Teamsters Local Union 879 v. Cronkwright Transport Limited, 1990 CanLII 5739

[1990] OLRB Rep. July 768

2147-89-R Teamsters Local Union 879 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant v. Cronkwright Transport Limited, Erie Employee Services Ltd., Respondents

BEFORE: Brain Herlich, Vice-Chair, and Board Members R. M. Sloan and B. L. Armstrong.

APPEARANCES: N. L. Jesin and D. Macllravey for the applicant; Roy Filion, Donna Guidolin, Jack Cronkwright and Cliff Bennett for the respondents.

DECISION OF BRAM HERLICH, VICE-CHAIR AND BOARD MEMBER B. L. ARMSTRONG: June 22, 1990

1. The style of cause is hereby amended to reflect the correct name of the second respon­dent as: "Erie Employee Services Ltd." Further, the parties agreed that there is no entity named "Lake Erie Shunt Works" and that named respondent should not be included in this application.

2. This is an application under sections 1(4) and 63 of the Labour Relations Act. The appli­cant seeks a declaration that Erie Employee Services Ltd. (hereinafter referred to as "Erie") is bound by the terms of a collective agreement between Cronkwright Transport Limited (hereinafter referred to as "Cronkwright") and the applicant (sometimes referred to as the "union").

3. During the course of the hearing the applicant indicated that it was not pursuing the application insofar as it relates to section 63 of the Act. To the extent the application relates to sec­tion 63, it is therefore dismissed.

4. Section 1(4) of the Act provides:

1.-(4) Where, in the opinion of the Board, associated or related activities or businesses are car­ried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions con­cerned, treat the corporations, individuals, firms, syndicates or associations or any combination thereof as constituting one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate.

FACTS

5. The Board heard evidence from Jack Cronkwright, president of Cronkwright and from Clifford Bennett who is Cronkwright's maintenance supervisor as well as a shareholder, officer and director of Erie. Although Mr. Bennett was not called to testify by either Erie or Cronkwright, he was, pursuant to the union's request and in view of the requirements of section 1(5), made avail­able for cross-examination by the union. The union called no viva voce evidence.

6. Cronkwright is a full truckload carrier and has been in the business for a considerable period. The union was certified to represent its employees in 1964. Prior to 1980 Cronkwright pro­vided some services on a sporadic basis to Stelco at a number of terminals throughout Ontario. In June of 1980 Cronkwright secured an account to service the Stelco Lake Erie Works facility at Nanticoke. The work involved hauling steel slabs or plates by flat bed trailer. The slabs were picked up and hauled away from an area of the Stelco facility known as door #15.

7. Within a few months of commencing this hauling work Cronkwright was requested, by Stelco, to provide a shunt service whereby loaded trailers could be moved from shipping door #15 and deposited in a compound located on Stelco property about 2 kilometres from door #15 to await delivery to their ultimate destination. Stelco apparently made the request in an effort to max­imize efficiency and reduce congestion at its loading dock. From Cronkwright's point of view this arrangement was not more efficient - it would require extra trailers, at least one extra tractor and driver, and would also require the extra work associated with hooking and unhooking of trailers in the shunt compound area. Notwithstanding this, Cronkwright agreed to provide Stelco with the requested shunt service.

8. The work associated with providing the shunt service was contracted out to Bruce Hor­ton who carried on business as Horton Shunt Service. Horton had previously been an owner-oper­ator for Cronkwright and had regularly hauled freight from the Stelco facility. Horton continued to provide the shunt service until the fall of 1988 when his contract was terminated by Cronkwright in circumstances to be described later. During the duration of his contract with Cronkwright, Horton had varying numbers of trucks involved in the shunt service. For the most part, however, it appears that Horton had one vehicle (leased from Cronkwright) used exclusively for shunt work and another used alternately for back-up purposes in the shunt operation and for highway driving (Horton, until sometime in 1982, continued to do some highway runs for Cronkwright in addition to the shunt work). The work associated with the shunt operation was performed by Horton, his spouse and, as required, drivers employed directly by Horton. The precise number of persons employed by Horton was not disclosed and appears to have been minimal.

