Labourers' International Union of North America, Local 1059 v. The Cadillac Fairview Corporation Limited, 1997 CanLII 15514

[1997] OLRB REP. MARCH/APRIL 187

1949-96-M Labourers' International Union of North America, Local 1059 ("The Union"), Applicant v. The Cadillac Fairview Corporation Limited ("Cadillac Fair-view") and Oakdale Cleaners & Maintenance Limited ("Oakdale"), Responding Parties

BEFORE: R. O. MacDowell, Chair, and Board Members J. A. Rundle and D. A. Patterson.

APPEARANCES: Mark I. Lewis and Irena Nowicki for the applicant; Patti Bomferro, Christine Cowan and Scott Baird for Cadillac Fairview; no one for Oakdale Cleaners.

DECISION OF R. O. MacDOWELL, CHAIR, AND BOARD MEMBER D. A. PATTERSON; April 4, 1997

I - The Ministerial Reference

1. This is a reference from the Minister of Labour that comes before the Board under section 115 of the Labour Relations Act, 1995. That section reads as follows:

2. (1) The Minister may refer to the Board any question which in his or her opinion relates to the exercise of his or her powers under this Act and the Board shall report its decision on the question.

(2) If the Minister refers to the Board a question involving the applicability of section 68 (declaration of successor union) or 69 (sale of a business), the Board has the powers it would have if an interested party had applied to the Board for such a determination and may give such directions as to the conduct of its proceedings as it considers advisable.

2. The Minister's reference is framed this way:

3. On April 2, 1996, the Union requested the appointment of a conciliation officer pursuant to section 18 of the Labour Relations Act, 1995 ("Act").

4. By letters dated June 10 and July 25, 1996, Cadillac Fairview objected to the appointment of the conciliation officer.

5. On or about June 1, 1993, the Union was certified as the bargaining agent for all cleaning staff of Cadillac Fairview at Masonville Place, 1680 Richmond Street, London, Ontario. The Union and Cadillac Fairview entered into a collective agreement effective from September 1, 1993 to June 30, 1996.

6. In or about June 1995, the cleaning work at Masonville Place was contracted out to Oakdale Cleaners. By letter dated June 1, 1995, Cadillac Fairview informed the Union that Oakdale Cleaners will become the successor employer for the cleaning staff effective June 17, 1995.

7. According to the Application for the Appointment of a Conciliation Officer, the Union gave written notice to bargain to Cadillac Fairview on April 1, 1996.

8. By letters dated June 10 and July 25, 1996, Cadillac Fairview objected to the appointment of a conciliation officer on the ground that the Union no longer has any collective bargaining or other representation rights in connection with the cleaning staff of Cadillac Fairview at Masonville Place.

9. In response, the Union by letter dated June 28, 1996 takes the position that contracting Out the cleaning work at Masonville Place does not extinguish the Union's bargaining rights or the collective agreement in place between the Union and Cadillac Fairview.

10. The Minister is of the opinion that the circumstances surrounding the request by the Union raise a question as to her authority to appoint a conciliation officer in this matter.

Accordingly, the following question is referred to the Ontario Labour Relations Board for its advice:

Does the Minister of Labour have the authority to make the requested appoint­ment of a conciliation officer?

3. The answer to the Minister's question depends upon whether the Union has a continuing collective bargaining relationship with Cadillac Fairview, and whether the Union and Cadillac Fairview are obliged to engage in negotiations with a view to concluding a collective agreement. If these conditions obtain, then the Minister can appoint a conciliation officer to assist the parties in their negotiating process.

4. The background is not really in dispute.

II - Background

5. Cadillac Fairview owns and operates a shopping mall in the City of London known as “Masonville Place". The mall buildings have to be cleaned on a regular basis. In order to get this cleaning done, Cadillac Fairview has several options: Cadillac Fairview can use its own employees to do the work; Cadillac Fairview can engage the services of an outside cleaning contractor which will use it's own employees; or Cadillac Fairview can divide the cleaning work between its own employees and those of an outside contractor.

