Ontario Labour Relations Board

Citation: [1992] OLRB Rep. September 985

File Nos.: 0526-92-R; 0527-92-R

Between: The Canadian Alliance of Airport Transportation Workers, Applicant v. McIntosh Limousine Service Ltd., Air Cab Limousine (1985) Ltd., Aaroport Limousine Services Ltd., Respondents v. Teamsters Local Union 938 affiliated with the International Brotherhood of teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervener

And Between: The Canadian Alliance of Airport Transportation Workers, Applicant v. Airlift Limousine Services Limited, Respondent v. Teamsters Local Union 938 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervener

Before: G. T. Surdykowski, Vice-Chair, and Board Members W. H. Wightman and C. McDonald.

Appearances: Paul Faizone, Gurmit Singh, Gurdev Singh and Ballinder Sekhon for the applicant; Paulene Pasieka, George Agnew and Dan Stoikos for the respondents on August 12, 1992; Carl Peterson, George Agnew and Dan Stoikos for the respondents on August 13, 1992; no one appearing for the intervener.

Decision of the Board: September 15, 1992

1. These applications for certification came on for hearing together on August 12, 1992 and were scheduled to continue on August 13, 1992.

2. The respondents sought an adjournment of at least the August 12, 1992 hearing. Counsel advised the Board that the applicant had not delivered documents which the respondents had requested be produced until 4:00 p.m. on August 11, 1992 and that she had therefore not had sufficient time to review them in order to prepare for the hearing. Counsel also advised that another lawyer from her firm (Mr. Peterson) would have to attend on August 13, 1992 and that it would be more efficient if the same lawyer represented the respondents throughout. The applicant opposed the adjournment.

3. These applications were both filed on May 14, 1992. A pre-hearing representation vote was requested in each. In accordance with the Board's usual procedures in such applications, the parties met with a Board Officer (on June 3,1992 in Board File No. 0527-92-R and on June 4,1992 in Board File No. 0526-92-R) and, upon reviewing the Officer's pre-hearing vote meeting report and the other materials filed in each application, the Board (differently constituted) directed that a pre-hearing representation vote be taken and the ballot box be sealed (by decisions dated June 3, 1992 in Board File No. 0527-92-R and June 4,1992 in Board File No. 0526-92-R). Both votes were taken on June 18, 1992. Subsequently, by identical letters from counsel dated June 25, 1992 in each application, the respective respondents delivered statements of desire objecting to the manner in which the votes had been conducted and asking that they be set aside and new votes ordered. Further, by identical letters from counsel dated June 9, 1992 in each application, the respondents provided what appear to be particulars of their allegations that the applicant is not a trade union within the meaning of the Labour Relations Act, that the applicant is employer dominated or supported, and that the applicant "collected membership evidence as a result of misrepresentations" (and which particulars appear to have been delivered pursuant to the direction of the panel which directed the taking of the pre-hearing votes in that case, although after the time fixed therefore). It appears that it was not until July 31, 1992 that the respondents made a written demand for certain documents and that there were discussions between counsel (Mr. Peterson for the respondents) with respect thereto subsequently. It also appears that Ms. Pasieka and Mr. Peterson were aware since late June 1992 (when the notice of hearing to the parties was issued) that neither of them could attend the hearings on both August 12 and 13, 1992.

4. Upon considering the representations of the parties, the Board (orally) adjourned the hearing until 1:00 p.m. on August 12, 1992.

5. It is well understood that labour relations delayed are labour relations defeated and denied (Journal Publishing Co. of Ottawa Ltd. et al v. Ottawa Newspaper Guild, Local 205, OLRB et al, [1977] 1 ACWS 817 (Ontario Court of Appeal)) and that delay in labour relations matters often works unfairness and hardship (Re United Headwear and Biltmore/Stetson (Canada) Inc., (1983) 1983 CanLII 1852 (ON HCJ), 41 O.R. (2d) 287). Subject to the rules of natural justice and fairness, the Board enjoys a broad discretion to determine whether and in what circumstances proceedings before it should be adjourned. No party has a right to an adjournment for the convenience of itself or its representative (Re Flamboro Downs Holdings Ltd. and Teamsters Local 1879, (1979) 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400 (Ontario Div. Court)). In recognition of the need to proceed with labour relations matters expeditiously, it is the Board's well established practice not to grant adjournments except on consent of all parties, or where the Board is satisfied that there are extenuating circumstances such that an adjournment is appropriate.

6. It appeared to us that an adjournment until the afternoon adequately balanced and protected the interests of all parties. On one hand, the respondent would have time to review the documents which had been produced in response to a request which could have been made in a more timely manner, and Mr. Peterson would not likely have been in any better position on August 13, 1992 than Ms. Pasieka at 1:00 p.m. on August 12, 1992. On the other hand, the parties would have an opportunity to consider which documents could either be submitted without formal proof or were irrelevant, and the Board would also have an opportunity to review the documents. This seemed to be an efficient use of time because it appeared likely that it would serve to reduce the amount of hearing time required to deal with the applications.

