Communications, Energy and Paperworkers Union of Canada, Local 521 v. Groupe Schneider S.A., 1994 CanLII 9831

Ontario Labour Relations Board

Citation: [1994] OLRB Rep. February 142 File No.: 2581-92-R Date: February 28, 1994

Between: Communications, Energy and Paperworkers Union of Canada, Local 521, Applicant v. Groupe Schneider S.A., Schneider Canada Inc., Merlin Germ Ltd. (Federal Pioneer Division), and Square D Company of Canada, Responding Parties

Before: Russell G. Goodfellow, Vice-Chair, and Board Members G. 0. Shamanski and P. V. Grasso.

Appearances: James Hayes and J. Smith for the applicant; James Knight, Bruce Gray, Paul Shemilt and Eric Hoffe for the responding parties.

DECISION OF THE BOARD; February 28, 1994

1The title of proceedings has been amended to reflect the correct names of the applicant and the responding parties.

2This is an application under section 1(4) of the Labour Relations Act, arising out of the closure of a warehouse operated by Merlin Germ Ltd. (Federal Pioneer Division) and the transfer of the work performed at that warehouse to Square D Company Canada.

3At the time of the hearing Merlin Germ, including the Federal Pioneer Division, and Square D were subsidiaries of Groupe Schneider S.A., a company incorporated in France and car­rying on business in Canada as Schneider Canada. After the conclusion of the hearing, the parties advised the Board that Schneider Canada had become a legal entity in its own right, known as Schneider Canada Inc. There is also the suggestion that Merlin Germ and Square D may have ceased to exist as separate corporate entities. For the purposes of this decision, however, we have assumed that they continue to exist, at minimum, as separate operating divisions of Schneider Canada Inc.

4Section 1(4) of the Labour Relations Act states:

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.

5The responding parties agree that they are carrying on "associated or related activities or businesses ... under common control or direction" within the meaning of section 1(4), and that the only issue is whether the Board should exercise its discretion to declare them a single employer.

6At the request of the Board, the parties filed an agreed statement of facts. What follows is a condensed version of the agreed facts, as supplemented by the evidence of the only witness to testify in these proceedings, Eric Hoffe, who was called by the respondents.

Facts

7Groupe Schneider is a manufacturer of electrical products with world wide operations. In the fall of 1990 Groupe Schneider acquired Federal Pioneer Ltd. Federal Pioneer had been engaged in the manufacture and distribution of electrical products in Canada since 1946. On Janu­ary 1, 1993, Federal Pioneer Ltd. was merged with Merlin Germ Ltd., a subsidiary of Groupe Schneider, losing its separate corporate identity and becoming a division of Merlin Germ.

8Square D is another world wide manufacturer of electrical products, operating in Canada since 1908. It too was acquired by Groupe Schneider, but in the fall of 1991.

9At the time of the acquisitions Square D and Federal Pioneer had a number of manu­facturing, assembly and distribution operations across Canada, some of which were unionized and some of which were not. One such operation was a combined Federal Pioneer manufacturing plant and warehouse at Waterman Avenue in Scarborough. The applicant held bargaining rights in respect of this operation.

10In March of 1991, Federal Pioneer decided to lease a new warehouse in Markham. The term of the lease was one year from April 1, 1991 to March 31, 1992, followed by two six month options. By agreement of the parties, the applicant's bargaining rights were extended to cover the Markham location.

11In the spring of 1992, Square D was conducting a warehouse and distribution operation on Rexwood Road in Mississauga. By that time it too was looking for new warehouse space. Accordingly, a Schneider Canada distribution consolidation committee was set up to examine the possibilities of integrating the warehouse and distribution operations of both Square D and Federal Pioneer. Ultimately, this process became part of an overall review already underway in respect of Schneider Canada's entire operations. The result was a decision to consolidate the two warehouses in a new facility on Caravelle Drive in Mississauga. Accordingly, on September 1,1992, Schneider Canada announced that henceforth all warehouse, distribution, customer service and inventory control functions formerly carried out by Square D and Federal Pioneer would be transferred to the new facility.

12At the time of the announcement the applicant represented approximately 300 produc­tion workers at Federal Pioneer on Waterman Avenue in Scarborough and ten warehouse employ­ees at Markham. Square D's Rexwood Road facilities were non-unionized. The Schneider Canada announcement made clear that the Caravelle Drive warehouse would be a "Square D" warehouse staffed by Square D employees. On September 1, there were approximately 16 non-unionized employees at the Square D warehouse, with one resignation the day before.

