United Steelworkers of America v. Group 4 C.P.S. Limited, 1994 CanLII 9885

[1994] OLRB Rep. April 400

1582-93-U; 1644-93-U United Steelworkers of America, Applicant v. Group 4 C.P.S. Limited, Responding Party

BEFORE: Jules Bloch, Vice-Chair, and Board Members D. A. MacDonald and E. G. Theobald.

APPEARANCES: P. Turtle, Gerry Popew and Chris King for the applicant; Richard Nixon, Roy Fitz-Gerald, Howard Fitz-Gerald, Neil Weaver and Naomi Morisawa for the responding party.

DECISION OF THE BOARD; April 7, 1994

1. The style of cause is amended to reflect the correct name of the responding party:

"Group 4 C.P.S. Limited".

2. These matters are applications under section 91 of the Labour Relations Act ("the Act"). The Applicant, United Steelworkers of America ("USWA"), in Board File #1644-93-U, filed on August 23, 1993, alleges that the responding party Group 4 C.P.S. Limited ("Group 4 or "successor employer") violated the Act in changing terms and conditions of employ­ment contrary to section 81(2) of the Act. Board File #1582-93-U is an allegation, by USWA, that the termination of Orville Daley, by Group 4 C.P.S., contravened the Act. On January 3, 1994 USWA requested leave of the Board to withdraw the complaint in Board File #1582-93-U. The complaint in Board File #1582-93-U is withdrawn with leave of the Board.

3. On the first day of the hearing, Group 4 C.P.S. stipulated that by operation of law it was the successor employer to Barnes Security Services Ltd. c.o.b. Metropol Security - A division of Barnes Security Services Ltd. ("Barnes-Metropol" or "predecessor employer"). As well, the Board ruled that it would deal with two preliminary issues raised by Group 4 C.P.S. prior to enter­taining the merits of the complaint. Group 4 C.P.S. asked the Board to dismiss the application on two grounds. First, it argued that the delay in bringing the application before the Board was so lengthy that the Board should exercise its discretion and dismiss the complaint; and second, that for section 81 (2) to apply in these circumstances, Group 4 C.P.S. would have had to received notice from the Board, as a condition precedent, of the USWA's application for certification in respect of the predecessor. It is agreed by both parties that Group 4 C.P.S. did not receive "Board notice" of the application for certification prior to the filing of the instant application. The USWA was granted an "interim" certification prior to May 1,1993, the date Group 4 C.P.S. became the successor employer.

4. This matter was heard in Toronto on October 4, 5, 6, 7, and December 6 and 7 1993. The parties adjourned November 22, 25, and 29, 1993. The Board dismissed the Responding Party's delay motion on October 6, 1993. The following are the reasons for the October 6,1993 decision and the decision and reasons for the second preliminary matter raised by the Responding Party.

5. The parties referred to both the Rules of Procedure and sections of the Act that existed prior to S.0 1992, c.21 ("Bill 40") and sections of the Act and Rules of Procedure that existed after the coming into force of Bill 40. The parties also referred to Part XIII.2 (Successor Employers) of the Employment Standards Act, R.S.O. 1990 c.E. 14.

6. The following are the "post-Bill 40", sections of the Act and the Rules of Procedure

referred to by the parties:

Rules

16. Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed state­ment of all material facts relied upon, including the circumstances, what happened, and when and where it happened, and the names of any persons said to have acted improperly.

17. An application or response may not be processed if it does not comply with these Rules.

18. No person will be allowed to present evidence or make any representations at any hearing about any material fact relied upon which the Board considers was not set out in the application or response and filed promptly in the way required by these Rules, except with the permission of the Board. If the Board gives such permission, it may do so on such terms as it considers advisable.

Sections of the Act

64.(i) In this section,

"business" includes one or more parts of a business; ("entreprise")

"predecessor employer" means an employer who sells his, her or its business; ('employeur prcdent")

"sells" includes leases, transfers and any other manner of disposition; ('vend")

"successor employer" means an employer to whom the predecessor employer sells the business. ('employeur qui succ~de")

(1.1) This section applies when a predecessor employer sells a business to a successor employer.

(2) If the predecessor employer is bound by a collective agreement, the successor employer is bound by it as if the successor employer were the predecessor employer, until the Board declares otherwise.

(2.1) If the predecessor employer is a party to any of the following proceedings, the successor employer is a party to the proceeding as if the successor employer were the predecessor employer, until the Board declares otherwise:

1. A proceeding before the Board under any Act.

2. A proceeding before another person or body under this Act or the Hospital Labour Disputes Arbitration Act.

3. A proceeding before the Board or another person or body relating to the collective agreement.

(2.2) If the predecessor employer has given or been given a notice relating to bargaining for a collective agreement or has requested the appointment of a conciliation officer or mediator, the successor employer is considered to have given or been given the notice or to have made the request, until the Board declares otherwise.

(3) If, when the predecessor employer sells the business, a trade union is the bargaining agent for any employees of the predecessor employer, has applied to become their bargaining agent or is attempting to persuade the employees to join the trade union, the trade union continues in the same position in respect of the business as if the successor employer were the predecessor employer.

64.2-(1) This section applies with respect to services provided directly or indirectly by or to a building owner or manager that are related to servicing the premises, including building cleaning services, food services and security services.

(2) This section does not apply with respect to the following services:

1. Construction.

2. Maintenance other than maintenance activities related to cleaning the premises.

3. The production of goods other than goods related to the provision of food services at the premises for consumption on the premises.

(3) For the purposes of section 64, the sale of a business is deemed to have occurred,

(a) if employees perform services at premises that are their principal place of work;

(b) if their employer ceases, in whole or in part, to provide the services at those premises; and

(c) if substantially similar services are subsequently provided at the premises under the direction of another employer.

(4) For the purposes of section 64, the employer referred to in clause (3)(b) is considered to be the predecessor employer and the employer referred to in clause (3)(c) is considered to be the successor employer.

(5) This section shall be deemed to have come into force on the 4th day of June, 1992.

81.-(2) Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privi­lege or duty of the employer or the employees until,

(a) the trade union has given notice under section 14, in which case subsection (1) applies; or

(b) the application for certification by the trade union is dismissed or termi­nated by the Board or withdrawn by the trade union.

The following are the, pre-Bill 40, sections of the Act and Rules of Procedure referred to by the

parties:

Rules

71.-(i) Where an application or complaint does not, in the opinion of the board, make out a prima facie case for the remedy requested, the Board may dismiss the application or complaint without a hearing and it shall in its decision state the reason for the dismissal.

