United Food and Commercial Workers International Union, Local 175 v. McCarthy Milling Limited, 1994 CanLII 9789

[1994] OLRB Rep. May 577

0412-91-R United Food and Commercial Workers International Union, Local 175, Applicant v. McCarthy Milling Limited, Responding Party v. ADM-Agri Indus­tries Limited, Intervenor

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members G.O. Shamanski and J. Redshaw.

APPEARANCES: Michael Kiug, John Carreirro and Bill Richardson on behalf of the applicant; Mark Contini, John Barrack and Michael Jarrett on behalf of the intervenor.

DECISION OF THE BOARD; May 25, 1994

1. The style of cause is amended to reflect that ADM-Agri Industries Limited has been added as an intervening party to these proceedings.

2. This is a request for reconsideration in which the Board is asked to reconsider and revoke its decision dated May 29, 1991.

3. This matter was heard by this panel on March 29, 1994. At the conclusion of the hearing on that day the panel rendered the following unanimous oral ruling:

We have considered the submissions of the parties with respect to the trade union's preliminary motion that the Board ought not to entertain this application for reconsideration and have determined to grant that motion with our reasons to follow.

In granting the motion we recognize that given the nature of this issue and the dispute between the parties this matter may surface again at some point in the future. In our view however there are sound competing reasons which balance, (and in this case outweigh) the reasons advanced by the applicant for reconsideration in support of its request that this matter ought to be deter­mined at this time and in this context.

We now provide our reasons.

4. The relevant provisions of the Labour Relations Act ("the Act") and the Board's Rules of Procedure ("Rules") which govern applications of this sort are section 108 of the Act and sec­tion 85 of the Rules. These state:

108.-(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nev­ertheless the Board may at any time, if it considers it advisable to do so, reconsider any deci­sion, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

(2) If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes.

(3) Where the Board has authorized the chair or a vice-chair to make an inquiry under clause 105 (2) (h), his or her findings and conclusions on facts are final and conclusive for all purposes, but nevertheless he or she may if he or she considers it advisable to do so, reconsider his or her findings and conclusions on facts and vary or revoke any such finding or conclusion.

Section 85 of the Rules state:

85. No request for reconsideration will be considered where it is filed thirty (30) or more days after the date of the Board's decision, except with the permission of the Board.

86. On May 29, 1991 the Board (differently constituted) certified the United Food and Commercial Workers' Union, Local 175 ("the Union") as the bargaining agent of:

all employees of McCarthy Milling Limited in the City of Mississauga save and except foremen, persons above the rank of foremen, lab technicians, office and clerical staff.

That decision was rendered without a hearing as the union and McCarthy Milling Limited had reached agreement on all matters in dispute between them, and had each agreed to waive their right to a formal hearing in the certification application. It is this decision which the Board has been asked to reconsider by ADM-Agri Industries Limited ("ADM").

6. The primary submission in support of this request for reconsideration is that the Board did not have the constitutional jurisdiction to deal with the application for certification and issue the decision dated May 29, 1991 because the operations of the responding party involved a federal work and employees employed in connection with that federal work.

7. At the hearing on March 29, 1994 counsel for the trade union made a preliminary motion that the Board should not entertain this request for reconsideration. He requested that the reconsideration application be dismissed without a further hearing.

8. Counsel for the union made a number of submissions in support of his motion. First, he noted that the party requesting reconsideration did not have the requisite status to make the request as it was not an original party to the proceedings in which the decision sought to be recon­sidered was rendered. Secondly, he referred to the time which has elapsed since the Board's deci­sion of May 29, 1991. He argued that a delay of nearly three years should cause the Board to refuse to reconsider its decision. Of more significance however was counsel's assertion that the Board's decision dated May 29, 1991 and its certification of the trade union has become largely superfluous because after it was certified the union negotiated a collective agreement covering the bargaining unit for which it had been certified. It was the union's position that its bargaining rights therefore stem from that collective agreement and do not stem from the Board's decision dated May 29, 1991 or the certificate granted to the trade union. Reconsideration of the Board's original decision certifying the union would therefore be an academic exercise which would have no practi­cal effect or result. The subsequent negotiation of a collective agreement by the parties has ren­dered moot both the Board's May 29, 1991 decision and certification of the union, and any juris­dictional issues arising from that decision and certification.