6. In recent years, there has always been an outside contractor on the scene performing at least some of the cleaning work at Masonville Place. The cleaning work at Masonville Place has never been done exclusively by employees of Cadillac Fairview. However, since June 1995, no Cadillac Fairview employees have been involved at all.

7. It is Cadillac Fairview's decision not to do any of the cleaning work itself which leads to the issue posed by the Minister.

8. In or about June 1, 1993, the Union was certified by the Ontario Labour Relations Board as bargaining agent for a "bargaining unit" described as follows:

“all cleaning staff of Cadillac Fairview Corporation Limited at Masonville Place, 1680 Richmond Street in the City of London, save and except forepersons, persons above the rank of Foreperson, office and clerical staff, retail, technical and sales staff, security guards, maintenance staff and staff employed at Links Indoor Miniature Golf Course."

As will be seen, this bargaining unit comprises cleaners working for Cadillac Fairview at Masonville Place. Those cleaners, whatever that number, are represented by the Union.

9. At the time of the certification, there were, of course, a number of Cadillac Fairview employees doing cleaning work at Masonville Place. That is why the trade union was able to make its certification application. However, we should note that, at the time of the Union's certification, there was also an outside contractor on the scene. So called "night cleaning work" was performed by a subcontractor known as Oakdale Cleaners and Maintenance Ltd. ("Oakdale"). It still is.

10. Oakdale has its own employees, its own separate collective bargaining relationship with the Union, and its own collective agreement covering Oakdale employees working at Masonville Place. Oakdale's last collective agreement with the Union (now expired) ran from September 1993 to June 1996. Oakdale's current collective agreement with the Union runs from July 1996 to the end of May 1998.

11. Following the Cadillac Fairview certification in June 1993, the Union and Cadillac Fairview entered into negotiations for a collective agreement to cover the Cadillac Fairview employees doing cleaning at Masonville Place. Those negotiations were unsuccessful and, eventually, the terms of a first collective agreement were settled by arbitration. That first collective agreement ran from September 1, 1993 to June 30, 1996, and contains a recognition clause that mirrors the bargaining unit set out in the OLRB certificate. The agreement confirms that the Union is the exclusive bargaining agent for cleaners employed by Cadillac Fairview at Masonville Place.

12. It appears that in December1994 Cadillac Fairview expanded the number of its own employees engaged in cleaning work by taking on some employees who had formerly worked on the site for a firm call Martin Building and Maintenance. Such expansion would have increased the size of the Union's Cadillac Fairview bargaining unit. On the other hand, the Union asserts that between 1993 and 1995 certain cleaning work was "contracted out" as well. This would decrease the size of the Union's bargaining unit of Cadillac Fairview employees. Nothing turns on these fluctuations, save that they illustrate the point mentioned above: as owner of the mall, Cadillac Fairview could have the work performed by its own employees, or could use the services of an outside cleaning contractor, or could divide the work between its own employees and those of an outside contractor. And, if Cadillac Fairview chose to use its own employees, they would fall within the scope of Cadillac Fairview's collective agreement with the Union.

13. In June 1995, Cadillac Fairview advised the Union that it would no longer be doing any cleaning work in the mall with its own employees. Cadillac Fairview told the Union that the work formerly performed by Cadillac Fairview employees would henceforth be performed by Oakdale with Oakdale's own forces. As a s mid-June 1995, therefore, the Cadillac Fairview bargaining unit was "empty" (if it continued to exist at all - see below) because Cadillac Fairview no longer employed any workers doing cleaning at Masonville Place. Conversely, Oakdale had more work to do with its own labour force under its own collective agreement.

14. It is common ground that the transfer of work from Cadillac Fairview as "owner", to Oakville as "contractor" would constitute a "deemed sale of the business" within the meaning of section 64.2 of the Labour Relations Act - a provision of "Bill 40" that was in force in June 1995, at the time of the transfer. (It has since been repealed.) Since Bill 40 "deemed" this transfer of work to be a "sale of the business" between Cadillac Fairview as "predecessor" and Oakdale as "successor", section 64(2) of the Act applied to bind Oakdale to the Cadillac Fairview collective agreement. Section 64(2) of Bill 40 read this way:

"If the predecessor employer [Cadillac Fairview] is bound by a collective agreement, the successor employer [Oakdale] is bound by it as if the successor employer were the predecessor employer, until the Board declares otherwise."