9. The union was aware from the outset that this shunting work was being performed by Horton. Neither Horton nor any of the persons working with him were treated as employees of Cronkwright nor were the terms of the collective agreement applied to them. No grievance chal­lenging the contracting out of this work to Horton was ever filed by the union. However, on occa­sions when Horton was unable to provide the shunting services required he was "backed up" by Cronkwright employees and equipment. The necessity for Cronkwright to provide this back-up increased over time and, as we shall see, became particularly significant during the latter stage of Horton's contract with Cronkwright. Whenever full-time Cronkwright employees provided the back-up service for the shunting operation they were paid pursuant to and were otherwise covered by the terms of the collective agreement.

10. Sometime in mid-1983 Stelco began the manufacture and shipping of steel coils at the Nanticoke facility. Coils were shipped from an area known as door #22. At the time Cronkwright was the exclusive road hauler for steel slabs and was concerned to maintain that status and, if pos­sible, extend it to the hauling of coils. The issue of providing a shunt service at door #22 arose and Cronkwright initially and no doubt for reasons already canvassed, resisted the implementation of such a service. However, once it became clear that its continuing resistance might harm its compet­itive position (other competitors were prepared to provide the service) Cronkwright agreed to pro­vide it.

11. Cronkwright considered providing the shunt service at door #22 through Horton but it was readily apparent that the volume of work to be added to his door #15 shunt work was beyond his means. Cronkwright therefore provided the shunt service at door #22 directly through its own employees using its own equipment. Three tractors and six drivers were employed to provide a 24 hour operation.

12. Thus, from 1980 the shunt service at door #15 was provided through Horton (with "back-up" as required provided by Cronkwright employees) while, from its inception in late 1985 or early 1986, the shunt service at door #22 was provided directly by Cronkwright employees cov­ered by the terms of the collective agreement (when necessary Horton might provide back-up ser­vice at door #22 but this was a relatively rare occurrence).

13. The arrangement between Cronkwright and Horton was formally terminated by letter dated October 18, 1988 effective November 1, 1988. Cronkwright had become increasingly dissa­tisfied with Horton's performance. Communication difficulties were detailed in Cronkwright's evi­dence. Cronkwright determined it needed to have greater direct control over the shunting opera­tion. Furthermore, Horton's reliability deteriorated significantly in the weeks and months leading up to November of 1988. The proportion of occasions upon which Cronkwright had to provide back-up at door #15 increased dramatically. In September of 1988 Horton's then only shunt trac­tor broke down and was not repaired. Consequently the amount of shunt work at door #15 per­formed directly by Cronkwright employees increased to the point that by (and for the entire month of) October 1988 the door #15 shunt work was performed exclusively by Cronkwright employees.

14. Commencing in November of 1988 Cronkwright entered into an arrangement with Erie to provide the shunt servic~e at door #15. The parameters of this new arrangement resemble those of the former arrangement between Cronkwright and Horton. The relationship of Erie to Cronk­wright, however, is significantly different. The directors and officers of Erie are all spouses of the directors and officers of Cronkwright. Erie was incorporated in 1981 for purposes not relevant to the present application. Suffice it to say that Erie remained essentially inactive from its inception until November of 1988 when, operating as Erie Shunter Services, it began to provide the shunt service at door #15.

15. A number of factors entered into Cronkwright's decision to assign the door #15 shunting work to Erie. Mr. Cronkwright testified that this work had always been contracted out and Cronkwright preferred to maintain that situation. The cost of the shunting service (at both doors #15 and #22) is not recovered directly from Stelco, rather this is a service whose cost Cronkwright has had to absorb in the context of its total service for Stelco. Horton billed Cronkwright on a per load basis and Cronkwright preferred to maintain that arrangement as well, in preference to what one must infer would have been the greater cost of paying wages under the terms of the agree­ment. Erie has continued to bill Cronkwright on a per load basis although the rates have been increased approximately 7%. Cronkwright also acknowledged that a further reason for entering into the arrangement with Erie was so that Cronkwright could attain a greater degree of direct con­trol over the shunting operation.

