United Food and Commercial Workers International Union, Locals 175 & 633 v. Steinberg Inc., Miracle Food Mart Division and Oshawa Holdings Limited, c.o.b. as Dutch Boy Foods
[1989] OLRB Rep. October 1066
0082-87-R United Food and Commercial Workers International Union, Locals 175 & 633, Applicant v. Steinberg Inc., Miracle Food Mart Division and Oshawa Holdings Limited, c.o.b. as Dutch Boy Foods, Respondents
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members J. Campbell and J. Sarra.
APPEARANCES: Harold F. Caley and Dennis Sexton for the applicant; D. Brent Labord and John Peardon for Miracle Food Mart, a Division of Steinberg Inc.; E. T. McDermott, A. Burke and G. Joffe for Dutch Boy Food Markets, a Division of Oshawa Holdings Limited.
DECISION OF THE BOARD; October 2, 1989
The names of the respondents are amended to read: "Steinberg Inc., Miracle Food Mart Division and Oshawa Holdings Limited, c.o.b. as Dutch Boy Foods". For ease of reference, the Board will refer to them, respectively, as "Steinberg" and "Dutch Boy", and to the applicant as "the union".
The matters raised by these proceedings came on for hearing before a different panel of the Board. During the early course of the hearings, the parties consented that the panel as constituted herein hear and decide all matters raised by the proceedings.
This application has been made under section 63 of the Labour Relations Act. The section reads in part as follows:
(1) 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.
(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.
(13) Where, on an application under this section, a trade union alleges that the sale of a business has occurred, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.
Both respondents discharged fully their obligations under subsection 13.
The application arises out of the operation of a Dutch Boy store at 720 Westmount Road East in Kitchener, Ontario, in which premises Steinberg had previously operated a retail food supermarket in the name of Miracle Food Mart. The premises are part of the Laurentian Heights Shopping Centre which, at the time when Steinberg operated the premises, was owned by Community Expansion Inc. (hereafter "Community"). Steinberg was the first occupant of the premises and the "anchor" tenant of the shopping centre; that is, the tenant which was expected to draw shoppers to the centre to the benefit of the other tenants. It operated a food supermarket there from April 1980 until June 21, 1986, when the store was closed to the public. Steinberg's employees at the store, excluding assistant store managers and persons above that rank, were covered at all material times by a collective agreement between Steinberg and the union. The agreement in effect when Steinberg closed the store on June 21, 1986, expired on that date. The agreement covered all of Steinberg Inc.'s food supermarkets in Ontario. It was succeeded by another signed on March 10, 1987, to have effect from June 22, 1986 to June 21, 1988. The Steinberg employees were transferred to other Steinberg stores in Ontario, or terminated their employment with Steinberg in accordance with the terms of the collective agreement.
Dutch Boy acquired a lease to the premises and the fixtures and leasehold improvements which had been owned and used by Steinberg in the operation of its supermarket. The union alleges that Dutch Boy's acquisition of a lease and those fixtures and leasehold improvements constitutes a sale within the meaning of section 63 of the Act of Steinberg's business, or a part thereof, to Dutch Boy. Accordingly, the union seeks a declaration to that effect which would make Dutch Boy the successor employer to Steinberg at that location and bind it to the collective agreement between Steinberg and the union, insofar as it applies to the location, as though Dutch Boy were a party to the agreement.
Steinberg and Community were involved in litigation over their lease agreement prior to the closing of the store. The litigation began in September 1983. Steinberg had alleged that Community had failed to execute the lease because it was unable to perform certain conditions of the lease and in March 1983 served notice on Community of its intent to vacate the premises on or after September 30, 1983. Community was successful in obtaining an injunction prohibiting Steinberg from vacating. While the litigation continued, the Bank of Montreal put Community into bankruptcy. Laurentian Heights was put up for sale and the property came under the control of Wolf von Teichman, either personally or in the name of his company Trillium Restaurants Ltd. (hereafter "Trillium"), by means of an agreement of sale and purchase with the Bank of Montreal.