The Act (then and now) went on to give the Board a variety of powers to sort out any conflicting bargaining or collective agreement rights that resulted from the operation of the successorship provi­sions of the statute (see Bill 40 section 64(2.1)-(13), and compare the current statute sections 69(3)-(13)).

15. However, as it turned out, there was no application to the Board to sort our conflicting bargaining rights, or to redefine the bargaining unit perimeter, or to "otherwise declare" something different from the consequences of successorship spelled out in section 64(2), reproduced above. In particular, there was no application by Cadillac Fairview to question, revise or terminate either the 1993-1996 collective agreement with the Union or the Union's bargaining rights. There were no applications to the Board at all. The Union and Oakdale sorted out the situation in a manner satisfactory to themselves, without any application to the Board.

16. Essentially, Oakdale agreed to hire the workers formerly employed by Cadillac Fairview at Masonville Place and "to abide by and be bound to all the terms of the collective agreement between the Union and Cadillac Fairview Corporation Limited, as if an original party thereto". We do not know what that means in practice, but no one at Oakdale has raised any concerns about it. And, of course, Cadillac Fairview no longer has employees doing cleaning work at Masonville Place.

17. As we have already noted, the collective agreement between the Union and Cadillac Fairview had a term of operation from September 1, 1993 to June 30, 1996. On April 4, 1996, the Union gave notice of its desire to commence bargaining for a new collective agreement that would be applicable to cleaners at Masonville Place, in the event that Cadillac Fairview employed such cleaners as it had done in the past. Article 25 of the collective agreement provides:

ARTICLE 25 - DURATION OF AGREEMENT

25.01 This Agreement shall continue in full force and effect from September I, 1993 until June 30, 1996. and thereafter shall be automatically renewed and remain in force from year to year from its expiration date, unless, within the period of ninety (90) days before the Agreement ceases to operate, either party gives notice in writing to the other party of its desire to bargain with a view to the renewal with or without modifications of the Agreement.

25.02 On receipt of such notice, the parties to the Agreement shall convene a meeting within fifteen (15) days and bargain in good faith to endeavour to reach an agreement.

18. Cadillac Fairview replied that the Union no longer had bargaining rights in respect of Masonville Place and, further, that the Union had not had any bargaining rights since June 1995, when the last cleaning work was transferred to Oakdale. Cadillac Fairview took the position that it was not required to bargain with the Union.

19. No collective bargaining has taken place. The Union has requested the appointment of a Conciliation Officer pursuant to section 18 of the Labour Relations Act, 1995:

20. (1) Where notice has been given under section 16 or 59, the Minister, upon the request of either party, shall appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement.

It is that request which prompted the Minister's reference to the Board.

20. There is no indication that Cadillac Fairview has any plans to use its own employees to do cleaning work at Masonville Place. Accordingly, if the Union retains bargaining rights at that location, any collective bargaining would be undertaken in respect of a bargaining unit that is currently "empty". As things now stand, there are no employees to whom any new collective agreement could apply. On the other hand, Cadillac Fairview could easily employ such workers, as it has done from time to time in the past.

III - Discussion

21. We might begin by observing that "bargaining rights" are a creature of statute. There is no common law foundation for the Union's exclusive bargaining agency. That concept is created by and rooted in the statute. And, the statute prescribes, in considerable detail, how (and when) such statutory rights may be acquired, exercised or terminated.