16. Erie began to provide the shunting service in November of 1988. By letter dated November 29, 1988 the union filed a policy grievance as follows:

The Local Union contends that Cronkwright Transport is in violation of the Collective Agree­ment by subcontracting out work normally performed by members of the bargaining unit

The Company has instituted an operation at Stelco in Nanticoke known as "Lake Erie Shunt Works" in which it has non-union drivers performing shunt work. This practice should cease immediately.

Please contact the undersigned as soon as possible to arrange a meeting to resolve this important matter.

17. Although there was no direct evidence on point, it would appear, from the submissions of counsel, that the arbitration hearing arising out of this grievance was adjourned pending the dis­position of the present application. This application was filed on November 29, 1989.

18. Provisions of the collective agreement which may be relevant to our considerations include the following:

1.2 The Company recognizes the Union as the exclusive bargaining agent for its employ­ees as described below:

The term "employee" shall mean all employees save and except foremen, those above the rank of foreman, office staff, sales staff, security guards, office janitors, and probationary employees as defined in Article 8 of this Agreement. For the purpose of clarification of the above, (1) security guards may not dispense fuel and scale equip­ment and will not be allowed to operate, maintain, or handle vehicles, (2) personnel fueling and scaling as part of their duties who perform any other work coming within the scope of the Bargaining unit will be included in the Bargaining Unit.

ARTICLE 9

BROKERS

9.1 A broker is a subcontractor who leases equipment to the Company. Such broker will not hire drivers and will lease only one (1) tractor to the Company. Nothing in this Agreement shall be construed in such a manner that will class drivers of such equip­ment as employees of the Company who is a party to this Agreement. The Company shall not operate any equipment in any manner in contravention of the P.C.V. Act.

9.2 It is agreed that employees on the seniority list as of July 5, 1987 shall not be laid off as the direct result of the Company extending contracting out work to Owner-Opera­tors.

9.3 Should the Company extend its present broker operations, the Company will give to the existing qualified drivers with seniority, in order of seniority, the first opportunity to sub-contract, and thus become a broker.

9.4 It is agreed between the Company and the Union that for purposes of work assign­ment and layoff due to a shortage of work, the length of service of brokers shall be recognized in the same manner as the length of service of an employee under the terms of this Agreement, and where the broker was formerly an employee, the length of service as an employee shall be accumulative with the length of service as a broker.

9.5 The Company agrees to remit to the Local Union, an amount equal to the Local Union's monthly dues for all brokers operating for the Company.

Positions of the Parties

19. The respondents candidly acknowledged that they are separate corporations under com­mon control or direction which carry on associated or related businesses. While they agree, there­fore, that the essential ingredients for a related employer finding are present, they argue that the Board ought not to exercise its discretion to grant the relief requested. Their argument is essen­tially twofold.

20. First, assert the respondents, the work in question is work which has never been sought or claimed by the union (indeed there was evidence that a grievance resulted when an employee who refused to do shunting work at door #15 was sent home). In the circumstances and given the history of the parties' treatment of the work in question, the work never fell within the scope of work defined under the collective agreement. Consequently, there has been no erosion of bargain­ing rights and were the Board to grant the relief requested we would be extending, not merely pre­serving the union's bargaining rights. In support of its position the respondents relied upon the decisions of the Board in Industrial-Mine Installations Limited, [1972] OLRB Rep. Dec. 1029; West York Construction Limited and Bau Canada Limited, [1978] OLRB Rep. Sept. 879; Capricorn Acoustics & Drywall Ltd., [1986] OLRB Rep. Mar. 308; Donald A. Foley Limited, [1980] OLRB Rep. Apr. 436; The John Hayman & Sons Company Limited, [1984] OLRB Rep. June 822; Millwork & Building Supplies Limited, [1986] OLRB Rep. Nov. 1550; and Mandic Bros. Drywall and Const. Ltd., [1982] OLRB Rep. May 693.