(2) The applicant or complainant may within ten days after he is served with the decision of the Board under subsection (1) request the Board to review its decision.

(3) A request for review under this section shall contain a concise statement of the facts and rea­sons upon which the applicant relies.

(4) Upon a request for review being filed, the Board may,

(a) direct that the application or complaint be re-opened and proceeded with by the Board in accordance with the provisions applicable thereto;

(b) direct the registrar to serve the applicant and any other person who in the opinion of the Board may be affected by the application or complaint with a notice of hearing to show cause why the application or complaint should be re-opened; or

(c) confirm its decision dismissing the application or complaint.

72.-(1) Where a person intends to allege, at the hearing of an application or complaint, improper or irregular conduct by any person, he shall,

(a) include in the application or complaint; or (b) file a notice of intention that shall contain,

a concise statement of the material facts, actions and omissions upon which he intends to rely as constituting such improper or irregular conduct, including the time when and the place where the actions or omissions complained of occurred and the names of the persons who engaged in or committed them, but not the evidence by which the material facts, actions or omissions are to be proved, and, where he alleges that the improper or irregular conduct constitutes a violation of any provision of the Act, he shall include a reference to the section or sections of the Act con­taining such provision.

(2) Where, in the opinion of the Board, a person has not filed notice of intention promptly upon discovering the alleged improper or irregular conduct, he shall not adduce evidence at the hear­ing of the application of such facts, except with the consent of the Board and, if the Board deems it advisable to give such consent, it may do so upon such terms and conditions as it con­siders advisable.

(3) Where a statement in an application or complaint or in any document filed under these Rules in respect of the application or complaint is so indefinite or incomplete as to hamper any person in the preparation of his case, the Board may, upon the request of the person made promptly upon receipt of the application, complaint or document, direct that the information stated be made specific or complete and, if the person so directed fails to comply with the direc­tion, the Board may strike the statement from the application, complaint or document.

(4) No person shall adduce evidence at the hearing of an application or complaint of any mate­rial fact that has not been included in the application or complaint or in any document filed under these Rules in respect of the application or complaint, except with the consent of the Board and, if the Board considers it advisable to give such consent, it may do so upon such terms and conditions as it considers advisable.

The Act

63.-(I) In this section,

(a) "business" includes a part or parts thereof;

(b) "sells" includes leases, transfers and any other manner of disposition, and "sold" and "sale" have corresponding meanings.

(2) Where an employer who is bound by or is a party to a collective agreement with a trade union or council of trade unions sells his business, the person to whom the business has been sold is, until the Board otherwise declares, bound by the collective agreement as if he had been a party thereto and, where an employer sells his business while an application for certification or termination of bargaining rights to which he is a party is before the Board, the person to whom the business has been sold is, until the Board otherwise declares, the employer for the purposes of the application as if he were named as the employer in the application.

(3) Where an employer on behalf of whose employees a trade union or council of trade unions, as the case may be, has been certified as bargaining agent or has given or is entitled to give notice under section 14 or 53, sells his business, the trade union, or council of trade unions con­tinues, until the Board otherwise declares, to be the bargaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business, and the trade union or council of trade unions is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement or the renewal, with or without modifications, of the agreement then in operation and such notice has the same effect as a notice under section 14 or 53, as the case requires.

(4) Where a business was sold to a person and a trade union or council of trade unions was the bargaining agent of any of the employees in such business or a trade union or council of trade unions is the bargaining agent of the employees in any business carried on by the person to whom the business was sold, and,

(a) any question arises as to what constitutes the like bargaining unit referred to in subsection (3); or

(b) any person, trade union or council of trade unions claims that, by virtue of the operation of subsection (2) or (3), a conflict exists between the bargain­ing rights of the trade union or council of trade unions that represented the employees of the predecessor employer and the trade union or council of the trade unions that represents the employees of the person to whom the business was sold,

the Board may, upon the application of any person, trade union or council of trade unions con­cerned,

(c) define the composition of the like bargaining unit referred to in subsection (3) with such modification, if any, as the Board considers necessary; and

(d) amend, to such extent as the Board considers necessary, any bargaining unit in any certificate issued to any trade union or any bargaining unit defined in any collective agreement.

The following are the sections of the Employment Standards Act referred to by the parties:

Part XIII.2

Successor Employers

56.3 In this Part,

"previous employer" means the employer who ceases to provide services at a premises;

"successor employer" means the employer who begins to provide, at the premises, services sub­stantially similar to those provided at a premises by the previous employer.

56.4-(i) This Part applies if one employer ceases to provide particular services at a premises after the 4th day of June, 1992 and another employer begins to provide substantially similar ser­vices at the premises.

(2) This part does not apply if the previous employer sells to the successor employer the busi­ness of providing the services at the premises.

(3) In this section, "services" means services provided directly or indirectly by or to a building owner or manager that are related to servicing the premises, including building cleaning ser­vices, food services and security services but excluding the following:

1. Construction.

2. Maintenance other than maintenance activities related to cleaning the premises.

3. The production of goods other than goods related to the provision of food services at the premises for consumption on the premises.

56.5-(1) This section applies to a manager or owner of a premises who,

(a) ceases to provide particular services at the premises and uses another employer to provide them;

(b) ceases to use an employer to provide particular services at the premises and uses another employer to provide them; or

(c) provides particular services at the premises after ceasing to use another employer to provide them.

(2) The owner or manager, as the case may be, shall notify the employees of the previous employer of the date on which the previous employer ceases to provide the services at the prem­ises.

(3) The notice must be given in writing at least fifteen days before the date on which the previ­ous employer ceases to provide the services.

56.6-(1) If a successor employer replaces a previous employer who is providing services at the premises, the successor employer shall make reasonable offers of available positions to those persons,

(a) who are in a continuing or a recurring and cyclical employment relationship with the previous employer immediately before the successor employer begins providing the services at the premises; and

(b) whose principal place of work with the previous employer is the premises affected by the change in the employer providing the services.

(2) The successor employer shall make offers to the persons employed by the previous employer in descending order of each person's seniority with the previous employer until all positions are filled.

(3) The successor employer is not required to offer positions to persons who are not qualified to perform the services required of them or would not become qualified to do so with a reasonable period of training.

(4) The successor employer shall use every reasonable effort to fill all positions at the premises with persons who are employed by the previous employer before the successor employer offers a position to any other person.