13Employees at Federal Pioneer's Markham warehouse were advised that they had the option to bump back into production jobs at the Waterman Avenue plant under the terms of the existing collective agreement. A posting also went up for a single warehouse position at Caravelle Drive. It was understood, however, that success on the posting would mean that any Federal Pio­neer employee would be treated as a new hire at Caravelle Drive without the benefit of union rep­resentation or the Federal Pioneer collective agreement. There were no takers.

14On September 3 and 8, 1992, the union filed policy and group grievances challenging the planned relocation as a breach of Articles 2 and 28 of the Federal Pioneer collective agree­ment. The grievances request the reinstatement of the ten affected employees, reimbursement of any monies lost and compliance with the collective agreement. Article 2 of the Federal Pioneer agreement states in part:

2:01 (a) The Company recognizes the Union during the term of this Agreement as the so]e and exclusive bargaining agent for all employees of Federal Pio­neer Limited in its Metro Toronto plants, save and except assistant fore­men, persons above the rank of assistant foreman, technical, office and sales staff.

(b) The Company agrees that, if the existing operations or any part thereof covered by this Agreement, are moved to a new Company location outside Metro Toronto, but no further than a 50 mile radius from the Waterman plant location, restricted to Canada, the Company will recognize the Union as the bargaining agent for those operations, and will agree to negotiate a separate collective agreement for those operations.

Employees covered by this Agreement who as the direct result of the relo­cation are to be laid off from the Company will be advised of available opportunities and have preferential hiring status at the new location and they will retain Company service. Further, those affected employees who elect to move as a result of the relocation, closer to the premises, will be reimbursed for eligible moving expenses to a maximum of $500.

(emphasis added)

(Article 2.01(a) describes the bargaining unit by reference to "Metro Toronto". A letter of under­standing signed on April 5, 1992, however, includes the Markham warehouse within the scope of Article 2.)

15Federal Pioneer's third step answer to the grievances is dated October 1, 1992. It states:

The Company denies that there has been, or will be, a violation of Article 2. The Company is not moving the warehousing functions to a new Company location. By matter of contract, the Company intends to have Square D Canada perform the warehousing functions. Square D Canada is a separately incorporated company, with a significant history of its own of manufac­turing and distribution. Square D will shortly be moving into a new warehouse space with extra capacity. It is both efficient and cost effective for Square D to provide a warehousing service to Federal Pioneer.

In other words, having decided to relocate the work performed at the Markham warehouse to within 50 miles of the Waterman Avenue plant, Federal Pioneer was taking the position that its operations were not moving to a new "Company" (i.e. Federal Pioneer) location but to a location operated by a different company (i.e. Square D). On that basis, the response says, Article 2.Ot(b) does not apply. The grievances remain outstanding.

16The work performed at the Federal Pioneer warehouse was transferred to Caravelle Drive on November 23, 1992, approximately one month after the Square D work. Of the ten bar­gaining unit members previously employed at Markham, two accepted early retirement. The oth­ers exercised their rights under the collective agreement to return to Waterman Avenue in manu­facturing jobs. One employee moved up a pay grade, one remained at the same grade, and the other six suffered various levels of pay reduction. Two employees also declined early retirement.

Although there were no lay-offs as a result of the bumping, it was agreed that more junior employ­ees remained on lay-off from Waterman Avenue who might otherwise have been recalled. Mean­while, at the new Caravelle Drive facility, Square D was increasing its complement of warehouse employees to 23.

17To round out the employment picture at Caravelle Drive and its relationship to Federal Pioneer, as at November 1992:

(i) a former Federal Pioneer employee had transferred to the position of warehouse supervisor at Caravelle Drive;

(ii) five of the 11 employees in the newly consolidated Customer Service Department, including the manager, had come from the Federal Pioneer Waterman Avenue plant;

(iii) four of the 11 employees in the newly consolidated Inventory Control and Distribu­tion Services Department had come from the Federal Pioneer Waterman Avenue plant;

(iv) the Manager of Distribution Services for Schneider Canada located at Caravelle Drive to whom all of the foregoing departments report is Eric Hoffe, the former Man­ager of Distribution for Federal Pioneer; and,

(v) all of these employees were beyond the scope of the applicant's bargaining rights and were transferred to Caravelle Drive with full salary and benefits, subject only to any adjustments made necessary by the blending of the Square D and Federal Pioneer sal­ary and benefit structures.