21. In the alternative, the respondents asserted that the union's delay in bringing the present application ought to be fatal to its case. In this regard the respondents relied upon Harold R. Stark Limited, [1978] OLRB Rep. Oct. 945; Ferro Structural Steel (Toronto) Limited, [1981] OLRB Rep. May 523; Farquhar Construction Limited, [1978] OLRB Rep. Oct. 914; Bramalea Carpentry Associates, [1981] OLRB Rep. July 844; and Ellwall and Sons Construction Limited, [1978] OLRB Rep. June 535.

22. The union argued that this was a classic case of the mischief section 1(4) was enacted to remedy and responded to the two major grounds advanced by the respondents in support of their argument that the Board's discretion ought not to be exercised in the present case.

23. The union asserted that the nature of the relationship between the two respondents is fundamentally different from that which formerly existed between Cronkwright and Horton. Con­sequently, whatever steps the union did or did not take in relation to the work performed by Hor­ton have no bearing on the present application. The work performed by Erie is clearly bargaining unit work and the issuance of the relief being sought would preserve and not extend bargaining rights.

24. Further, the union points to the timely filing of its grievance and denies any suggestion it has slept on its rights.

25. In support of its position the union referred the Board to Brinks Canada Limited, [1987] OLRB Rep. May 647; Don Mills Bindery Inc., [1983] OLRB Rep. Dec. 2008; W. F. Stevens Reproductions Inc., [1984] OLRB Rep. Apr. 674; and Federated Building Maintenance Company Limited, [1985] OLRB Rep. Nov. 1585.

DECISION

26. In Ethyl Canada, Inc., [1982] OLRB Rep. July 998 at paragraph 37 and 38 the Board described the purpose of subsection 1(4) as follows:

27. Section 1(4) of the Act deals with situations where the economic activity giving rise to the employment is or can be carried out through more than one legal entity. In such circumstances an alteration in legal form, or a transfer of work from one legal entity to another, can under­mine established collective bargaining rights. Section 1(4) ensures that the institutional rights of the trade union and the contractual rights of its members, will attach to a definable commercial activity rather than the particular legal vehicle(s) through which that activity is carried on. Legal form is not permitted to obscure economic and collective bargaining realities. In this respect Section 1(4) creates a regime of collective bargaining law which significantly modifies common law notions of privity of contract or the corporate veil. However, while the language of section 1(4) is very broad, the section is not intended to apply in every case which in a general or lin­guistic sense meets its statutory criteria. The Board has a discretion concerning the application of section 1(4) and, in the past, it has exercised that discretion carefully, in light of the circum­stances of each case, and labour relations policy considerations.

28. The Board accepts the applicant's submission that section 1(4) may impose some limits on the degree to which an employer can avoid its obligations under a collective agreement by sub­stituting the employees of another employer for its own. There is something to the notion that a company cannot subcontract to itself, or what may be the same thing, to an entity totally con­trolled by it.

29. Dealing first with the respondents' submissions regarding delay, the Board is satisfied that the union's conduct was not such as to foreclose relief in the present case.

30. The cases referred to by the respondents involve delays in the range of 8-12 months to several years between the time the applicants knew (or ought to have known with reasonable dili­gence) that the respondents were related and the time that the 1(4) applications were brought. We would note as well that in none of those cases were timely grievances filed putting the employer on notice as to the union's objections. In the present case there is nothing to suggest that the union knew or ought to have known of Erie's existence prior to November of 1988. While the present application was not filed until one year later, the grievance already referred to was filed promptly.

31. While the respondents argue that the terms of the grievance are neither clear nor com­pelling, the Board is satisfied that, whether or not the grievance is skillfully drafted and whether or not its success depends on the outcome of the present application, the grievance clearly indicated the union's challenge to the propriety of the assignment of the work to Erie.

32. The respondents argued that no decision of this Board has treated the filing of a griev­ance (in the absence of the filing of a related employer application) as "stopping the clock" in rela­tion to any requirement to file a related employer application in a timely manner. Even the case relied upon by the union, Brink's Canada Limited, supra, involved the filing of a grievance and subsequent 1(4) application within a period of two months.