(5) The position offered must consist of performing, at the same premises, the same work that the person did for the previous employer, if such a position is available.

(6) If such a position is not available, the position offered must consist of alternative work that is

comparable having regard to compensation, hours and schedule of work, perquisites, quality of working environment, degree of responsibility, job security and possibility of advancement.

56.7-(i) For the purposes of Parts VII, VIII, XI and XIV, a person employed by the previous employer who accepts a position offered by the successor employer is deemed to have been employed by the successor employer for the period during which he or she was employed by any previous employers.

(2) In subsection (1), "previous employers" includes only the employer who employs the employee of the 4th day of June, 1992 and any successor employers who employ him or her before the successor employer referred to in subsection (1).

56.8-(1) A person who declines a position offered by the successor employer under section 56.6 and who ceases to be employed by the previous employer is deemed, for the purposes of this Act, to have resigned his or her position with the previous employer.

(2) If the successor employer offers the person employment that does not begin immediately after his or her employment with the previous employer ends and the person declines the offer, the person is not deemed to have resigned his or her employment with the previous employer and the successor employer shall comply with Part XIV.

56.9-(1) If the successor employer does not offer a position to a person employed by the previ­ous employer, the successor employer shall comply with Part XIV.

(2) For the purposes of Part XIV, the successor employer, and not the previous employer, is deemed to have been the employer of the person.

56.lO-(1) If an employment standards officer finds that the successor employer failed to offer a position to a person when the successor employer was required to do so under section 56.6, the employment standards officer shall determine whether the person to whom the offer should have been made has suffered a loss of wages and other employment benefits as a result of not receiving the offer and, if so, shall determine the amount of the loss.

(2) An employment standards officer who finds that a job offer made by the successor employer is not a reasonable offer shall determine whether the person to whom the offer was made has suffered a loss of wages and other employment benefits as a result and, if so, shall determine the amount of the loss.

(3) The amount of the loss continues to accumulate until the successor employer makes a rea­sonable offer of employment to the person, until the person is reinstated or until the person notifies the successor employer in writing that he or she no longer wishes to receive an offer, whichever occurs first.

(4) The amount determines to be the loss shall be deemed, for the purposes of this Act, to be wages owing to the person by the successor employer.

(5) A person who may have suffered a loss of wages and other employment benefits is deemed to be an employee of the successor employer for the purpose of pursuing remedies under sec­tions 65, 66, 67 and 68 against the successor employer.

(6) If the successor employer offers a position to the person after an employment standards offi­cer makes a finding under this section against the successor employer and the person to whom the offer is made declines it, the successor employer shall comply with Part XIV.

(7) For the purposes of Part XIV, the successor employer, and not the previous employer, is deemed to have been the employer of the person.

(8) The amount of the successor employer's obligations under Part XIV is calculated using the wage rate earned by the person while he or she was employed by the previous employer.

56.l1-(1) Upon request, an employer providing services at a premises shall give the owner or.the manager of the premises the following information about the employees who are providing the services:

1. A job description for each of the positions held by the employees.

2. The wage rates for each position.

3. The number of persons employed in each position at the premises.

4. A list of persons employed in each position, each person's seniority, and their hours and schedule of work.

5. The name of each employee and his or her address as it appears in the employer's records.

(2) Upon request, the owner or the manager of the premises shall give the information described in subsection (1) about the employees who are providing the services at the premises on the request date,

(a) to a person who becomes a successor employer providing the services; or

(b) to the bargaining agent for employees to whom the owner or manager has

given notice under section 56.5.

(3) Upon request, the owner or the manager of the premises shall give the information described in paragraphs 1 to 4 of subsection (1) about the employees who are providing the ser­vices at the premises on the request date to a person who may become a successor employer providing the services but, in the information described in paragraph 4 of subsection (1), the names of persons employed in each position need not be given.

(4) A person to whom information is given under this section shall use the information only for the purpose of complying with this Part. (5) A person in possession of information given under this section shall not disclose it except as authorized by this section.

(6) The Lieutenant Governor in Council may make regulations,

(a) requiring employers providing services at premises, or requiring owners or managers of premises, to give the information described in subsection (1)

with the Ministry;

(b) governing the filing of information required by regulations made under clause (a).

56.12 If a person fails to comply with the provisions of this Part, an employment standards offi­cer may order what action, if any, the person shall take or what the person shall refrain from doing in order to constitute compliance with this Part and may order what compensation shall be paid by the person to the Director in trust for other persons.

7. In a letter from the Metropolitan Toronto Housing Authority ("MTHA") to Mr. W.R. Fitz-Gerald, President & C.E.O of the Canadian Protection Services Limited (for our purposes Group 4 C.P.S) ated March 9,1993, Group 4 C.P.S. was officially informed that it had become the successor tenderer to Barnes-Metropol, to provide security services to MTHA Districts #1 and #6. The Barnes-Metropol contract was to expire on April 30, 1993 and the Group 4 C.P.S. con­tract was to start on May 1, 1993. The USWA filed an application for certification of Barnes­Metropol on March 22, 1993 (Board File #3732-92-R). The notice to employees was posted on or about March 29, 1993. On April 2, 1993 the Ontario Public Service Employees Union ("OPSEU"), filed an intervention in respect of the application for certification in Board File

#3732-92-R. On April 19, 1993 the Board issued an "interim certificate". At paragraph 9 of that decision the Board ruled:

9. Accordingly, the Board, pursuant to its discretion under section 6(2) of the Act, having regard to the agreement of the parties and pending the final resolution of the composition of the bargaining unit, certifies the applicant as the bargaining agent for all employees of Barnes Secu­rity Services Ltd. employed at Metropolitan Toronto Housing Authority facilities in the Regional Municipality of Metropolitan Toronto, save and except Managers and persons above the rank of Manager, and pending the resolution of the status of the category, excluding as well Field Supervisors and persons above the rank of Field Supervisor.

10. The US WA's application for certification was launched, and an "interim" certification was granted to USWA, after Group 4 C.P.S. had won its tender to provide security services in MTHA Districts #1 and #6, but before the May 1, 1993 security contract start date. The tender documents disclose that the Group 4 C.P.S. "tendered" wage rates that were less in all categories than the Barnes-Metropol wage rates on April 30, 1993.