Fred D'Silva, president of Oswenda Development Limited, learned around March 1985 that the shopping centre property was for sale. Oswenda is a general contractor and developer of shopping centres and apartment properties. D'Silva took an option on Laurentian Heights but let it lapse in June 1985 for lack of financing. Early in 1986 D'Silva made an offer to Oswenda to buy the shopping centre on condition that Oswenda would get clear title to the property, which required disposition of the litigation between Steinberg and Community, and vacant possession of the Steinberg store premises. D'Silva proposed also that von Teichman buy from Steinberg and sell to Oswenda all of the store fixtures and leasehold improvements. In fact, the offer of sale and purchase for the shopping centre and the proposal respecting the purchase and sale of the fixtures and leasehold improvements was made by Arfan Associates Limited, a wholly-owned subsidiary of Oswenda. On closing it was intended that Arfan would transfer title to Oswenda.
D'Silva set the offering price for the shopping centre to allow for a possible loss on Oswenda's purchase and resale of the fixtures and leasehold improvements. He also arranged Oswenda's financing of the shopping centre purchase to accommodate the detrimental impact on rental income of the store remaining vacant for up to 12 months. D'Silva was attracted to the property for several reasons. Oswenda was working on two condominium developments in the Kitchener-Waterloo area, an area which it considered to be very stable; there were three acres of undeveloped land in the shopping centre parcel and, if the vacant store could be leased for $9.00 per square foot, it would pay for the cost of developing that land; and, the cost of acquiring the property compared with its replacement cost was very favourable to Oswenda.
Von Teichman was able to fulfil all of D'Silva's conditions and the deal between them closed at the end of May 1986. Releases were exchanged protecting Steinberg, Community and Oswenda from any future legal action arising out of the lease dispute between Steinberg and Community and Steinberg and Community agreed to an early termination of their mutual obligations under the lease to be effective June 30, 1986. Steinberg agreed to give vacant possession to the store not later than that date. It actually vacated the store by June 21, 1986, effectively withdrawing from operating retail food supermarkets in Kitchener-Waterloo. Its nearest supermarket stores are located in Guelph and in the Galt area of Cambridge.
D'Silva considered his options for the vacant store were to find as a tenant a junior department store like Towers or K-Mart, a retail food store operated by one of the major chains, a major specialty store like Canadian Tire, Beaver Lumber or The Linen Service, or to sub-divide the 36,000 square feet. While D'Silva considered a department store to be the best anchor tenant because it would be expected to draw people from a greater area than a food store would, he also believed that the space available likely would be inadequate for most junior department stores and speciality stores, so his first preference was for a food-type store.
Paul Conway, general manager of Oswenda, approached representatives of the potential tenants referred to above. His efforts, according to D'Silva, drew a poor response. The only expression of interest was on behalf of Dutch Boy through Gordon Devonshire who was the Director of Real Estate for the Oshawa Group of companies at the time. D'Silva had taken into account the possibility that there might be no revenue from the store for up to 12 months when he arranged financing for the purchase. Thus, when it appeared to him that Dutch Boy might be the only party interested in the premises, he directed Conway to focus his attention on acquiring Dutch Boy as the centre's anchor tenant.
Approximately a year prior to hearing that the store in the Laurentian Heights shopping centre was available, Devonshire had been investigating for Dutch Boy and other divisions of the Oshawa Group a planned shopping centre site at Ottawa and Alpine Streets in Kitchener. The developer had applied for rezoning of the site and, one year later, when the Laurentian Heights store came to Devonshire's attention, the developer was still awaiting the rezoning and Devonshire was still interested in the property as a site for a Dutch Boy retail food store. When, however, it began to look like he could negotiate more advantageous conditions for the Laurentian Heights store, Devonshire finally rejected the Ottawa/Alpine site. Dutch Boy was operating six Dutch Boy Food Markets in Kitchener-Waterloo and wanted a store in the market area where the Ottawa/Alpine and Laurentian Heights sites are located. The two sites are approximately one mile apart. Dutch Boy wanted to locate a store in the area because it was isolated from the nearest Dutch Boy stores by Highway #8.
Dutch Boy opened for business on March 11, 1987, after making substantial renovations to the store. The store manager, assistant store managers, department heads and other full-time staff for the store came from other Dutch Boy locations. They were replaced by new employees hired for that purpose and trained at the other locations. Part-time staff were hired and trained at the store. The business terms for Dutch Boy's occupancy of the store had been settled by March 11th, but no lease had been executed. One eventually was executed between Oshawa Holdings Limited (on behalf of Dutch Boy) and Oswenda.