33. The Board is of the view, however, that the facts of the present case more closely resemble those in Krest Masonry Contracting Limited, [1988] OLRB Rep. Aug. 813. In that case some two years elapsed between the time the union became aware of the related employer and the filing of the application. While no grievance was filed during that period, the issue was the subject of ongoing discussions between the parties initiated promptly by the union. The Board concluded that, in the circumstances, the union's failure to expeditiously bring its application to the Board should not totally foreclose the remedy sought. The Board did, however, limit the retrospective effect of its declaration to the date of filing the application in an effort to balance the competing commercial, collective bargaining, equitable and practical concerns. Had the period between the filing of the grievance and the present application been as protracted as the comparable period in Krest the Board might have considered, had the parties addressed the point, limiting the retrospec­tive effect of any declaration. Given that Cronkwright was aware from the outset of the union's objection to the arrangement with Erie, we see no reason to foreclose or limit the relief otherwise available to the union.

34. We turn now to the consideration of the respondents' primary position. First, what sig­nificance, if any, should the Board attach to the fact that the work in question was initially con­tracted out to Horton with no objection from the union? We do not find the union's failure to grieve this arrangement surprising. While the collective agreement (Article 9) contains some limi­tations on Cronkwright's right to contract out, it is not readily apparent that Cronkwright's arrangement with Horton runs contrary to any of those provisions. But even if a grievance would have been unlikely to succeed, the union could have brought a related employer application seek­ing to have Horton bound by the terms of the collective agreement. Should its failure, over a period of 8 years, to act against Horton preclude it from acting against Erie? We think not.

35. It would not be productive to speculate in great detail or, indeed, to decide the merits of a 1(4) application which is not before us. Suffice it to say that while the Board has granted 1(4) relief in cases involving what appears, on the surface, to be legitimate contracting out of work to an entity operating at arm's length from the employer, the contours of such cases are dramatically dif­ferent from cases like the present application (see, for example, Kennedy Lodge, [1984] OLRB Rep. July 931). Indeed, as Mr. Filion candidly acknowledged, the situation involving Cronkwright and Horton was not as clear cut as the present situation between Cronkwright and Erie. There is a fundamental difference, which this Board has recognized, between bona fide contracting out to an arm's length entity and contracting out to oneself or, what may amount to the same thing, to an entity which one totally controls (see the comments already cited in Ethyl Canada, Inc., supra; and in Donald A. Foley Limited, [1980] OLRB Rep. Apr. 436).

36. The current relationship between Cronkwright and Erie is so fundamentally different from the former arrangement between Cronkwright and Horton that we cannot conclude that the union's failure to bring a related employer application in respect of Horton should preclude it from bringing the present application.

37. This leads to what the respondents appear to have identified as the central issue in this case. Is the work in question bargaining unit work? If it is not, as the respondents claim, then there is clearly no erosion of bargaining rights and the application must fail. If it is, as the union claims, then to the extent that Cronkwright is contracting the work out to itself (as opposed to a bona fide contracting out to an independent arm's length contractor) then there is an erosion of bargaining rights which the Board would normally remedy.

38. The scope clause of the collective agreement is in a relatively standard "all employee" format. There is no meaningful distinction, relevant to our purposes, between the shunt work per­formed at door #22 and that at door #15 (whether performed by Horton, Erie or Cronkwright). At first blush there is no reason to conclude that shunt work performed at either door would not fall under the agreement. Less evident is the conclusion that the work at door #22 falls within the agreement while that at door #15 does not. Less evident still is the conclusion that the work at door #15 is not bargaining unit work when performed by Horton or Erie but is bargaining unit work when performed by Cronkwright. Whatever the history and propriety of contracting out (part of) the shunt work, the Board fails to see how its character as work falling within the union's bargaining rights is altered. Cronkwright may well be fully entitled to continue to legitimately con­tract out some or all of this work. When, however, it decided to (effectively) contract it out to itself, we see no reason not to look to the related employer provision of the Act.