18The reasons for treating the new warehouse at Caravelle Drive as a Square D ware­house rather than a Federal Pioneer or Schneider Canada warehouse and, therefore, for not apply­ing Article 2.01 (b) of the Federal Pioneer collective agreement, are outlined as follows in the agreed statement of facts:

The Company [i.e. Schneider Canada] advises that, at least until such time as the corporate reorganization has been completed, the Caravelle warehouse had to fall under either Square D Canada or Merlin Germ (Federal Pioneer Division). The Company took the position that the Caravelle warehouse should be a Square D warehouse for a number of reasons:

• The Square D warehouse was moved first.

• 20 of the 23 employees employed at Caravelle commenced employment with the Car­avelle warehouse at Rexwood and simply relocated with the warehouse (Exhibit 5). Ten of the 24 employees joined Square D Canada prior to the initiation of the pur­chase of Square D by Groupe Schneider SA. Four of the employees were with the Rexwood warehouse when it first opened as a central warehouse in 1985. Of the other employees hired since July, 1992, two were replacements for employees who had resigned, and a third transferred from the Square D production plant in Waterloo. The increase from the budgeted to actual head count in November, 1992, was only four of 23 employees (Exhibit 4).

• The Square D warehouse was moved from one permanent location to another; whereas, the Federal Pioneer warehouse was in a temporary location.

• While both Square D and Federal Pioneer have significant warehousing requirements served by the Caravelle warehouse, Square D is considered by the Company to be larger than Federal Pioneer in terms of products handled by the warehouse (Exhibit 6, measured by space allocation and by "sku's"): Square D and Federal Pioneer are relatively equal in terms of volume of sales.

• The North American network of distribution centres is managed by Square D, as is the computerized inventory system used to control product.

19Mr. Hoffe was cross-examined on each of these points. He conceded that the Square D work was moved to Caravelle Drive only about one month prior to the Federal Pioneer work and that this was simply a matter of "logistics". It was not a significant factor. As to the second point, Mr. Hoffe acknowledged that the reason the 20 employees moved to Caravelle Drive from Rex-wood Road was because they were asked to. Apart from the single job posting, the Federal Pio­neer employees received no such invitation. Mr. Hoffe also acknowledged that all but one of the ten Federal Pioneer employees had greater seniority with Federal Pioneer than the Square D employees had with Square D. The third factor was seen by Mr. Hoffe as significant because Square D always had a permanent off-site warehouse while Federal Pioneer had only operated under such an arrangement for one and a half years.

20With respect to the fourth factor, Mr. Hoffe agreed that the only reason for any contin­uing distinction between Federal Pioneer and Square D was marketing and goodwill, and that in all other respects Schneider Canada was attempting to dissolve the distinctions between the two com­panies as part of an overall corporate reorganization. Of the three new services performed at Cara­velle Drive grouped under the Schneider Canada umbrella (i.e. Inventory Control and Distribu­tion, Customer Service, and Warehouse Facility) only one is identified as a "Square D" operation -the warehouse. The other two are described in organizational charts as Schneider Canada func­tions, reporting to Mr. Hoffe. In addition, while Square D products may consume a greater amount of floor space at the Caravelle Drive warehouse and account for a majority of the stock keeping units ("sku's"), the sales volumes of the two companies are roughly equivalent. The budg­eted cost of the operations is charged back by Schneider Canada on a 50/50 basis.

21As to the fifth point, Square D had three distribution centres in the U.S. while Federal Pioneer had none. Further, a decision had been made in May 1992 that the Schneider North America inventory control system, formerly the Square D system, was more efficient than the Fed­eral Pioneer system and the latter would be gradually phased out. However, both systems contin­ued to operate side by side at Caravelle Drive until June 1993, necessitating the training of the for­mer Square D employees on the Federal Pioneer system. While somewhat more would have been involved in training former Federal Pioneer employees on the Square D system, Mr. Hoffe con­ceded that this could have been achieved at "minimal cost".

