its primary competence over another subject reserved to it by the Constitution Act, 1867; third, that where it is shown that the regulation of labour relations is an integral part of the operation of an undertaking service or a business which itself is a federal one, then these are removed from provincial jurisdiction and rendered immune from the effect of provincial law; fourth, that the federal status of an undertaking service or a business depends on the nature of its operation; and fifth, that regard must be had to the normal or habitual activities of the undertaking, service or business rather than to exceptional or casual factors, in order to determine the nature of the operation. See the articulation by Mr. Justice Beetz of these fundamental principles together with references to the relevant authorities in Montcalm Construction Inc. v. Minimum Wage Commission et al (1978) 1978 CanLII 18 (SCC), 93 D.L.R. (3d) 641 at pp. 652-3; [1979] 1 5CR. 754 at pp. 768-9.
What are the constitutional facts here established to which the above enumerated principles are to be applied? They are somewhat minimal, although sufficient for our purposes, and this because of the manner in which the issue was raised and put before the Board. First it should be noted that the respondent chose not to enter an appearance or participate in these proceedings. Rather, it was content to advise the Board by letter dated October 30, 1985 under the hand of its representative, R. J. Stevens, that having reviewed a letter forwarded earlier to the Board by counsel for the intervener and dated October 22, 1985 in which it was submitted that the Board had no jurisdiction to deal with this matter, the respondent was of the view that the representations there made "are to our knowledge correct for the most part" and further, that the respondent "does not oppose the argument which is presented in that letter". There, it was baldly submitted first that the respondent "is a federal work and undertaking", and second, that the employees affected by this application "are employed in the federal work and undertaking".
Moreover, counsel for the applicant concurred in the elaboration of constitutional facts given by counsel for the intervener in support of his submission that the Board lacked jurisdiction to entertain this application. Indeed, she declined to make any representation whatsoever on that submission, being content to allow the Board to make its determination on the basis of the constitutional facts as so presented and on the argument contesting jurisdiction as made. In these circumstances, the Board is inclined to consider the matter before it as one based on an agreed statement of fact upon which a ruling is sought. There can, of course, be neither conferral nor denial of jurisdiction in the constitutional sense by consent of the parties, and as close as the circumstances of this case approach a common consensus of the parties on the issue of jurisdiction, it is nevertheless incumbent upon the Board to make a determination on the basis of the facts before it.
The intervener, formerly known as "Thompson Transport Limited", is a trucking company engaged in the haulage of general freight and auto parts in both the domestic and international markets. Approximately 70% of the business of Bill Thompson Transport consists of the continuous and regular haulage of such goods to and from points situate in the United States. Prior to December 1982, the business of Bill Thompson Transport was limited exclusively to the haulage of goods on the domestic market, (although it is not clear whether solely to and from points within the province of Ontario), such business which it had on the international market being contracted out to other trucking firms. However, in that month, with the issuance by Transport Canada to the respondent of a licence to haul goods on the international market, it commenced to carry on this business itself, and as noted, continues to do so on a regular basis.
These facts may be sparse in detail but they are sufficient for us to conclude that beyond doubt Bill Thompson Transport is carrying on a single and unified truck hauling business which constitutes an undertaking "extending beyond the Limits of the Province". The combined effects of section 92(lO)(a) and 9 1(29) of the Constitution Act, 1867 dictate that that undertaking falls within the exclusive legislative jurisdiction of the federal Parliament. Hence employees engaged in the undertaking are subject not to our Act but rather to the Canada Labour Code, R.S.C. 1970, c. L-l. See R. v. Toronto Magistrates, ex p. Tank Truck Transport Ltd., 1960 CanLII 120 (ON HCJ), [1960] O.R. 497, 25 D.L.R. (2d) 161, aff'd. 1963 CanLII 46 (SCC), [1963] 1 OR. 272; and R. v. Cooksville Magistrate's Court, ex p. Liquid Cargo Lines Ltd. 1964 CanLII 162 (ON HCJ), [1965] 1 O.R. 84, 46 D.L.R. (2d) 700. It follows that the regulation of the labour relations between Bill Thompson Transport and its employees engaged in the undertaking are subject not to our Act but rather to the Canada Labour Code, R.S.C. 1970, c. L-1. Indeed this is the view taken by the Canada Labour Relations Board which, as counsel has advised, sometime subsequent to the granting to the company of a licence to haul goods on the international market in December 1982, issued a certificate to the Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers for a unit of driver/operators employed by the company.