11. OPSEU's intervention in Board File #3732-92-R, which was withdrawn prior to the granting of the interim certification, informed the parties to that proceeding that Group 4 C.P.S had won the tender to provide security services starting on May 1, 1993 in MTHA Districts #1 and #6. Board File #3732-92-R has proceeded to date without the involvement of Group 4 C.P.S. No party sought to add Group 4 C.P.S. as an interested party.

12. The parties stipulated the following facts. Prior to May 1,1993 Group 4 C.P.S. did a number of things in preparation for assuming the security contract. Group 4 C.P.S. asked some of the Barnes-Metropol employees to apply for jobs and directed them to where they could, get appli­cation forms. These Barnes-Metropol employees were never guaranteed employment by Group 4 C.P.S. Group 4 C.P.S trained some of the Barnes-Metropol employees. At those training sessions the Barnes-Metropol employees were told, by Group 4 CP.S. management, that they were not going to get paid for these sessions, however, sometime after May 1, 1993 these employees were paid for the training sessions. Group 4 C.P.S. eventually hired a number of the Barnes-Metropol security guards who had worked in Districts #1 and #6 to continue in their former positions. These employees had their security guard licences switched from Barnes-Metropol on April 30 1993 to Group 4 C.P.S. on May 1, 1993. Employees of Barnes-Metropol were advised, by both Barnes-Metropol and Group 4 C.P.S., of the termination of the security contract between MTHA and Barnes-Metropol, and returned equipment belonging to Barnes-Metropol at the end of the last shift at midnight April 30, 1993. Only some of the security guards that were hired by Group 4 C.P.S. from Barnes-Metropol were told about reporting times and places, uniform arrangements, wage rates, and benefits prior to May 1, 1993. The employees of Group 4 C.PS. working in MTHA Districts #1 and #6 did not receive their first pay cheque from Group 4 C.P.S. until two weeks after they had started work.

13. The parties called witnesses to deal with an issue arising in respect of the motion to dis­miss the application because of the allegedly lengthy delay in bringing the application. While this evidence may have some utility should there be need for any further proceedings in this matter, the Board in dismissing this motion did not find it necessary to make credibility judgements in respect of the evidence dealing with informal notice. The evidence of Omero Landi, Roy Fitz-Gerald, and Mr. Christie is consistent in respect of the bargaining relationship between Group 4 C.P.S. and USWA throughout the province of Ontario. The evidence of Omero Landi differs from the evi­dence of Roy Fitz-Gerald and Mr. Christie in respect of what was discussed at certain meetings. Mr. Landi testified that during certain meetings in May, he raised the issue of the statutory freeze under the Act and the company's statutory obligations pursuant to the Employment Standards Act, in respect of the employees in MTHA Districts #1 and #6, with Mr. Fitz-Gerald. As well, Mr.Landi testified that on April 5, 1993 he had a phone conversation with Mr. Christie wherein he raised the issue of the statutory freeze under the Act and the company's statutory obligations pur­suant to the Employment Standards Act in respect of Districts #1 and #6. Both Mr. Fitz-Gerald and Mr. Christie deny that conversations involving the company's statutory obligations as they relate to the bargaining unit in Board File #3732-92-R ever took place.

14. The parties made detailed submissions in respect of the delay motion. They referred to the following cases:

Toronto Typographical Union No. 91 v. CCH Canadian Limited, [1977] OLRB Rep. June 351

Dhanota v. International Union United Automobile, Aerospace & Agricul­tural Implement Workers of America, (U.A. W.) Local Union No. 1285 and Sheller-Globe of Canada Ltd., [1982] OLRB Rep. January 113

Daley v. The Amalgamated Transit Union and The Corporation of the City of Mississauga, [1982] OLRB Rep. March 420

Bhanga and Nkrumah v. United Food & Commercial Workers Local #287 and Bonello and Caravelle Foods, [1983] OLRB Rep. June 875

The Mount Nemo Truckers Association, Local 566, Affiliates of the United ement, Lime & Gypsum Workers International Union, AFL-CIO-CLC v. elson Quarry Operation of Genstar Stone Products Inc. et al., [1983] OLRB

Rep. September 1531

United Steelworkers of America v. John T. Hepburn, Limited, [1984] OLRB Rep. January 39

International Brotherhood of Electrical Workers v. Agincourt Electric and/or gincourt Electrical Contracting Company and/or KNK Limited, [1991] LRB Rep. February 209

John Kohut v. The National Automobile, Aerospace and Agricultural Imple­ment Workers' Union of Canada (C.A. W. - Canada) and its Local 303 and General Motors of Canada Limited, [1991] OLRB Rep. December 1367

United Brotherhood of Carpenters and Joiners of America Local Union 785 -K Interior Contracting Ltd., 754762 Ontario Inc. a.k.a. Tn-County Con­tracting et al., [1991] OLRB Rep. December 1416

Canadian Union of Public Employees, Local 3419 v. Harrowood Seniors' Community, [1992] OLRB Rep. February 177

Gary Hopkins v. International Union, United Automobile, Aerospace and gricultural Implement Workers of America, U.A. W., Local 199 v. General otors of Canada Limited, (1985] OLRB Rep. May 684

George Hinkson v. Canadian Conference of Teamsters, Chemical Energy & llied Workers Division, Local 2177, v. BASF Inmont Canada Inc., [1987] LRB Rep. Oct. 1246

Donald Putman, Norman Rae, John McKinnon and Thomas Edward Mon­ger v. Tecumseh Products of Canada, Limited, [1985] OLRB Rep. Jan. 123

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 46 v. Cab­rific Construction Limited v. Millwright District Council, [1988] OLRB Rep. Feb. 115

Cameron Douglas Wonch v. International Union of Operating Engineers Local 793, [1984] OLRB Rep. Nov. 1659

Regina v. W.G.G. (1990), 1990 CanLII 2628 (NL CA), 58 C.C.C. (3d) 263

13. Group 4 C.P.S argued that the delay of three and one-half months affects the case on the merits. The witnesses memories fade. Group 4 C.P.S. will not be able to lead evidence or defend allegations because USWA did not act promptly. Although technically this is a three month and one-half month delay, starting on May 1st, 1993 and stopping with the filing of the instant application on August 23, 1993, in reality, counsel for the responding party submitted, the delay starts on or about March 29, 1993 the day the Board posted the Barnes-Metropol application for certification in Board File #3732-92-R. By that time the security guard community was already aware that Group 4 C.P.S. is going to take over MTHA Districts #1 and #6. As well, all on-site personnel had access to the postings. USWA should have put Group 4 C.P.S. on notice at that time. Certainly, by April 2, 1993 after the Intervention by OPSEU all parties should have known that Group 4 C.P.S. was an interested party. Group 4 C.P.S. only received "Board notice" of Board File #3732-92-R when it received the instant complaint from the Board on August 26, 1993.