The Status Issue

9. This request for reconsideration has been made by ADM. ADM was not an original party to the certification proceedings at the time the Board rendered its decision dated May 29, 1991 and certified the trade union. In its application ADM asserts that it is the successor employer to McCarthy Milling Limited. It asserts that it purchased McCarthy Milling in July 1991 and thereby became the successor employer pursuant to section 64 of the Act. Counsel for ADM also asserts that by virtue of section 64 (2.1) it became a party to the certification proceeding before the Board and therefore now has status to bring this reconsideration request.

10. The trade union pleads that any sale of McCarthy Milling took place prior to the deci­sion of the Board dated May 29, 1991 with the result that any issues which ADM now seeks to raise could have been raised at the time of the certification proceedings. As such the "due dili­gence" test enunciated in the Board's jurisprudence dealing with reconsideration requests has not been met by ADM with the result that this reconsideration request ought not to be entertained by the Board. Counsel for the trade union also notes that there has not been any application made to the Board, or any declaration made by the Board, pursuant to section 64 of the Act. As a result counsel for the union questions the applicability of that section to these proceedings.

11. In the circumstances of this case we have not found it necessary to determine whether the sale of McCarthy Milling Limited to ADM took place shortly before or shortly after the deci­sion of the Board dated May 29, 1991. With respect to counsel for the union's submissions that there has not been an application to the Board, or a declaration made by the Board under section 64 of the Act, we note merely that section 64 specifies that if the predecessor employer is a party to a proceeding before the Board (as McCarthy Milling Limited was), then a successor employer is a party to the proceedings as if it were the predecessor employer until the Board declares otherwise.

12. We have dealt with this matter and the trade union's preliminary motion by assuming, without finding, that a sale within the meaning of the Act did take place from McCarthy Milling Limited to ADM and that by reason of that fact ADM has status as a party to the certification pro­ceeding before the Board in which this reconsideration request is made.

The Delay Issue

13. As noted, the basis for the request for reconsideration is that the Board did not have the constitutional jurisdiction to certify the union. In our view delay is not a relevant consideration where the matter deals with the constitutional jurisdiction of the Board as the doctrine of delay and laches cannot apply to give to the Board constitutional jurisdiction where it would not other­wise exist.

The Constitutional Jurisdiction Issue

14. Counsel for ADM submits that pursuant to section 92(10)(c) of the Constitution Act

1867, legislation governing labour relations on works declared to be for the general advantage of Canada falls within federal legislative competence and is outside provincial legislative competence and therefore outside the jurisdiction of the Act and this Board. Counsel referred to section 76 of the Canadian Wheat Board Act RSC 1985 as amended and submitted that all flour mills have been declared by the Parliament of Canada to be for the general advantage of Canada. McCarthy Mill­ing Limited did, and its successor ADM does, operate a flour mill in the city of Mississauga. The application for certification and the Board's decision certifying the union relates to employees employed at that flour mill. As the operation of the flour mill has been declared to be for the greater advantage of Canada it is exempted from provincial jurisdiction. The Board had no juris­diction to certify the union in its decision dated May 29, 1991 and the certificate granted is void ab initio because the labour relations of this operation are federally regulated and subject to the Canada Labour Code.

15. In addition, in its pleading, ADM also submitted that as the Board did not have the constitutional jurisdiction to certify the union, the certificate granted did not bind ADM when it acquired ownership of McCarthy Milling Limited. Consequently, the collective agreement affect­ing ADM's employees is not valid or applicable because negotiations between the parties took place on the mistaken premise that the certificate was valid and the parties were bound to follow provincial legislation. In its pleadings ADM also submits that it did not voluntarily recognize the union nor did it voluntarily agree to negotiate a collective agreement. These actions flowed directly from the granting of the certificate by the Board.