7. This is in fact precisely what happened. The parties were able to agree that all of the documents they felt were relevant could be filed and entered as Exhibits without formal proof thereof. This saved a significant amount of hearing time and the matter proceeded and was concluded within the time scheduled.

8. Upon hearing and considering the representations of the parties, the Board dismissed the applications in an oral ruling. The Board was satisfied that the applicant is a trade union within the meaning of the Labour Relations Act. However, the Board also found that an employer, within the meaning of section 13 of the Act, namely the Iloda Co-operative Limited, had participated in the formation or administration of, and had provided support to the applicant, and that the applicant could therefore not be certified. Our reasons in that respect follow.

9. For the purposes of the Labour Relations Act, a "trade union" is defined, in section 1(1), as: “... an organization of employers that is accredited under this Act as the bargaining agent for a unit of employers; ...". Under the Act, an organization cannot be certified as the exclusive bargaining agent for employees unless it is a "trade union". Even if it is a "trade union" however, section 13 of the Act provides that:

10. The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has contributed financial or other support to it or if it discriminates against any person because of any ground of discrimination prohibited by the Human Rights Code, or the Canadian Charter of Rights and Freedoms.

11. In 1984, "driver" dissatisfaction with working conditions in limousine operations serving the Lester B. Pearson International Airport led some of them to approach Teamsters Local 938 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Local 938"). In response to this expression of interest, Local 938 mounted an organizing campaign which led to a number of applications for certification being filed in the Fall of 1984 (Board File Nos. 1489-84-R, 1490-84-R, 1491-84-R, 1492-84-R and 1549-84-R). A second series of applications were made in 1988 (Board File Nos. 1358-88-R, 1362-88-R, 1363-88-R, 1364-88-R, 1365-88-R, and 1392-88-R). Eventually, by decision dated May 17, 1989 in Airline Limousine Services Limited, [1989] OLRB Rep. May 395, the Board found McIntosh Limousine Service Ltd., Air Cab Limousine (1985) Ltd. and Aaroport Limousine Services Ltd. (the respondents in Board File No. 0526-92-R herein) to be one employer for purposes of the Act and certified Local 938 as the exclusive collective bargaining agent for all dependent contractors of the respondent Aaroport Limousine Services Ltd., Air Cab Limousine Services (1985) Ltd., and McIntosh Limousine Service Limited in its limousine service working in and out of Metropolitan Toronto and the Regional Municipalities of York and Peel, save and except dispatchers, office and sales staff, supervisors, and those above the rank of supervisor. For the purpose of clarity, the Board noted the parties agreement that the term "dependent contractors" means drivers, lessee-drivers, and broker drivers. In the same decision, the Board certified Local 938 as the exclusive bargaining agent for employees of Airlift Limousine Service Limited (the respondent in Board File No. 0527-92-R herein) in a bargaining unit described in the same terms and with the same clarity note.

12. The evidence before the Board reveals that some of the drivers subsequently grew dissatisfied with the representation being provided by Local 938. They felt they could do a better job of it themselves and so, in January, 1992, formed a committee to pursue that notion. That committee, the members of which substantially overlap with the present executive of the applicant, drafted a constitution and called a meeting for the purpose of forming a new trade union. At that meeting, held on March 29, 1992, the constitution drafted by the committee was proposed, presented and adopted by those present. The meeting was adjourned and those present then signed membership cards in the applicant. The meeting was then reconvened and these members adopted a constitution again. The meeting was then adjourned to allow for broader participation in the election of officers.

13. A second meeting was held on April 11, 1992. The events of the first meeting were reviewed, those attending who had not previously become members were made members and the constitution was again presented and adopted. Officers were then elected, all by acclamation. Subsequently, the applicant made these applications to displace Local 938 as bargaining agent.

14. On the evidence before the Board, we were satisfied that the applicant is an organization of employees formed for purposes which include the regulations of employment relations between them and their employers and that it is therefore a "trade union" within the meaning of the Act.

15. However, the evidence before the Board also revealed the following. The Independent Limousine Owners Drivers Association (the "ILODA") is an unincorporated organization which was formed in or about June 1979 in response to some perceived crisis in the airline limousine industry. The ILODA's prime function has been to present the views of its member brokers, lessee-drivers to government agencies and the public. With the passing of the original crisis, interest in the ILODA ebbed and it became inactive until it was revived when another crisis was perceived. This pattern of activity and inactivity has marked the history of the ILODA.

16. In accordance with this pattern, the ILODA was roused to action in 1987 as a result of proposals by Transport Canada with respect to the limousine/taxi cab airport permit system which some perceived would affect the investments of brokers and lessees operating under the system then in effect. The ILODA actively lobbied in support of its members interests in that respect.

17. In addition, the ILODA's corporate arm, the Iloda Co-operative Limited (the “Co-op”) took steps to be in a position to obtain permits with respect to the operation of a limousine service to and from Lester B. Pearson International Airport.