14. Between March 9,1993 and May 1, 1993 Group 4 C.P.S. was busily setting up for the imminent successorship. Group 4 C.P.S. had statutory obligations, pursuant to the Employment Standards Act, to meet. Had Group 4 C.P.S known, at an earlier time, that it potentially had to meet statutory obligations under the Act as well, asserted its counsel, it could have governed itself accordingly. As a consequence of not being notified of a certification application in Board File #3732-92-R and the potential obligations that it would be under by operation of the Act, Group 4 C.P.S. was not in a position to make records of the discussions that took place in respect of a "rea­sonable expectations" defence. Further, asserted counsel for Group 4 C.P.S, as a consequence of not being notified it was exposed to retrospective financial liability. This exposure could have been headed off, or at least minimized, if it had been notified about the application for certification. The pressure on Group 4 C.P.S. in respect of its new employees and its labour relations with these new employees have also been affected. (see: The Corporation of the City of Mississauga at paragraph 20 and 22.)

15. Counsel for the responding party submitted that USWA is a sophisticated party with sophisticated legal counsel. When the Board is faced with this type of party before it, then the Board should treat this type of party on a higher standard then the unrepresented unsophisticated litigant. (See: The Corporation of the City of Mississauga, at paragraph 22; Caravelle Foods, at paragraph 10; Tecumseh Products of Canada, Limited, at paragraph 24 and 25).

16. Group 4 C.P.S. asserted that it was unreasonable for the USWA to withhold notice. USWA knew or ought to have known that this situation was going to turn on what the reasonable expectations of the Barnes-Metropol employees were going to be. The Employment Standards Act mandates that a successor employer make reasonable offers of available positions to the employees working for the previous employer. Arguably, "reasonable offers" is a less onerous legal standard then the standard imposed by the statutory freeze. Group 4 C.P.S. did not keep records of conver­sations with employees who were accepting the "reasonable offers". Much of the evidence that could have been preserved was unremarkable at the time. What makes that evidence remarkable is the instant application. Group 4 C.P.S submitted that it has been prejudiced by the responding party's failure to promptly notify it about the certification of Barnes-Metropol. (See: John T. Hep­burn, Limited, supra at paragraph 11.)

17. Group 4 C.P.S. asserted that, before the Board can dismiss the delay motion, the Board must satisfy itself that there has been a reasonable excuse for the delay. (The City of Mississauga, supra; John Kohut, supra; Cameron Douglas Wonch, supra; Tecumseh Products of Canada, Limited, supra)

18. The responding party reviewed many of the cases cited above in paragraph 12 in respect of the length of delay. It was unable to provide the Board with a case which dismissed an applica­tion because of a three month delay. As well, it was unable to provide the Board with a case wherein a party had to provide the Board with a reasonable excuse for a delay of three months.

19. Group 4 C.P.S. asserted that in the post-Bill 40 era, and in particular because of the new Rules of Procedure, there is a greater emphasis on alleging misconduct promptly. The old rules did not contain a rule which would allow the Board not to process the application or response where there is non-compliance with the Rules (Rule 17.) As well, the wording of the "new rules" is "tougher" then the wording of the "old rules".

20. It is clear that Bill 40 has initiated a new era of labour relations in Ontario. The parties argued that there is an expectation that most applications will be dealt with faster. The legislation requires that the Board, in respect of a certain type of application, sit Monday to Thursday week to week until the application is disposed of. The Board on its own has decided to place in its exped­ited process a greater number of types of applications than the statute strictly requires. As well, the Board, through its authority pursuant to section 105 of the Act and its Rules of Procedure, has cre­ated within the labour relations community an expectation of a streamlined process where parties know up front, in full detail, the cases they have to meet. It is in this atmosphere that Group 4 C.P.S. asked the Board to dismiss an application because of a delay of three months.

21. In City of Mississauga, supra, the Board stated at paragraph 22, that delay should be measured in months rather then years:

22. A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and t e reasons for it; when the complainant first became aware of the alleged stat­utory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailabil­ity of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.

23. This is a case about months and not years. This delay motion took two days to argue. Although it is axiomatic that parties can present full argument to the Board on matters preliminary to the merits, here we are dealing with a very short delay, which prior to Bill 40 would have poten­tially raised an issue of prejudice which the responding party could have asked us to deal with remedially by limiting damages if we had found that damages should be awarded against that party.

24. This case presents the Board with a need to balance the parties' need for fairness. The responding party raises issues of prejudice. Group 4 C.P.S. is worried that certain evidence that might be brought forth as a defence to the merits has been lost because the evidence was unre­markable at the time. As well, the financial liability keeps mounting each week and in its view there is no way to mitigate the potential loss. In its view this problem is especially grave because it believed that had it known about the application for certification prior to May 1, 1993 it would have been able to mitigate its potential damages by withdrawing from its security contract with the MTHA. USWA expected that it should have been allowed to litigate this matter without having to defend its actions in respect of a delay of short duration.

25. The Board generally will not refuse to entertain a complaint unless the delay has been for a significant period of time. The Board, in cases of short delay, will usually deal with the delay by taking it into account when considering the extent of compensation or other relief to be given if the complaint succeeds on its merits. (See: John T. Hepburn, Limited, supra; Gary Hopkins, supra)

26. The dismissal of this motion is without prejudice to the right of the responding party to raise this matter as a remedial issue.

27. In respect of the second preliminary issue, the parties presented extensive submissions about the inter-relationship of section 81(2), section 64(2.1), section 64(2.2) and section 64 (3). There are two main arguments raised by the parties in this matter. The first deals with the "flow through", pursuant to section 64(2.1), of the statutory freeze, from the predecessor employer to the successor employer as a consequence of the successor employer being a party to any proceed­ing under the Act that the predecessor employer was a party to. The parties referred to this sce­nario as the successor employer "stepping into the shoes" of the predecessor employer in respect of all proceedings before the Board. The focus of Group 4 C.P.S' argument in that respect is that the "statutory freeze" is not part of any proceeding but rather a separate stand alone section which has not been imported into the statutory language of either section 64 (2.1) or 64 (2.2). The second is the argument of the USWA that it continues in the same position in respect of the business as if the successor employer were the predecessor employer.