That unit however is not the unit which is the subject of these proceedings. Rather, we are dealing with a unit of persons engaged as maintenance employees of Bill Thompson Transport who work out of its enterprise in St. Thomas. With respect to these employees, the Board did issue a certificate on October 5, 1983 to the Canadian Transportation Workers Union No. 188, National Council of Canadian Labour, (Board File No. 1343-83-R). It is important to note here that that was a 'waiver application', the parties having waived their right to a formal hearing of the matter and the Board issuing its certificate on the basis of the written materials filed. The constitutional issue was neither raised nor considered by the Board in that matter. Shortly after the issuance of that certificate, the parties entered into a collective agreement with an expiry date of October 31, 1985. It is common ground between the parties that the Canadian Brotherhood Railway, Transport and General Workers is, by reason of an amalgamation, the successor trade union to the Canadian Transportation Workers Union No. 188 National Council of Canadian Labour and possesses all the rights, privilege and duties of Local 188 both under the Act and the agreement.
The Board wishes to stress at this juncture that this is the first time that the issue of its jurisdiction in a constitutional sense to entertain applications with respect to Bill Thompson Transport has arisen. The application before us is one for the termination of bargaining rights first granted by a certificate issued by the Board in earlier proceedings and now rooted in the above-noted collective agreement. The narrow issue is whether or not the Board has jurisdiction in the constitutional sense to entertain this application and this application alone. We wish to underscore that this panel of the Board cannot in these proceedings consider in any way the question of the constitutional propriety of the issuance of that certificate in those earlier proceedings. The issue is one of some complexity, particularly given the doctrine of merger of the bargaining rights granted by a certificate into those which flow from a collective agreement subsequently entered into. Be that as it may, the entire matter of the constitutional validity of the certificate issued should more properly be brought before the Board on an application for reconsideration under section 106(1) of the Act. In a similar vein, the issue of whether the Minister had authority to appoint a conciliation officer as he did at the request of the respondent on September 20, 1985 is not one which can be here determined. Any question with respect to the authority of the Minister to make such an appointment can only be determined by way of a section 107(1) reference. Thus the Board limits itself here to the narrow question put, namely whether it has the constitutional jurisdiction to entertain this application for termination of bargaining rights.
This case bears an amazing resemblance to that before the British Columbia Labour Relations Board in Arrow Transfer Company Ltd. et al, 74 CLLC 16,130. That was an application for reconsideration brought on by the employer in which it sought cancellation of a certificate previously issued by the Board to the Canadian Association of Industrial, Mechanical and Allied Workers, Local 1. There too a determination was made that the trucking operation was a federal undertaking and hence subject generally to exclusive legislative jurisdiction of Parliament. There too the unit in dispute was one comprised of maintenance employees engaged in the repair and maintenance of trucks and trailers operated by the employer, as is the case here. As the chairman of the Board there noted, notwithstanding the general finding that the business or operation in question is a federal undertaking, it remains to be determined whether the particular operation in which the employees are engaged is so integrated within the general undertaking as to share its constitutional character. See Reference Re Industrial Relations And Disputes Investigation (Eastern Canada Stevedoring Company) 1955 CanLII 1 (SCC), [1965] S.C.R. 529, [1955] 3 D.L.R. 721; Letter Carriers Union of Canada v. CUPW et al 1973 CanLII 183 (SCC), [1975] 1 S.C.R. 178, (1973) 40 D.L.R. (3d) 105.
Using that approach, we note here first that these are employees of Bill Thompson Transport who provide maintenance and repair services for trucks and trailers of the company engaged in the haulage of goods on the international market. This is the only maintenance and repair work in which these persons are engaged. Their services are not, for example, made available to members of the public at large. Rather, their entire work day consists in ensuring that the fleet of trucks and trailers which Bill Thompson Transport operates in its undertaking are mechanically fit and safe for road service. It is evident that the maintenance work engaged in by these employees of Bill Thompson Transport is an integral and vital part of its operation as a federal undertaking. It follows then that the labour relations of these maintenance employees must be subject to the provisions of the governing federal legislation, the Canada Labour Code, as is the case of the driver/operators employed by Bill Thompson Transport. See, in general, the Arrow Transfer case, supra, at p. 1079f.
Accordingly, the Board finds that it has no jurisdiction to entertain this application for termination of bargaining rights and it so declares.