16. Before this panel counsel reiterated that this was ADM's primary position but acknowl­edged that ADM's negotiation of a collective agreement could be construed as voluntary recogni­tion of the union. It was submitted however that any determination whether there has been volun­tary recognition is beyond the jurisdiction of this Board and is properly determined pursuant to the applicable provisions of the federal legislation governing labour relations upon federal works.

17. Counsel referred to Ward Shellington, [1974] OLRB Rep. Sept. 609, Bill Thompson Transport Limited, [1986] OLRB Rep. Jan. 2 (for the proposition that reconsideration of the origi­nal certificate is the appropriate mechanism for the constitutionality of the certification to be raised), and Arnprior and District Memorial Hospital, [1981] OLRB Rep. Aug. 1089. With respect to the jurisdiction of the Board and the constitutional issues raised in connection therewith counsel referred primarily to Ontario Hydro, [1993] 107 D .L. R. (4th) 457 (SCC) and distinguished Cargill Grain Company, 1989 CanLII 5237 (FCA), 63 D.L.R. (4th) 174 (FCA). The pleadings refer also to Maple Leaf Mills Limited. (Komoka Branch), [1969] OLRB Rep. Feb. 1177, Super Sweet Formula Feeds, [1965] OLRB Rep. June 212, Shure-Gain Division, Canada Packers Inc. 80 di 71 and Central Western Railway Corporation v. United Transportation Union et. al., 1988 CanLII 5649 (FCA), [1989] 2 F.C. 186.

18. Counsel for the trade union disputed that the Board's decision of May 29, 1991 related to a federal work or undertaking or employees employed in connection with a federally regulated

operation. Counsel asserted that in order to determine the issue with respect to the constitutional jurisdiction of the Board it was necessary to examine the entire operations or undertaking of an employer to determine whether the particular part of the operations or the employees for whom the trade union was certified worked upon an "integral", or merely an "incidental", part of an operation that is under federal jurisdiction. Thus, even if McCarthy Milling Limited and/or ADM did operate a flour mill, and even if flour mills were "works" declared to be for the general advan­tage of Canada, that would not answer the question of constitutional jurisdiction because it does not follow that the "undertaking" of the employer is within the federal sphere merely because a part or one of its "works" (which is not an integral part of its undertaking) is federally regulated. Similarly, even if a particular work falls within the federal sphere, it does not follow that the labour relations of all of its employees are governed by federal legislation. Counsel for the union relied principally upon Cargill Grain Company, supra.

19. The constitutional issues of jurisdiction raised by the parties during the course of their submissions are complex and by no means clear cut. Under the circumstances however we have determined it is neither necessary nor appropriate for the Board to resolve those issues within the context of this reconsideration request.

The Collective Agreement Issue

20. It is not disputed that after the trade union was certified in May 1991 it entered into negotiations for a collective agreement covering the employees in the bargaining unit. The collec­tive agreement which resulted from those negotiations was between the union and ADM. (We note parenthetically that during the course of those negotiations, and pursuant to the provisions of provincial legislation, the union applied for conciliation and a "no board" report was issued by the conciliator appointed). The first collective agreement ultimately achieved between the parties expired on July 31, 1993. Although negotiations for its renewal have taken place, a renewal agree­ment has not been achieved.

21. It is the existence of these circumstances which caused the Board to grant the trade union's motion and to refuse to entertain this request for reconsideration.

22. It is well established that when an agreement has been entered into following the certifi­cation of a trade union the certificate granting the trade union bargaining rights is "spent". That is to say that from that point forward, the bargaining rights of the trade union which exist between the parties flow from the collective agreement rather than from the original certification. The bar­gaining rights granted by the certificate are merged into and subsumed by the collective agreement subsequently entered into.

23. In the circumstances before us this concept of the merger of the bargaining rights is par­ticularly important. In this case the bargaining rights granted to the trade union by the certificate of the Board was with respect to the employees of McCarthy Milling Limited. The bargaining rights of the union found in the collective agreement however are with respect to the employees of ADM. Thus, in the context of this application for reconsideration, if the Board did reconsider its decision dated May 29, 1991 and revoke the certificate of the trade union with respect to the employees of McCarthy Milling Limited, it would not affect the bargaining rights of the union flowing from the expired collective agreement between the union and ADM covering the employ­ees of ADM.