28. Section 64 (2.1), 64 (2.2) and 64 (3) are not interdependent sections of the Act. The Board in deciding whether the statutory freeze environment applies to the successor employer found it unnecessary to interpret section 64 (2.1) in relationship to section 81(2).

29. The parties referred to the following cases during their submissions to the Board:

Re Hoogendoorn and Greening Metal Products & Screening Equipment Co.

et al. (1967), 1967 CanLII 20 (SCC), 65 D.L.R. (2d) 641 (S.C.C.)

Re Bradley et al. and Ottawa Professional Fire Fighters Association et al,

[1967] 1967 CanLII 160 (ON CA), 2 OR. 311 (Ont. C.A.)

International Association of Heat and Forest Insulators and Asbestos Work­ers, Local 95 v. Per-fec-tion Insulations Limited et al., [1980] O.L.R.B. Rep. March 352

United Electrical, Radio and Machine Workers of America (UE) v. Tektron Equipment Corporation et al.,[1983] OLRB Rep. Nov. 1932

Wonch v. Rapid Ready Mix, [1985] OLRB Rep. January 104

Teamsters, Chauffeurs, Warehousemen and Helpers, Local 91 v. Trans Conti­nental Printing Inc. et al., [1989] OLRB Rep. November 1187

Christian Labour Association of Canada v. Oxford Manor Rest Home, [1980] OLRB Rep. December 1786

Bartlett v. United Food & Commercial Workers International Union, Local Union 175 and Beaton Supersave Inc. et al.,[1983] OLRB Rep. August 1244

International Beverage Dispensers and Bartenders Union, Local 280 v. New Holiday Tavern et al.,[1987] OLRB Rep. May 753

United Steelworkers of America v. Hawk Security Systems Ltd. v. Wakenhut of Canada Limited, [1993] OLRB Rep. Aug. 751

International Ladies Garment Workers' Union, v. 490296 Ontario Limited, carrying on business as Chandelle Fashions, [1982] OLRB Rep. June 828

United Food and Commercial Workers International Union v. Sunnylea Foods Limited Maple Leaf Egg Products Ltd.; Turkstra 's Eggs Ltd.; Jacob onneveld, [1981] OLRB Rep. Nov. 1640

Davidson - Walker Funeral Homes v. Retail Commercial and Workers' Inter­national Union, [1981] OLRB Rep. Oct. 1359

Timothy W. Smith and William Morton v. Toronto Joint Board Amalgamated lothing & Textile Workers Union Local 1414J, [1984] OLRB Rep. Aug 133 The Toronto Building and Construction Trades Council v. Napev Construc­tion Limited and Vepan Leaseholds Limited, [1976] OLRB Rep. Mar. 109

lnternational Chemical Workers, Local 159 v. Kodak Canada Ltd., [1977] OLRB Rep. Aug. 517

National Association of Broadcast Employees and Technicians on behalf of lenda Newhook and Radio CJYQ-930 Limited, [1979] 1 Can LRBR 180 Dorsey)

Uncle Ben's Industries Ltd. (in Receivership) and Prince George BreweriesLtd ad Canadian Union of United Brewery, Flour, Cereal, Soft Drink and

Distillery Workers, Local 300, [1979] 2 Can LRBR 126 (Maclntyre)

Canadian Brotherhood of Railway, Transport and General Workers and Vic­toria Flying Services Ltd., Cougar Air Incorporated, West Coast Air Services Limited, Juan Air Limited, [1979] 3 Can LRBR 216 (Foisy)

St. Lawrence Seat Authority - Transport Canada and Ponts Champlain et Jac­ques Cartier Incorporee v. Canada Labour Relations Board and Syndicat National des Emplo yes du Port de Montreal, (1979) 31 N.R. 196 (Lalande)

Adam v. Daniel Roy Limit~e 83 CLLC ¶14,064 (Beetz)

Island Paper Mills Ltd. v. MacMillan Bloedel Limited, Noranda Mines Ltd., Canadian Paperworkers Union, Locals 1 and 76, Pulp, Paper and Wood-workers of Canada, Local 8, (1984) Labour Relations Board of British Columbia No. 104/84 Mar. (Kinzie)

Zenon Environmental Inc. v. B.C. Government Employees' Union v. Gov­ernment of the Province of British Columbia, (1992) C74/92 June (Devine)

Man of Aran Ltd. (1974), 1974 CanLII 2278 (ON LA), 6 L.A.C. (2d) 238

Woodbridge Hotel (1976), 1976 CanLII 2221 (ON LA), 13 L.A.C. (2d) 96

29. Group 4 C.P.S. submissions in respect of the notice issue focused on four themes: First, it submitted that it was a denial of natural justice to have the freeze apply to it without having received "Board Notice" because the legislation in respect of 64(3) is not specific enough to include the predecessor's notice. The Board should not find that the words: "the trade union con­tinues in the same position in respect of the business as if the successor employer were the prede­cessor employer", includes the "Board notice" of the certification application received by the pre­decessor employer and consequently the "statutory freeze". Group 4 C.P.S. relies on cases decided by the Board which in effect say that pre-Bill 40 section 63(3) did not vest in the union all ongoing proceedings and rights under the Act as against the successor employer. To do so the legis­lature would have had to be clear and unambiguous in its wording. (See: Davidson - Walker Funeral Homes, supra; Oxford Manor Rest Home, supra; New Holiday Tavern et al., supra; Sunnylea Foods Limited, supra; Man of Aran Ltd., supra, and Woodbridge Hotel, sup ra.)

30. Second, where a party's natural justice rights are being limited, the Board in construing a section of the act must take a narrow literal interpretation. Counsel for Group 4 C.P.S. asked us to interpret section 64(3) in the following way. Section 64(3) is triggered when the predecessor employer sells the business. The section speaks to three scenarios. As a condition precedent, a trade union must be the bargaining agent for the employees of the predecessor, have applied to become their bargaining agent, or is attempting to persuade the employees to join the trade union. The word "position" must be construed narrowly, and relates only to the three situations described above. In respect of this application, asserted counsel for Group 4 C.P.S., the trade union contin­ues to be the bargaining agent for the employees hired by Group 4 C•P.S. on May 1, 1993; how­ever, the section does not include any collateral or penumbral rights that would accrue to the trade union in a situation where "Board notice" has been received only by the predecessor employer and not the successor employer. In other words, the trade union, as bargaining agent for the employees of the predecessor employer in a "statutory freeze" situation, upon the predecessor selling the business to the successor, absent "Board notice" to the successor, loses the "statutory freeze" environment because the "statutory freeze" section of the Act is collateral to the certification pro­cess and has nothing to with the trade union as a bargaining agent simpliciter.