22Finally, Mr. Hoffe denied the suggestion that the Square D identity was preserved to assist Federal Pioneer in its dispute with the union over bargaining rights at the new warehouse. According to the agreed statement, Inventory Control and Distribution, and Customer Service functions at Caravelle Drive are considered to be Schneider Canada functions because they involve centralized management and support services which are for the benefit of all Schneider Canada companies and operating divisions. Mr. Hoffe testified that Schneider Canada was not concerned about whether there was a union at Caravelle Drive, but about the wishes of the Square D employ­ees and the relatively greater job security of the Federal Pioneer employees. The latter group had the right to bump back into manufacturing jobs at Waterman Avenue but no such contractual right existed for the Square D employees. Thus, by making Caravelle Drive a Square D warehouse rather than a Federal Pioneer or, perhaps, Schneider Canada warehouse, more jobs would be pro­tected. Had Schneider Canada been interested in avoiding the union's bargaining rights, Mr. Hoffe said, it could simply have established the new warehouse more than fifty miles away from Water­man Avenue or contracted the work out to a third party. There are no "contracting-out" restric­tions in the collective agreement. The fact that Schneider Canada chose not to do so demonstrates that it was not attempting to frustrate the union's bargaining rights.

Submissions

23Counsel for the union reminds the Board that the basic elements of a section 1(4) decla­ration are present and that the only issue is whether the declaration ought to be made. In address­ing this issue, the union submits that the whole object of the Schneider Canada reorganization was to dissolve any operational distinctions between the original companies, subject only to preserving original names for marketing purposes. Since there is no marketing aspect to the name on the warehouse door, counsel submits, there was no real basis for calling Caravelle Drive a Square D warehouse, rather than a Federal Pioneer or Schneider Canada warehouse, except as part of an effort to avoid the union's bargaining rights.

24According to the union, the purposes of section 1(4) are to protect employees and trade unions from the effects of corporate change, and to enable the union to deal with the party that exercises real influence over the bargaining relationship. In this case, that party is Schneider Canada. While conceding the legitimacy of the overall corporate reorganization, union counsel characterizes the companies' arguments for designating the new warehouse a Square D warehouse as "boot-strapping". It was Schneider Canada that decided when the warehouses would move, and the actual moves were only one month apart. It was Schneider Canada that decided which employ­ees would staff the new warehouse; if seniority had been taken into account across both companies all of the Federal Pioneer employees would now be employed at Caravelle Drive. Counsel sees no labour relations or other significance in the fact that the Square D warehouse, unlike the Federal Pioneer warehouse, had always been off-site. Similarly, while the difference in the number of "sku's" may favour Square D, this is not a sufficient reason for denying the union's bargaining rights. Counsel also sees little merit in the suggestion that the North American distribution net­work is managed by Square D, and notes that the Federal Pioneer employees could have been trained on the Square D system at little additional cost.

25Where the union does recognize the potential for legitimate concern, however, is in the relatively greater job security of the Federal Pioneer employees and the right of the Caravelle Drive workforce to select its own bargaining agent. Counsel argues, however, that it would have been possible to blend the two work forces based on seniority without any effect on Square D employees hired prior to 1991. Further, if employees are dissatisfied with their bargaining agent, they can remove it at certain times.

26The union submits that its bargaining rights have been eroded, Federal Pioneer employ­ees have been forced to accept jobs requiring different skills at lesser rates of pay, and employees on lay-off from the Waterman Avenue plant have not been recalled. The union requests a single employer declaration to enable it to enforce the contractual provision it negotiated to deal with such moves (i.e. Article 2.01(b)) free of the effect of the changes in the employer's identity.

27Counsel for the respondents points out that Caravelle Drive was but one small part of a much larger consolidation exercise undertaken by Schneider Canada, and whether or not the trade union ended up with bargaining rights at that location was not a factor in its thinking. The reasons for designating the Caravelle Drive warehouse a Square D warehouse were set out in the agreed statement of facts and explained by Mr. Hoffe. In the respondents' view, treating Caravelle Drive as a Square D warehouse was in the best interests of Square D, Federal Pioneer and their respec­tive work forces, and there is no evidence of any scheme to frustrate the union's bargaining rights.

28The respondents stress that we are dealing with the interests of an established work­force with its own body of work that has never demonstrated any appetite for collective bargaining. Counsel notes that ten of the Caravelle Drive employees joined that company prior to the announcement of the move and, hence, this is not a case of a new corporation being established to obtain work from an existing company. While the respondents are prepared to concede that the union has suffered an erosion of bargaining rights, it argues that a single employer declaration would have the effect of extending rather than preserving those rights.