22. A trade union can be "certified" as the exclusive bargaining agent for a group of employees called a "bargaining unit" when a majority of those employees want the trade union to represent them. Certification gives the union bargaining rights - which is to say, confers on the union the status of exclusive bargaining agent, and the right to represent a group of employees for collective bargaining purposes. Thereafter, it does not matter if there is a change in the composition or identity of employees in the bargaining unit - as Laskin J. noted in Terra Nova Motor Inn Ltd., 74 CLLC ¶114253:

At the risk of being unnecessarily obvious. I must point out that the taking of a count of employees in order to satisfy certification requirements of proof that a majority are members of the applicant union does not mean that the certification and the union's status as bargaining agent continue to depend on the very employees remaining in the employer's employ. Fixing the number of em~lbyees as of a particular time to enable a count to be made does not mean that the certificate which a union may obtain on that basis is tied to the identical employees or to that number. The subsequent enlargement or contraction of the work force does not alone affect the validity of the certificate and indeed, once a collective agreement is negotiated the certificate has served its purpose and is. for all practical purposes, spent.

Once bargaining rights are established, the size of the unit can expand or contract without affecting those bargaining rights.

23. The procedure for terminating bargaining rights is found in sections 63-66 of the Labour Relations Act, 1995. Briefly put, a union's bargaining rights can be terminated if there is a timely application by employees (section 63 plus section 67), if the original certificate was obtained by fraud (section 64), or if the union "sleeps on its bargaining rights" - that is, if the union fails to give a timely notice to bargain, or having given such notice, allows 60 days to go by without seeking to bargain. In addition, a trade union may have slept on its rights for so long that the Board can properly conclude, as a fact, that its bargaining rights have been abandoned and no longer exist (see the decision of the Divisional Court in Re Hugh Murray Ltd. (1982), 1980 CanLII 1826 (ON HCJ), 125 D.L.R. (3rd) 568). These are the circumstances in which bargaining rights may be terminated by a declaration of the Board.

24. None of these termination provisions or principles are applicable in this case. The Union acquired bargaining rights by certification in 1993, but thereafter, no one sought to engage the termination provisions of the Act to bring an end to the Union's status as bargaining agent. Nor has the Union "slept on" or abandoned its bargaining rights. On the contrary. The Union is trying to assert its bargaining rights by giving timely notice to bargain pursuant to both article 25.01 of the 1993-1996 collective agreement with Cadillac Fairview and section 59 of the Labour Relations Act, 1995.

25. There has been no application to terminate the Union's bargaining rights, and there is no obvious reason why its bargaining rights or collective agreement have disappeared. Both parties to that agreement continue to exist. Neither of them has dissolved. Moreover, under section 58(3) of the Labour Relations Act, 1995, a collective agreement cannot be terminated by the parties before its ceases to operate in accordance with its provisions without the consent of the Labour Relations Board on the joint application of the parties. Neither of the parties has applied to the Board for early termination of the agreement, and no one suggests that the collective agreement is void because of employer interfer­ence or other impropriety (see section 53 of the Act). Finally, as the Court of Appeal noted in Re Brayshaws Steel Ltd. and United Steelworkers of America (1972), 1971 CanLII 364 (ON CA), 26 D.L.R. (3rd) 153, the Board has no inherent jurisdiction to determine that a valid collective agreement is inoperative. That result can only obtain in accordance with the terms of the statute (for example, if the Board so declares following a successful termination application - see section 63(13) of the Labour Relations Act, 1995.

26. In summary, the Union's bargaining rights rest upon its 1993 certificate and the 1993-1996 collective agreement; and both foundations remain undisturbed. There has been no application to terminate the Union's bargaining rights or collective agreement and, so far as we can see, no platform for making such application. Nor have the Union or employer done anything to bring the bargaining rights or collective agreement to an end.

27. Did the ~~dcemed sale of a business" from Cadillac Fairview to Oakdale in 1995 terminate the Union's bargaining rights with Cadillac Fairview and wipe out its collective agreement? We do not think so. That is not what the successor provisions said in 1995, nor is it a necessary implication from the statutory language, then or now.