18. The Co-op was incorporated under the Co-operative Corporations Act, 1973 on July 28, 1983. Although Gurmit Singh, the only witness who testified before the Board, testified that it was formed with a view to providing more economical insurance coverage to drivers, the professed objects for which the Co-op was incorporated are:

(a) To provide and operate Limousine stands, and to acquire, maintain and operate buildings, storage houses and garages for the storage, caring for and keeping therein of Limousine and vehicles of every kind;

(b) To rent, lease and hire automobiles of all kinds and to carry and transport passengers in the same, and generally to carry on a Limousine business;

(c) To operate and carry on parking lots, service stations, and vehicle and motor repair shops;

(d) To operate and provide radio dispatching and communication services;

(e) To carry on any trade or business whatsoever which can, in the opinion of the board of directors, be advantageously carried on by the co-operative in connection with or as ancillary to any of the above objects.

In short, the Co-op was incorporated for the purpose of engaging in the airline limousine business.

18. In 1987, the Co-op mobilized to enter the limousine business. It had a formal business plan prepared. This plan, which is dated April, 1989, proposed that the Co-op incorporate a separate company, to be managed by shareholders-limousine drivers themselves, which would operate as a separate legal entity within the Co-op's organization. This new company (referred to in the business plan as "Air Limo") was to apply for and obtain the requisite permits from Transport Canada, and operate a limousine ground transportation service to and from Lester B. Pearson International Airport in direct competition with existing limousine companies, including the respondents herein. In pursuit of that goal, the Co-op applied for the limousine permits which Transport Canada had proposed to issue, appeared before the Ontario Highway Transport Board in hearings held in that respect, and received the rating of "Qualified Applicant" from that tribunal. Further, although the Co-op did not incorporate a new company, it did register "Airport Limo and Taxi Service" as a business name or style under the Co-operative Corporations Act. Although no new permits have in fact been issued to either the Co-op or to the other parties which applied for them and participated in the proceedings before the Ontario Highway Transport Board, the Co-op remains poised and ready (indeed eager) to tender on any new issue and to operate a limousine transportation business. In our view, the Co-op is an "employer" within the meaning of the Labour Relations Act, and specifically section 13.

19. The connection between the Co-op and the applicant is manifest. The applicant has used the offices and resources of the ILODA and the Co-op for purposes of organizing itself and its operations to date. More significant, however, is the overlap between the three entities. The documentary evidence before the Board reveals that the first and present officer's of the applicant are:

a) President: Gurdev Singh

b) First Vice-President: Baljinder Sekhon

c) Second Vice-President: Harminder Purewal

d) Secretary: Gurmit Singh

e) Treasurer: Surjit S. Sekhon

f) First Trustee: Jagbir Rai

g) Second Trustee: Vladimir Rogovsky

20. In addition to being its Secretary, Gurmit Singh was a major force in the formation of the applicant. At the same time, he is the first Vice-President of the ILODA, and a shareholder in the Co-op, which the ILODA begat.

21. The corporate documents with respect to the Co-op which are before the Board include an undated ~'Notice of Change" which includes particulars of the Directors and Officers of the Co-op. Although, it contains a handwritten notation that "22 July/92 - given to Jinna to file the company's branch - (illegible initials)" there is nothing on the document or otherwise in evidence before the Board to indicate that it was filed with the Ministry of Consumer and Commercial Relations. However, it indicates that the persons listed as Directors or Officers were all elected or appointed to their positions on June 27, 1992, the same dates that certain other name persons ceased to be Officers or Directors, and well after the applicant was formed and brought these applications.

22. There is nothing in the evidence before the Board which indicates that a Notice of Change filed with the Ministry of Consumer and Commercial Relations under the Corporations In formation Act on July 16, 1989 does not reflect who the Directors and Officers of the Co-op were at the times material to the Board's considerations herein; namely, at the time the applicant was formed and brought these applications. This Notice of Change and the business plan dated April, 1989 both indicate that Harminder Purewal was a Director and a Secretary and that Jagbir Rai was a Director and a Treasurer of the Co-op at the time that they were elected as the Second Vice-President and First Trustee respectively of the applicant.

23. In other words, some of the same people who formed and are managing the applicant were, at the material times (and perhaps still are) Directors and Officers of either the ILODA or the Co-op. The ILODA begat the Co-op which, though not presently active in the limousine business, desires and intends to be active and in direct competition with other employers, including the very ones with respect to which the applicant seeks certification herein.

24. In summary, the Iloda begat the Co-op and together they begat and gave support to the applicant, while at the same time the Co-op seeks entry into the limousine business. In our view, this is the sort of involvement by an employer in a trade union which section 13 of the Act is directed at. Accordingly, we were satisfied, on the evidence before the Board, that an employer, namely the Iloda Co-operative Limited, has participated in the formation and administration of the applicant and has also contributed its support to it. Consequently, section 13 operates to bar the Board from certifying the applicant herein and these applications were therefore dismissed.