The history of the application of section 63 is replete with examples involving myriad transactions in the retail food industry. Counsel for the union and Dutch Boy relied on and reviewed many of the Board's reported decisions dealing with that industry. The Board has considered their analyses of its jurisprudence but will neither attempt to summarize those aspects of their submissions or undertake itself an extensive review of the law. Excellent reviews are to be found in a number of the cases relied on by both counsel, notably: More Groceteria Limited, [1980] OLRB Rep. April 486; Queensway Foods Ltd., [1984] OLRB Rep. Feb. 358 and Valencia Foods, [1984] OLRB Rep. May 773. The application in More resulted in a declaration of a sale of a business, the applications in Queensway and Valencia did not. The Valencia decision, the most recent of the three, reviews in some depth the development of the Board's jurisprudence under section 63, particularly as it has been applied in the retail food industry. This panel of the Board finds it useful to set out some of its discussion respecting the purpose, effect and scope of the section and its application to retail food businesses.
On the purpose, effect and scope of the section, the Board in Valencia, supra, said:
Section 63 takes effect only if there is a "sale" of a "business". A sale of business will always involve the transfer of assets of some kind from one legal entity to another, whether the assets transferred are shares used in the business; however, a transfer of assets will not always constitute a sale of business. When section 63 is invoked, the Board must determine whether there has been a "sale", a concept broadly defined in the statute and liberally interpreted by the Board: Thorco Manufacturing Ltd., 65 CLLC ¶16,052. In determining whether there has been a sale, the Board is more concerned with the substance of transactions than with their form. Two or more transactions or events may, together, constitute a sale. As the Board noted in Metropolitan Parking Inc., supra, at ¶28:
The Board has found a transfer of a business through a "chain" transaction, or sequence of sales (Culverhouse Foods Ltd., [1976] OLRB Rep. Nov. 691; Trenton Riverside Dairies, [1964] OLRB Rep. May 72), a corporate reorganization and merger, (Eaton Yale Ltd., [1971] OLRB Rep. Oct. 667; Westeel Rosco Ltd., [1966] OLRB Rep. Dec. 718) and through the offices of a receiver where "the business" has been transferred as a going concern (Marvel Jewelry Ltd., [1975] OLRB Rep. Sept. 733; Field-Price Ltd., [1973] OLRB Rep. Oct. 543; Parnel Foods Ltd., [1971] OLRB Rep. Nov. 715.) The manner of disposition is irrelevant so long as a transfer has, in fact, taken place. The interposition of a third party, acting as an agent or conduit, does not affect the result.
- The identification of a "sale" is usually less difficult than the determination whether the subject matter of the sale constitutes a "business" or "part of a business". In a "text-book" business acquisition by asset purchase; the purchaser seeks from the vendor the tangible and intangible assets employed in the business, assurances of continued commercial relations with suppliers and customers, and covenants of the vendor with respect to various matters, including non-competition. Where all the textbook elements are present, it is not difficult to conclude that a sale of a business has occurred. Some elements may be absent because, in the particular circumstances, those elements are not necessary, or because the parties or their advisors have not read the "textbook", or because the parties intend to convey a business but do not wish it to appear so. Elements may also be absent because the parties have no desire or intention to convey a business. Not infrequently, the parties to a transaction are focusing simply on the effective conveyance of certain assets, and do not ask themselves whether the assets sold together constitute a business. That question is, however, one which the Board is regularly obliged to address. As the Board said in Culverhouse Foods, [1976] OLRB Rep. Nov. 691 at ¶16:
……In each case the decisive question is whether or not there is a continuation of the business.. .the cases offer a countless variety of factors which might assist the Board in its analysis: among other possibilities the presence or absence of the sale or actual transfer of goodwill, a logo or trademark, customer lists, accounts receivable, existing contracts, inventory, covenants not to compete, covenants to maintain a good name until closing or any other obligations to assist the successor in being able to effectively carry on the business may fruitfully be considered by the Board in deciding whether there is a continuation of the business. Additionally, the Board has found it helpful to look at whether or not a number of the same employees have continued to work for the successor and whether or not they are performing the same skills. The existence or non-existence of a hiatus in production as well as the service or lack of service of the customers of the predecessor have also been given weight. No list of significant considerations, however, could ever be complete; the number of variables with potential relevance is endless. It is of utmost importance to emphasize, however, that none of these possible considerations enjoys an independent life of its own; none will necessarily decide the matter. Each carries significance only to the extent that it aids the Board in deciding whether the nature of the business after the transfer is the same it is was [sic] before, i.e. whether there has been a continuation of the business.