Decision

29In determining whether or not a single employer declaration is warranted, the Board will ask itself two questions. First, do the facts disclose the kind of "mischief' that section 1(4) was intended to address? In other words, has the union demonstrated the kind of interest that section 1(4) was designed to protect? Second, and if the answer to the first question is "yes", is there some supervening or overriding reason why the single employer declaration ought not to be granted?

30The classic expression of the purpose of a section 1(4) declaration is set out in Brant Erecting and Hoisting, [1980] OLRB Rep. July 945, Oct. 1353 at para. 12:

Section 1(4) was enacted in 1971 and deals with situations where the economic activity giving rise to employment or collective bargaining relationships regulated by the Act, is carried out by, or through more than one legal entity. Where such legal entities carry on related business activi­ties under common control or direction, the Board is empowered to pierce the corporate veil. Section 1(4) ensures that the institutional rights of a trade union, and the contractual rights of its members, will attach to a definable commercial activity, rather than the legal vehicle(s) through which that activity is carried on. Legal form is not permitted to dictate or fragment a collective bargaining structure; nor will alterations in legal form undermine established bargaining rights. In this respect the purpose of section 1(4) is similar to that of section [64] which preserves the established bargaining rights and collective agreement when a "business" is transferred from one employer to another. Section [64] has been part of the scheme of the Act since the mid-1960's. Neither remedial provision requires a finding of anti-union animus; their primary appli­cation is to bona fide business transactions which incidentally undermine or frustrate established statutory rights.

31The "institutional rights of a trade union" to which the Board refers include the right to represent persons employed in classifications or activities defined in the Board's certificate or, sub­sequently, in the scope clause of the collective agreement. The "contractual rights of its members" are those that may be found in the collective agreement, including the right to be represented by the trade union. Section 1(4) protects these interests from changes in the identity of the employer, whether brought about by a transfer of work or employees between employers, whether the related entity is newly established or was already in existence, and whether the transaction in ques­tion is the product of legitimate business reasons or anti-union beliefs.

32In this case, it is clear that the Federal Pioneer bargaining unit has lost a discrete body of work in which 10 of its more senior employees had been engaged. The former Markham ware­house employees have lost the positions to which their seniority had previously entitled them, and many have suffered losses in pay. Employees on lay-off from Waterman Avenue have not been recalled. In practical terms, the union no longer represents persons engaged in warehouse work and its membership has been correspondingly reduced. Through the designation of Caravelle Drive as a "Square D" warehouse, the union has also lost the opportunity to enforce Article 2.01(b) of the collective agreement. But for the rather transparent position taken by the employer that Square D would be performing the work under subcontract to Federal Pioneer, this provision may have protected the union's bargaining rights and the employment opportunities of its mem­bers.

33The evidence, both oral and documentary, makes clear that there was and is only one company present for labour relations purposes: Schneider Canada Inc. It was this company (or its predecessor Groupe Schneider S.A. carrying on business as Schneider Canada) that "called the shots" on the relocation of the work and the identity of the new employer, and it is on behalf of this company that all of the Caravelle Drive activity is currently being performed. In the Board's view, a section 1(4) declaration would give effect to this reality and would further the protection of the employee and trade union interests outlined above.

34The respondents argue, however, that a single employer declaration ought not to be made because it would deny the Square D workforce the right to choose their own bargaining agent. It would also have the effect of extending the union's bargaining rights to an established group of employees performing a pre-existing body of work. For a number of reasons, the Board is not persuaded by these arguments.

35First, as a legal matter, it is not apparent to us that a section 1(4) declaration will neces­sarily have the effect of extending the applicant's bargaining rights to all of the Caravelle Drive workforce. Article 2.01(b) of the collective agreement appears to require the Company to recog­nize the union as the bargaining agent for only "those operations" transferred. This may not include the former Square D operations. However, this distinction was not raised by the parties and may be unworkable for practical purposes. The work of the two companies is now likely suffi­ciently intermingled as to preclude any apportionment on labour relations grounds. In these cir­cumstances, however, any "extension of bargaining rights" would be the result of the way in which the employer has structured its affairs, and not the application of section 1(4).