31. Third, in all cases dealing with a parties legal rights, the party whose rights are being affected requires notice, so that the party has the opportunity to present its arguments to the deci­sion-maker prior to the rendering of a decision. (See: Re Hoogendoorn and Greening Metal Prod­ucts & Screening Equipment Co. et al, (supra); Re Bradley et al. and Ottawa Professional Fire Fighters Association et al., supra; Per-fec-tion Insulations Limited et al, supra; Tektron Equipment Corporation et al, supra; Trans Continental Printing Inc., et al, supra; St. Lawrence Seaway Authority-Transport Canada, supra; and MacMillan Bloedel Limited, supra.)

32. Fourth, section 64(2.2) deals directly and squarely with the notice issue. If the legisla­ture wanted the application for certification notice and consequently the statutory freeze environ-ment to flow through to the successor employer from the predecessor employer, it would have done so directly by including that type of notice in section 64(2.2). Section 64(2.2), submitted counsel for the responding party, limits by statute notice "flow through" to one situation. The suc­cessor employer is only bound to notice given to or received by the predecessor employer relating to bargaining for a collective agreement.

33. Counsel for USWA asserted that section 64(3) preserves the status quo in respect of the three scenario s contemplated by the section. When a sale occurs and a trade union is the bargain­ing agent, has applied to be the bargaining agent, or is attempting to persuade the employees to join the trade union, the union continues in the same circumstances as if the successor employer was the predecessor employer. The section, asserted counsel for USWA, creates a continuum of consequences. Consequences do not stop flowing because one of the triggering events has not hap­pened to the successor employer but rather only to the predecessor employer.

34. Whether or not the successor employer requires notice of the earlier proceedings, argued counsel for the USWA, depends on the construction of the section. Section 64(3) allows for the limitation of Group 4 C.P.S.'s natural justice right to notice. Section 64(3), asserted USWA, applies in the instant circumstance without the requirement of any form of notice to Group 4 C.P.S. (See: Man of Aran Ltd., supra and Woodbridge Hotel, supra)

35. In the alternative, asserted the USWA, section 64 is not prospective. The sale of the business was deemed to have occurred on May 1,1993 (see: section 64.2 (3)). Prior to May 1, 1993 Group 4 C.P.S had a commercial interest, not a legal interest, consequently they were not entitled to notice of the certification proceedings. All of the cases referred to by Group 4 C.P.S. in respect of the notice issue, submitted counsel for USWA, deal with the need for notice when a legal inter­est is at stake. The appropriate place to deal with the alleged hardship raised by Group 4. C.P.S. because of the lack of notice, asserted Counsel for USWA, is in the commercial arena. (See: Man of Aran, supra; Napev Construction Limited and Vepan Leaseholds Limited, sup ra; Timothy W. Smith, supra; and Kodak Canada Ltd., supra)

36. The successor rights sections of the Act have undergone significant evolution since they were first enacted in 1963. (see: Labour Relations Amendment Act, S.O. 1962-63, c. 70) The Board in Davidson - Walker Funeral Homes, supra, reviewed the legislative history at paragraphs 10 through 18 of that decision. That decision turns on the wording of then section 63 (3). At para­graphs 23 through 25 of the decision the Board in construing section 63 (3) states:

37. We cannot accept the union's construction of the rights granted by section 63(3) of the Act. Its interpretation would spawn procedures that are unnecessary and which are fundamentally counter to the scheme of bargaining generally contemplated by the Act. In effect, counsel for the union submits that section 63(3) of the Act, by continuing the union's right to bargain for the employees has, in the words of Goldenberg, continued all collective bargaining proceedings as they were before the sale. Neither the history nor the words of the section support that con­clusion.

38. The limited words of section 63(3) of the Act and their piecemeal evolution stand in sharp contrast to the plain words that might have been chosen to impart the intention advanced by the union, and which have been chosen by the Legislature in a different context of successorship. Section 62 of the Act, which deals with the consequences of amalgamation or merger by which one union may become the successor of another, is unequivocal in its terms. Where there has been a merger, amalgamation or transfer or jurisdiction the section vests in the Board the authority to declare that the successor union has "acquired the rights, privileges and duties under this Act of its predecessor" and subsection 3 of section 63 provides:

Where the Board makes an affirmative declaration under subsection (1), the succes­sor shall for the purposes of this Act be conclusively presumed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement or otherwise, and the employer, the successor and the employees concerned shall rec­ognize such status in all respects.

25. The wording chosen by the Legislature to describe the rights of a union vis-a-vis the succes­sor employer where no collective agreement is in effect are obviously more limited. The plain reading of the section leads to the conclusion that the union has what the section gives it, namely the entitlement (in our view a word indistinguishable from "right") to give notice to the new employer of its intention to bargain or make a first collective agreement or to renew and amend a previously expired collective agreement. By the inescapable words of the Act the notice so given for the purposes set out in subsection (10) section 63, has the same effect as cer­tification.

26. The Board in Oxford Manor, supra, found that any freeze of the conditions of employ­ment binding the successor employer was found to originate entirely in the notice to bargain given to the successor employer under what was then section 55(3) of the Act and extended only to con­ditions as they stood at that date. In concluding that section 55(3) did not vest in the union all ongoing proceedings and rights under the Act as against the successor employer the Board stated at paragraph 9 and 10:

27. Section 55(3) is the relevant section in this regard and it reads:

Where an employer on behalf of whose employees a trade union or council of trade unions, as the case may be, has been certified as bargaining agent or has given or is entitled to give notice under section 13 or 45, sells his business, the trade union, or council of trade unions continues, until the Board otherwise declares, to be the bar­gaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business, and the trade union or council of trade unions is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement or the renewal, with or without modifications, of the agreement then in operation and such notice has the same effect as a notice under section 13 of 45, as the case requires.