In Grand Valley Ready Mixed Concrete Supply Limited, [1981] OLRB Rep. June 663, the Board described the appropriate analysis in this way:
…..In most section 55 [now 63] applications, whether involving the alleged sale of the whole business or a part thereof, the nature of the alleged predecessor's business organization provides the ultimate answer. The Board identifies its essential elements and determines if sufficient of these have been transferred to the successor as to allow the business and the employment which it generates to continue. See Thunder Bay Ambulance Service, [1978] OLRB Rep. May 467 and Culverhouse Foods Limited, [1976] OLRB Rep. Nov. 691. However, if as in Canada Cement Lefarge, [1977] OLRB Rep. Jan. 5, and Darrigo Consolidated Holdings, [1980] OLRB Rep. Jan. 29, assets have been disposed of which are peripheral or unrelated to the business organization to which the bargaining rights at issue attach, the Board will not find that there has been a sale of a business within the meaning of the section,
The exercise becomes more complicated where, as in this case, the alleged successor has carried on a parallel business. Where the alleged successor has carried on a parallel business the result of the transaction may as easily be an expansion or alteration of his business as the transfer of the alleged predecessor's business. An employment opportunity which flows from an expansion or alteration of the business carried on by the alleged successor prior to the section 55 transaction does not trigger the operation of the section. The union's bargaining rights attach to the predecessor's business and their preservation is contingent upon a transfer and continuation of that business.
In Metropolitan Parking Inc., supra, the Board observed that continuity of the work performed is not by itself a conclusive test for applicability of section 63:
For a transaction to be considered a "sale of a business" there must be more than the performance of a like function by another business entity. There must be a transfer from the predecessor of the essential elements of the business as a block or as a "going concern." A business is not synonymous with its customers or the work it performs or its employees. Rather, it is the economic organization which is used to attract customers or perform the work. The Legislature could have provided for the continuation of bargaining rights whenever there is a continuity of the work performed, but it did not do so. Bargaining rights are continued only when the employer transfers his business. The use of the active verb and possessive pronoun is not insignificant.
Section 53 of the British Columbia Labour Code and section 144 of the Canada Labour Code are similar to section 63 of the Labour Relations Act. Both the B.C. and Canada Labour Relations Boards have recognized that the language and purpose of these provisions require more to support a declaration than similar work, as appears from the following passage from the B.C. Board's decision in Canadian Odeon Theatres Limited, 82 CLLC ¶16,139, [1981] 3 Can. LRBR 372, at pages 374 and 375:
As the Board pointed out in Lyric Theatre, [[1980] 2 Can. LRBR 331], the similarity of work performed before and after the transfer is not sufficient of itself. The Canada Board put it best in Radio CJYQ Limited and Newfoundland Broadcasting Ltd. And National Association of Broadcasting Employees and Technicians, [1978] 1 Canadian LRBR 565 at 574:
But continuity of the work done is not sufficient alone to satisfy section 144. There must be some nexus between the two employers other than the fact that one employed persons to do certain work that the other now does or will do, before one can be declared the successor of the other. Otherwise a loss of work to a competitor employer would result in a successorship. There must be some continuity in the employing enterprise for which a union holds bargaining rights as well as continuity in the nature of the work. The two go hand in hand.