24. A determination by the Board of the constitutional propriety of the issuance of the cer­tificate to the trade union in the earlier proceedings between the trade union and McCarthy Milling Limited does not and can not resolve the issues relating to constitutional jurisdiction which con­tinue to exist between the union and ADM.

25. In this reconsideration request the only issue which can be resolved is whether the Board had the constitutional jurisdiction to certify the trade union at the time it issued its decision on May 29, 1991. That issue is not necessarily the same as whether the Board continues to have the constitutional jurisdiction, or whether provincial legislation continues to govern the labour rela­tions of ADM and the union. (It is not difficult to imagine circumstances in which, at the time a certificate is granted a predecessor employer is governed by provincial legislation but subsequent events, or the purchase by a successor employer, renders that formerly provincially regulated oper­ation subject to federal regulation and laws. The reverse circumstances whereby a predecessor employer formerly governed by federal legislation becomes subject to provincial legislation as a result of changed circumstances, or a successor employer's purchase of the operation, is equally plausible). Thus, in the context of this reconsideration request, a determination that in May 1991 McCarthy Milling was or was not a federal undertaking subject to federal laws governing labour relations, does not in 1994 necessarily answer or assist ADM in its position that its operations are federal and its employees are employed upon or in connection with that federal undertaking.

26. It may be that the manner in which we have determined to exercise our discretion whether or not to entertain this reconsideration request is unduly technical focusing as it does upon the identity of the responding party in the original certification proceedings. Certainly, and as indi­cated during the course of the hearing, the underlying issue as to whether the labour relations between ADM and the trade union are subject to federal or provincial legislation is not moot and may be raised in the future under a myriad of different circumstances --- counsel for the employer cited as examples the employer's contestation of the future appointment of any provincial concilia­tor because of its position that its labour relations are not governed by provincial legislation, or its assertion during any strike that the newly enacted replacement worker provisions of Bill 40 (see section 73.1 of the Act) are not applicable to flour mills which have been declared to be for the greater advantage of Canada and which are therefore exempted from provincial labour relations legislation.

27. The constitutional issues raised by the parties however are complex. Those issues only become more complicated and intricate in the circumstances of this reconsideration request because of the "sale" from McCarthy Milling to ADM, and given the doctrine of the merger of bargaining rights granted by a certificate into a collective agreement negotiated thereafter. In our view the constitutional issues are more properly dealt with separate and distinct from these compli­cating factors.

28. For policy reasons the Board is also reluctant to embark upon a reconsideration request more than two and a half years after the issuance of its decision when the parties are, at least in chronological terms, well into their collective bargaining relationship.

29. Over the years the Board has established certain parameters around the exercise of its discretion to reconsider its decisions. (See for example K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096). These parameters include a general reluctance to entertain reconsideration requests which do not disclose an intention to adduce new evidence or make new representations which a party did not have a previous opportunity to raise. If the Board were to entertain this reconsideration request in the circumstances of this case those parameters would be compromised. In this regard, in our view it is irrelevant that ADM has recently retained new counsel who made the reconsideration request as soon as he became aware that the union had been certified under provincial legislation.

30. Moreover, the parameters would be compromised in circumstances where the issue of whether the Board had the constitutional jurisdiction has become somewhat theoretical and abstract. In this case, where the issue can also be raised in more concrete terms and adjudicated upon in the context of present day, existing, specific or particular facts, that mechanism is to be preferred over the reconsideration of a 1991 decision.

31. For all of these reasons we granted the trade union's motion not to entertain this recon­sideration request. We have made no decision with respect to the constitutional jurisdiction of this Board to deal with labour relations matters between ADM and the union. Our decision therefore is without prejudice to the positions of either of the parties in the event this matter is properly raised before the Board, or any other tribunal in any future proceedings.