In essence the trade union, such as in the instant case, continues "to be the bargaining agent for the employees of the person to whom the business was sold" and "is entitled to give to the per­son to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement." Nothing in the section explicitly puts the new employer into the shoes of the previous employer so as to make all the rights and obligations relating to the collective bargaining relationship automatically attach to the new employer. The fact that the Legislature has specifically set out that the trade union shall continue to be the bargaining agent and shall have the right to serve notice to bargain on the new employer, militates against there being any additional rights or privileges from any notice to bargain which may have been served on the previous employer. This view is further fortified by an examination of section 55(2) which, in dealing with a sale of business while an application for certification or termination is before the Board provides "... person to whom the business has been sold is ... the employer for the pur­poses of the application as if he were named as the employer in the application. In this latter case where the Legislature intended that the new employer should fit precisely into the shoes of the previous employer it has explicitly said so. Had the Legislature similarly intended in section 55(3) we have no doubt it would have so said. Such a conclusion, in our view, is well within the rationale of the Board's decision in the case of Hamilton Cotton Company, [1964] OLRB Rep. July 190.

10. In our view, the notice to bargain served on the previous employer on August ii, 1980 effec­tively continued in effect the provisions of section 70(1) insofar as the then employer, up to the time of the sale of business, and the notice of October 28, 1980 similarly brought section 70(1) into operation on that date insofar as the respondent is concerned. During the period between October 8, 1980 when the sale was made and on October 28, 1980 when notice was served on the respondent section 70(1) was not operative. It, therefore, follows that if the lay-off of employees in order to provide work opportunity to Mrs. Fernandez constituted an alteration in terms and conditions of employment (on which we express no opinion) it was not a change in contravention of section 70(1) of the Act.

11. The Oxford Manor, supra and Davidson - Walker Funeral Homes, supra cases contrast sharply with the decisions in Man of Aran ,supra and Woodb ridge Hotel, sup ra. In Man of Aran and Woodbridge Hotel the arbitrators found that the language of the Act supported the collective agreement "flow through" from the predecessor employer to the successor employer thereby cre­ating obligations and liabilities on the successor employer for actions performed by the predecessor employer. However, in Oxford Manor, supra and Davidson - Walker Funeral Homes, supra the Board found that the Act had not evolved to a point where the plain wording of the section would allow the successor employer to be bound to the same notice to bargain (Oxford Manor), or to the same legal strike or lock-out position (Davidson - Walker Funeral Homes),that bound the prede­cessor employer.

12. The Bill 40 changes are another step in the evolution of the successor rights provisions of the Act. The idea that the successor employer should fit precisely into the shoes of the previous employer upon a sale of a business has been the topic of legislative reform since the 1960's. The Goldenberg report on the Construction Industry raised this issue squarely, however successive leg­islative amendments to the Act, have not included the "plain words" to achieve the legislative ends contemplated by the Goldenberg report.

13. Section 64 (3) maintains the status quo between the trade union and the business during three specific types of trade union activity. The phrase, ".. continues in the same position in respect of the business as if the successor employer were the predecessor employer", is clear and unambigu­ous. In essence this section allows the trade union, when engaged in any of the three prescribed activities, to maintain the rights, duties and obligations afforded it under the Act in respect of the successor employer as if the successor employer was the predecessor employer. The legislature used the word "business" to guarantee a specific place to attach the trade union's statutory rights, duties and obligations. Further, the Legislature used the word "position" to ascribe a consequen­tial, circumstantial and spatial quality to the "flow through" of rights, duties and obligations from one employer to the next in respect of the trade union. The successor employer in buying the "business" is also buying an environment, which, under this section of the Act, includes all rights duties and obligations owed to the trade union by the business, and by the business to the trade union.

14. In our view, the Legislature limited the application of 64 (2.2) to two types of notice, because the Legislature was addressing specific "gaps" in the legislation that existed prior to "Bill 40". (see: Oxford Manor, supra and Davidson - Walker Funeral Homes, supra) The parties were unable to advise the Board about any decision, under the pre-Bill 40 legislation, that held that a "gap" existed in respect of the "certification" statutory freeze. In our view, the Legislature, in respect of section 64 (2.2), was attempting to redress a readily identifiable "problem" with the Act. We find that, on the basis of our interpretation of 64(3), the statutory freeze environment applies to the successor employer.

15. Section 64.2 (3) of the Act allows for the deeming of a sale of a business to occur under certain prescribed conditions. This section of the Act is unique because it attaches or anchors bar­gaining rights to work at particular premises. This spatial quality dovetails with the intent of the Act in section 64 (3). In the case at hand, Group 4 C.P.S. stipulated that by operation of 64.2(3) it was the successor employer to Barnes-Metropol.

16. This particular section of the Act was legislated to provide protection to employees in industries that are generally known as "bid" or "tender" industries. (See: 64.2(1)) In other words, employers in these industries are constantly "chasing" work by bidding for contracts against com­petitors. Section 64.2 (3) deems a sale to have occurred in a situation where the predecessor employer and the successor employer are competitors. It is not clear why either employer would ever enter into any discussion about the business prior to the "sale". It might even be in the inter­est of the predecessor employer not to tell the successor employer anything about the labour rela­tions reality at a given premises.

17. An example of the dynamic between predecessor and successor employers in these industries can be seen in the instant case. In the case at hand, the trade union begins and ends its certification drive and in fact is granted an "interim certification" after Group 4 C.P.S. has success­fully tendered, but before the start date of the contract. It is clear that Group 4 C.P.S. had, prior to May 11993, a commercial interest in respect of the MTHA security contract in Districts #1 and #6. As well, all tenderers had some type of commercial interest in respect of the security contract being tendered by the MTHA. At the time of the tendering process, the employees in Districts #1 and #6 had not as yet exercised their right to become a member of a trade union. All tenderers "bid" the contract without any knowledge about statutory obligations under the Act. However, all tenderers knew or ought to have known that after June 4, 1992 (see section 64.2(5)), bargaining rights could attach to a premises and consequently could bind successor employers. As well, they knew or ought to have known that a- trade union could make application for certification against the predecessor employer at any time prior to the successor employer taking over the service con­tract. Further, we note that the Employment Standards Act imposes certain obligations on succes­sor employers. One of these obligations is to make "reasonable offers" to employees of the prede­cessor employer. We also note that the "bid" or "tender" documents did not address these commercial issues. It might very well be the case that all the alleged hardship suffered by Group 4 C.P.S. could have been remedied through the "tendering" documents and process itself.

18. For the foregoing reasons we dismiss the motions brought by the responding party. We direct the Registrar to canvass dates with the parties. We remain seized with this matter and the hearing will continue in respect of all outstanding issues. Further, should the parties request that a Labour Relations Officer meet with them to settle any outstanding issue, prior to the hearing dates, we direct that an Officer be appointed.