The Board then went on to review how the section had been applied to retail food businesses (paragraphs 27 and 28):
Dutch Boy Food Markets, 65 CLLC ¶16,051 is one of the first cases in which the Board had an opportunity to assess an alleged sale of business in the retail food industry. In that case, Kitchener Foods offered to buy all of the leasehold improvements and fixtures on the premises from which Steinberg's then conducted its sole retail operation in Kitchener. The offer was conditional on the assignment to Kitchener Foods of Steinberg's leasehold interest in those premises. Steinberg's accepted the offer. The parties entered into a written agreement which contained no restrictive convenant by Steinberg's and expressly excluded "goodwill" from the purchase price. The Board rejected the argument that these features of the agreement precluded a finding that there had been a sale of a business:
A retail food supermarket, unlike some other businesses, has no customer orders or lists which can be transferred to a purchaser who intends to carry on the same type of business. By the very nature of a retail food business, with the exception of the name, a vendor has no goodwill which he can effectively give or withhold from a purchaser. The success of a food supermarket is dependent, on large measure, upon the support of the people who live in the area in which the store is located. Accordingly, any goodwill consists in the habit of customers of the vendor continuing to patronize the food market located on the same premises. If there was any goodwill to be acquired by Kitchener Food it was inherent in the premises themselves in which Steinberg's had carried on the same type of business as that carried on by Kitchener Food. Accordingly, the exemption of goodwill from the purchase price, in our opinion, has no real meaning.
Similar arguments were similarly rejected in L & M Food Markets (Ontario) Limited, [1965] OLRB Rep. Sept. 440 and Leader's Clover Farms Food Market, [1966] OLRB Rep. Nov. 636, both cases in which the successor acquired in a single transaction the predecessor's premises, fixtures, and equipment along with considerable stock-in-trade: all but the brand-name inventory in the L & M case, and all but the meat, frozen food, damaged stock and brand-name inventory in Leader's. The successor supermarkets opened 3 and 16 days, respectively, after their predecessors' supermarkets closed. The Board in Dutch Boy found a hiatus of 7 weeks' duration did not make the transaction there any less the sale of a business. It is perhaps noteworthy that, on the facts before it, the Board in that case was able to make a positive finding that the parties before them intended to engage in a sale of business:
Viewing the transaction more positively, we find it most significant that the wording of the Offer to Purchase itself clearly contemplates the sale of a "business". More particularly, the second paragraph of Article 2 on page 3 reads:
This transaction of purchase and sale is to be completed on or before the 31st day of December, 1964 on which date vacant possession of the business and premises of the Vendor is to be given to the Purchaser. (The underlining is added for emphasis.)
In our opinion, the above wording makes it abundantly clear that it was the intention of the parties that Kitchener Food acquire by sale the "business" of Steinberg's.
[emphasis added]
In assessing whether a sale of business has taken place, the absence of "textbook" elements becomes less critical if it is clear the parties thought they were engaged in a sale of business in a commercial sense.
Subsequent Board decisions all acknowledge, expressly or impliedly, the importance of the store premises as an element of a business in the retail food trade, and the significance of the inclusion of that asset in a putative "sale of business" transaction. The cases also reiterate the need to assess even that important factor in the context of all the surrounding circumstances, including the corporate relationship, if any, of vendor and purchaser, the continued presence or relocation of the vendor within the relevant market area, continued involvement of key personnel, the length of and reasons for the hiatus between the vendor's closing and the purchaser's opening, and any post-sale effort by the purchaser to identify its location by reference to the vendor prior operation: Super City Discount Foods Limited, [1970] OLRB Rep. Apr. 118; Gordons Markets, [1978] OLRB Rep. Dec. 1102; Zehrs Markets Limited, [1974] OLRB Rep. May 331; Dominion Stores Limited, [1979] OLRB Rep. 626; Darrigo Consolidated Holdings Inc., [1980] OLRB Rep. Jan. 29; More Groceteria Limited, [1980] OLRB Rep. Apr. 486. The importance of each factor is likewise a function of surrounding circumstances. The importance of both location and hiatus depend on the nature of the market served. The habit addressed in Dutch Boy is the habit of patronizing a business which has become identified with a location, and not just the tendency, all other things being equal, to shop near home. A hiatus in operation will diminish the force of that habit at a rate and to an extent which depend, presumably, on the nature of the shopping alternatives available, the regularity of resort to those alternatives, and the extent to which vendor or purchaser behaviour encourages or discourages any impression that the discontinuance of supermarket operations is temporary. It is not realistic to suppose that the relationship and application of these factors can be reduced to an algebraic formula. This is in part because when one goes beyond obvious generalities, the description and prediction of shopping behaviour cease to be the proper subject of judicial or administrative notice and become a matter for empirical and expert evidence of a nature seldom, if ever, placed before the Board in these cases. More importantly, the attempt to reduce these matters to a formula, through expert evidence or otherwise, would be of limited use; answers to these questions about the retail market are not ends in themselves, but merely one of the means employed in assessing the still highly qualitative question whether a "business" has been sold. The lesson of the cases is that while location and premises are important elements of a retail food business, they are not themselves the business; even location and premises can be or become mere "surplus assets" which alone, or even in combination with other assets, can lack the dynamic or organic quality which distinguishes a business from an idle collection of assets: Sunnybrook Food Market (Keele) Limited, [1974] OLRB Rep. Jan. 47; and see More Groceteria Limited, supra, at 26 ¶21-24.