39. The respondents assertion that there has been no erosion of bargaining rights escapes us. In circumstances where the very work in question (at door #15) and substantially, if not entirely, identical work (at door #22) have, in the past, been regularly performed by bargaining unit employees, we can only conclude that there has at least been a potential erosion of the union's bargaining rights as a result of Cronkwright's arrangement with Erie.

40. The union in the present case neither grieved nor brought any section 1(4) application in relation to Horton. In the circumstances, we cannot conclude that by this inaction, the union irrevocably waived the right to assert that the work performed by Horton would fall under the jurisdiction of the collective agreement if and when such work was performed directly by Cronk­wright (as has already occurred) or, alternatively, if and when it was performed by a related employer. It may well be that had Cronkwright elected to continue to legitimately contract the work out to an arm's length contractor, such arrangement would be insulated from attack through either the grievance procedure or a related employer application. Cronkwright has chosen, how­ever, for reasons which include its desire to exercise greater direct control over the work, to enter into an arrangement with a related company. Not only does this choice exhibit the classic hall­marks of related employer cases, it also, in our view, more closely resembles a choice to perform the work directly than a choice to contract it out. Granting the union's application will not directly alter the fundamental choices available to the employer or the consequences flowing from those choices. Where the work has been performed by bargaining unit employees, those employees have been treated as falling within the collective agreement. Where the work was legitimately con­tracted out to an independent third party, the persons doing the work have not been covered by the collective agreement. The employer cannot avoid whatever consequences flow from doing the work directly by entering into an arrangement with a related employer. The difference between Cronkwright performing the work directly and the current arrangement with Erie is a difference in form not substance.

41. The parties agree that the essential ingredients for a related employer finding are present. We are not persuaded that there is any reason not to exercise our discretion in this case.

42. On the basis of the evidence before us and pursuant to section 1(4) of the Act, we find that the respondents are carrying on associated or related businesses under common control and direction, and we direct that they be treated as constituting one employer for the purposes of the Labour Relations Act. We further declare that Erie is bound to the collective agreement between Cronkwright and the applicant as if Erie had been a party thereto.

DECISION OF BOARD MEMBER R. M. SLOAN; June 22, 1990

1. I must respectfully dissent from the majority decision.

2. The application by the trade union, in the circumstances of this case, requires its dis­missal on a number of significant grounds but, in my view, the most significant is the denial of the fundamental right of the employees of Erie Employee Services Ltd. ("Erie") to exercise a free choice with regard to union representation, a right guaranteed under section 3 of the Ontario Labour Relations Act ("The Act").

3. In support of my dissenting opinion, I will summarize what I believe to be the salient facts:

(a) Applicant Aware of Contracting of Shunt Work

For over nine(9) years the shunting operation now being performed by Erie was performed by a contractor - which Erie continues to be, having replaced Horton's Shunt Service ("HSS") on November 1, 1988; The applicant was fully aware of these circumstances.

(b) (i) The Shunt Work Was Never Bargaining Unit Work

During all of the above-mentioned period, indeed right up to the time of the subject application, the work done by HSS was considered by both the trade union and Cronk­wright to be outside the bargaining unit covered by the col­lective agreement between the union and Cronkwright. The applicant made no representation at the hearing that its view in this regard had changed;

(ii) Prior to this application the union never claimed either the work or any persons performing the work as being within its

jurisdiction under the collective agreement;

(iii) No persons engaged in the contracted work as employees of HSS or Erie were or are members of the applicant nor did

they pay union dues;

(iv) The applicant at no time made any representations to HSS or Cronkwright regarding any claim for jurisdiction over the shunting operation. Nor did the applicant file an application under section 1(4) of the Act challenging the contracting relationship between Cronkwright and HSS which continues today as essentially the same contracting arrangement but between Cronkwright and Erie;

(c) (i) There were no lost jobs;

(ii) The union was not prejudiced in any way.