36Second, the Board is not convinced that having structured the transaction in a manner that excluded the applicant and the Federal Pioneer workforce, and having placed the fights of the Square D employees in issue, the respondents should now be permitted to raise those rights as a basis for denying a declaration. Consistent with the labour relations reality we have found, the more appropriate course would have been for the employer to approach the trade union with its plans and to attempt to sort out the effect of its obligations under the collective agreement. Pre­cisely to what extent this would have resulted in a different mix of employees at Caravelle Drive, the Board cannot say. It seems likely, however, that a substantial portion of the Caravelle Drive workforce would have been made up of former Federal Pioneer employees, with the applicant as their bargaining agent. The employer not having taken these steps, for reasons which the Board finds to be lacking in substance, there would be some inequity to now permit it to rely on the situa­tion which it has itself created as a reason for denying a declaration.

37Third, the extent to which the Board will consider, or even have the opportunity to con­sider, the wishes of individual employees for or against a bargaining agent will be a function of a variety of factors, including the way in which the employer has structured its affairs, the relative number of employees in issue, and the employees' relative degree of attachment to their present status. Had the employer placed the name "Federal Pioneer" or even, perhaps, "Schneider Canada" over the warehouse doors at Caravelle Drive, the current Square D employees may sim­ply have been considered an accretion to the applicant's bargaining unit. Although the result may be the same as the making of a declaration, no question of statutory interpretation would have ari­sen. Likewise, had an entirely new company with a new workforce been established to perform the same body of work at Caravelle Drive, it is unlikely that the employer would have seriously consid­ered raising the status of these individuals as a bar or even a serious impediment to a single employer declaration. Further, even in cases where the Board has the clear statutory authority to measure employee wishes (e.g. section 64) it may choose not to do so where numbers do not war­rant or some mischief has been found. In this case, it is not clear to us that all 300 bargaining unit members at Waterman Avenue are without interest in this dispute and, accordingly, even assuming the Board has the jurisdiction to direct a vote under section 1(4), it may not be inclined to do so. It is against this background that the respondents' arguments for withholding the section 1(4) decla­ration must be understood.

38In our view, this is not a case where the wishes of the Caravelle Drive employees ought to dictate a result different from that which we have arrived at in answer to our first question. On the traditional analysis, it is clear that the union is not seeking to expand its membership, or the work opportunities of its members, through a single employer declaration rather than the certifica­tion process. Rather, it is attempting, quite legitimately, to protect its rights and those of its mem­bers that have been compromised by the change in the identity of the employer. Those rights are expressed in Article 2.01(b) of the collective agreement and the Board is unwilling to permit their frustration through the manipulation of corporate identities. In these circumstances, the fact that a section 1(4) declaration may affect the status of certain "Square D" employees is a product of the employer's initiative, not the union's.

39As the Board noted in The Great Atlantic and Pacific Company of Canada Limited, [1981] OLRB Rep. Mar. 285:

We have considered the respondents' arguments with respect to "foisting" a union upon a group of employees who may not wish to be represented; however, we do not think that the wishes of the employees are the only, or even the predominant, factor to be considered in a section 1(4) application. If such were the case, the very erosion of bargaining rights which triggered the pro­ceeding, (and which section 1(4) was designed to cure) could be raised as a bar. It is entirely typ­ical that the employees of a related company will not be union members, for it is the creation of job opportunities ostensibly beyond the scope of the collective agreement, which constitutes the erosion of the union's bargaining rights. But for the creation of a separate vehicle, the work opportunities associated with the related business activity, and the conditions of employment of the employees engaged in that activity, would be regulated by the collective agreement. The very purpose of section 1(4) is to ensure that the union's bargaining rights and the scope of the collective agreement will not be restricted simply because an employer chooses to expand through a new corporate vehicle rather than its existing one.

While there are certain factual differences between the A & P case and the present, in our view the principle remains the same: the wishes of the employees of the related entity will be a factor, but only a factor, to be considered by the Board in the exercise of its discretion. In our view, given the circumstances outlined above, it is a factor which ought not to be accorded decisive weight.

40The Board therefore finds and declares that the responding parties are one employer for the purposes of the Act. At the time this case was heard, Federal Pioneer had a number of manufacturing operations in Ontario. In light of this fact, and given the focus of the parties' case, the declaration will be restricted to the warehouse operations at Caravelle Drive.