Steinberg surrendered to Community its right to occupy the store and operate a retail food supermarket from it and, in turn, was freed from its court-imposed obligation to continue to operate a supermarket there. With that, Steinberg withdrew not just from the market area served by the store, but from the whole Kitchener-Waterloo market. It disposed of the store's fixtures, equipment and leasehold improvements to Trillium. Nothing in the evidence before us suggests that Steinberg's surrender of its rights to use of the store was made conditional on the sale of those assets to anyone, let alone to Dutch Boy. Trillium/von Teichman, in turn, sold those assets and the shopping centre to Oswenda/D'Silva. There is no evidence that Trillium/von Teichman was anything but a broker for the bank in finding a buyer for the property. Oswenda/D'Silva, the ultimate purchaser of the property, is a shopping centre developer. It does not operate retail food supermarkets and operating one in the former Steinberg store was not one of the options it considered. Qswenda acquired Steinberg's former fixtures, equipment and leasehold improvements as a "draw" for one of the classes of tenants it would be seeking for the store and was prepared to gamble on having to sell them independently if it did not find a tenant willing to buy them. There is no evidence that Steinberg at any time sought to find a buyer for its business and, on the evidence before the Board, it is beyond any reasonable inference that Trillium/von Teichman and Oswenda/D'Silva acted to find a buyer for Steinberg's business. Nor does the evidence disclose that Steinberg intended to sell part of its business to Dutch Boy. In addition, on the evidence, Dutch Boy and Steinberg are unrelated and, except for the lease governing Dutch Boy's occupancy of the store, they are unrelated to any of Oswenda, D'Silva, Trillium and von Teichman; and, Trillium and von Teichman are unrelated to Oswenda and D'Silva.
Once Dutch Boy took possession of the store, its existing business provided all of the management and full-time employees for its new store. Dutch Boy was able to do this because it was prepared to take advantage of the fact that it was negotiating a lease on another property at the same time and was prepared to invest in hiring and training replacement staff for existing managers and employees who would be transferred to either of the two new locations if lease negotiations were concluded successfully.
During the nine months when the store was closed, the only food supermarket comparable to Steinberg's store serving that market area was Zehrs, Dutch Boy's major competitor. It was approximately one mile away. The store had been "dark" for eight of the nine months. There was no visible indication that supermarket operations would or would not resume at the location. Those circumstances and their potential for dissipating the habitual patronage of the store, the supply of all managerial and full-time employees to the new operation from Dutch Boy's other stores and the independent nature of the transactions by which Steinberg surrendered its right to use the premises and sold its chattels and Dutch Boy acquired the chattels and the right to use the premises for a retail food store operation, weigh against a finding that there has been a section 63 sale of a business. In the Board's view, those factors, weighed in the context of all of the circumstances surrounding the transactions which began with Steinberg surrendering to Community its right to operate a retail food store in Community's shopping centre and selling its chattels to Trillium/von Teichman, and ending with Dutch Boy acquiring from Oswenda Steinberg's former chattels and a lease for use of the premises for a similar purpose, point towards a finding that Dutch Boy has expanded its business into the former Steinberg store.
For all of these reasons, none of the transactions, or any combination of them, by which Dutch Boy came to operate a retail food supermarket in the store in which Steinberg had operated a similar business, constitute a sale of a business from Steinberg to Dutch Boy within the meaning of section 63 of the Labour Relations Act. Accordingly, the application is dismissed.