[1995] OLRB Rep. February 95
3583-92-R; 3584-92-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) and its Local 222, Applicant v. Charterways Transportation Limited, The Corporation of the Town of Ajax, Responding Parties
BEFORE: Roman Stoykewych, Vice-Chair and Board Members C. O. Shamanski and B. L. Armstrong.
APPEARANCES: L. N. Gottheil, Gord Vickers, Simon Threlkeld and Susan Collins for CAW Local 222; L. Steinberg, B. Quistgaard and Paul Middleton for London and District Service Workers' Union, Local 220; Thomas A. Stefanik, Bill Heslop and Don Dewar for Charterways Transportation Limited; Richard I. Charney, Rick Parisotto and Terry Barnett for The Corporation of the Town of Ajax.
[EDITOR'S NOTE: Subsequent to the publication of the majority decision in this case at [1994] OLRB Rep. Oct. 1296, the following decision of Board Member Shamanski was released on February 22, 1995.]
DECISION OF BOARD MEMBER G. O. SHAMANSKI; February 22, 1995
Having spent considerable time and effort perusing and trying to digest the majority decision in respect to the case at hand, I must dissent.
I don't have any quarrel with the facts as stated in the decision. I do however take umbrage with the slanted interpretation of the facts and the decision that flowed from this interpretation for the following reasons.
Paragraph 6 clearly stated and rightly so that the newly proclaimed provisions of section 64.1(1) of the Labour Relations Act came into effect as of January 1, 1993 and has no application prior to this date.
Paragraph 7 makes it quite clear that Charterways provided and co-ordinated a complement of trained drivers to operate the buses, and a group of mechanics and cleaners to maintain and repair the fleet. They also provided spare parts and fuel for the operation of the buses. This business arrangement provided that Charterways would be compensated as set out in the contract.
Paragraph 17 amplifies that Charterways exercised its entrepreneurial initiative and expertise with respect to operating the transit system for the town of Ajax.
In Paragraph 19, it should be noted that in early 1992 the town voiced its dissatisfaction over the implementation of rate increases set out in the contract, more particularly upon Charterways refusal to voluntarily forego these increases in the ensuing discussion.
The town council voted on July 20, 1992 to terminate the contract with Charterways as of December 31, 1992 and to operate the system. In August of 1992 employees of Charterways got notice that their employment would not be continued beyond the contract date.
It would appear obvious from the town's actions in this respect that they had no intention of renewing Charterways contract with the township.
I would like to turn now to the Board's dealing with the towns compassionate approach to hiring people who would be instrumental in operating the transit line once the town took it over.
The appropriate personnel within the township interviewed and hired a good number of Charterways people who had operated the busses when Charterways had the contract. I don't see anything wrong with the township's deliberations in this respect. It seems to me that had they not hired these people there would have been an anti-union animus charge hurled at them and I suggest this Board would have supported a finding of just that.
It seems to me that an employer is damned if he does and damned if he don't when appearing before this Board in respect to defending itself under the provisions of Bill 40 of the Act.
In conclusion, I would have ruled that the town's hiring of certain employees of Charterways was a humanitarian act and did not constitute a transfer of an essential element of that business.
I am satisfied that section 64.1 (1) had no role to play in this transaction as it took place prior to January 1, 1993. I would therefore dismiss the union's application.