(d) Erie as a legal entity existed before the shunting contract was entered into with Cronkwright, having been incorporated on July 17, 1981. Erie was established to provide various trucking industry related ser­vices such as: driver services; placement services; and a number of legitimate corporate considerations. The contracting of the shunting work melds appropriately into the established purposes of Erie;

(e) The effectiveness of the shunting operation performed by HSS was such that Cronkwright, to protect its larger trucking interests-among other reasons- sought a replacement contractor and entered into an agreement with Erie;

4. Counsel for the respondent in his opening comments advised the Board that Cronk­wright and Erie are related businesses operating under common direction and control but asserted that this is not an appropriate case for the Board to exercise its discretion to declare the two corpo­rations as one under section 1(4).

5. Purpose of Section 1(4)

(i) The Board in File No. 0535-78-R, West York Construction Limited, and Bay Canada Limited, [1978] OLRB Rep. Sept. 879, stated in paragraph 9 (in part):

The Board, when deciding the exercise of its discretion in any particular fact situation, must have regard for the purpose of section 1(4) in the scheme of the Act. That purpose stated gener­ally, is to protect against the frustration of bargaining rights which have already been earned by a trade union, or the frustration of a trade union's efforts to gain them and to prevent the undue fragmentation of bargaining rights...

[emphasis added]

In seeing that the purpose of the section is properly realized, the Board is concerned with sev­eral questions.

a) Is the applicant attempting to disturb existing bargaining rights?

b) Is the applicant attempting to circumvent the normal process of certification by means of section 1(4)?

c) Are there employees whose rights under the Act to choose their own bargaining agent would be interfered with?

d) Has the applicant come within a reasonable period of time of becoming aware that the two respondents are closely associated in their business?

(ii) The answers to the above-noted four (4) questions are: Yes, despite its present position the applicant by its conduct has effectively acknowledged that the work for which they are seeking certification is not bargaining unit work; Yes, the applicant has chosen to attempt to obtain a favourable Board ruling which will save them the work and expen­ses of a normal representation effort; Yes - emphatically; No the applicant was well aware of this shunt operation for the best part of ten (10) years and further emphasized its disinterest by not filing the present application until thirteen (13) months after the contract between Cronkwright and Erie became effective.

(iii) It is clear from previous Board rulings that the purpose of section 1(4) is "...to cure the mischief that results from being unable to adequately define the employment relation­ship and in order to prevent the erosion of bargaining rights" (Sack and Mitchell (1985) section 6:5 100). It is also abundantly clear that neither of the above considerations per­tain under the circumstances of this case.

6. Timeliness

To say that the applicant slept soundly on its rights would not be an exaggeration. If the majority decision discounts the nearly ten (10) years when the applicant could have attempted to acquire representation rights through direct contact with the employees doing the shunt work or through a section 1(4) application, there is still the inordinate delay of some thirteen (13) months between the time the union knew or should have known about the contract entered into between Cronk­wright and Erie. The "grievance" upon which the applicant attempts to rely to support the timeli­ness of its application can be discounted by the Board because it contains - according to the respon­dent - and uncontested by the applicant - "statements which are misleading, inaccurate and false".

7. Extension of Bargaining Rights

Again it is clear from the evidence that the applicant is attempting to extend its bargaining rights. Board jurisprudence has not supported such efforts. The Board has however, where appropriate, listened to arguments with respect to the "erosion" of bargaining right - a claim which the appli­cant has not made and cannot make in this case.

8. Right of Contract

Another issue which the majority decision fails to address is the argument by the respondent that the union, by seeking to unreasonably extend its bargaining rights to the shunt operation, has deprived Cronkwright from entering into a legitimate contractual relationship with Erie. The two afore-mentioned entities operate independently in such matters as the work performed, and the persons employed to do the shunt work, notwithstanding the "common direction and control" admission.

9. Right to Free Choice

The majority decision in the final analysis is flawed in that it fails to address a fundamental issue raised by counsel for the respondent - that issue is the clear and unambiguous right of the Erie employees to freely decide whether or not they wish to be represented by a trade union.

The Board has a duty to protect the rights of individual employees and should under no circum­stances abrogate these rights - a result which clearly flows from the majority decision.

10. For all of the reasons indicated above I would dismiss this section 1(4) application.