28. Under the section of the Act in force in June 1995, Oakdale, ("the successor") became bound by the Cadillac Fairview collective agreement as if it were Cadillac Fairview ("the predecessor") - until the Board declares otherwise. The section binds Oakdale to Cadillac Fairview's obligations. But the section does not relieve Cadillac Fairview of those obligations, or terminate Cadillac Fairview's collective agreement. As the Board observed in Cabral Foods Inc., [1985] OLRB Rep. Feb. 165 at paragraph 9:

…..Furthermore, section 63 [section 64 in 1995 and now section 69] does not extinguish any of the predecessor employer's collective bargaining or collective agreement obligations. When a sale occurs during the term of a collective agreement covering a unit of employees of the predecessor engaged in the sole business, the result of the operation of section 63 is that a separate collective agreement is effectively created between the successor and the Union party to that agreement, covering persons employed by the successor in the sole business. There will then be two collective agreements and two collective bargaining relationships when once there was only one. Of course, one of those agreements will have nothing to operate on if the predecessor no longer has employees who fall within its bargaining unit description, but the absence of such employees no more terminates the predecessor's obligations than it would if a sale had not taken place.

29. The fact that the bargaining unit is empty may seem a little unusual (although, perhaps, not so unusual these days, as plants shut down and reopen in response to commercial pressure). But the absence of employees in a bargaining unit does not, in itself, result in either a termination of bargaining rights, or the cancellation of any collective agreement pertaining to that undertaking.

30. Earlier on, we noted that following the transfer of work to Oakdale in June 1995, no one came to the Board for clarification of how the successor rights provisions applied. We might also note, therefore, that the successorship provisions do contemplate a termination of bargaining rights in at least some circumstances. That can occur if the successor changes the character of the business, or if the successor intermingles the employees of the acquired business with another of its businesses. In both cases, the Board may terminate bargaining rights on the application of an interested party. So the notion of terminating bargaining rights is not completely foreign to the successorship framework. But the sections contemplating termination of bargaining rights do not give that option to the predecessor employer; and the fact that the successorship provisions contemplate terminating bargaining rights in specific circumstances makes it much more difficult to "imply" that result in other circumstances.

3 I. The successorship provisions deal with the assumption of obligations by a successor. They do not cancel the obligations of a predecessor. And, we are reluctant to "read in" such consequence which the legislature could have provided for, but did not.

32. We are satisfied, therefore, that the deemed sale to Oakdale in 1995 did not terminate the Union's bargaining right or its collective agreement with Cadillac Fairview. Accordingly, the Union was entitled to give notice to bargain in accordance with section 59 of the Labour Relations Act, 1995 and article 25 of the collective agreement.

33. We recognize, of course, that collective bargaining in respect of an empty bargaining unit poses both practical and legal difficulties - particularly in the present statutory regime. Because there are no employees actively at work in the bargaining unit, it may be difficult to formulate demands, since, at most, the Union would be negotiating about the terms upon which new employees would be hired at some time in the future. That exercise is somewhat speculative, and since there are no employees to go on strike, there may not be much pressure on the employer to make concessions. Nor is it clear how the new collective agreement could be ratified - a mandatory requirement before a proposed collective agreement can come into effect (see section 44 of the Labour Relations Act, 1995). In other words, it is not clear that bargaining would make much progress, or that the bargaining process could be finalized.

34. On the other hand, there is nothing unusual about a trade union negotiating contract language governing the terms on which new employees will be hired. That is a common feature of collective agreements in the construction industry where the labour force is particularly volatile; however, any contract language will have that effect when the work force is likely to grow. Moreover, given the ease with which Cadillac Fairview can transfer work to outside contractors, or take it back again, it would not be surprising if the Union wished to bargain restrictions on those transfers, or provisions which discouraged them. Conversely, it is conceivable that the Union might wish to bargain rates below those charged by outside contractors, so as to encourage Cadillac Fairview to bring the work back - that is to hire its own employees rather than subcontracting the work to firms like Oakdale.

35. We do not think that it is useful to speculate. While the empty bargaining unit poses a practical and legal difficulty, we cannot say that there is nothing to bargain about at all, or that bargaining would be completely pointless or futile. And the fact that the Union may not be able to make much progress or may not be able to conclude a collective agreement, does not mean that the bargaining process should not start or that a Conciliation Officer would be of no assistance.

36. Counsel for Cadillac Fairview asked, parenthetically: "How long will these bargaining rights subsist'? Is the company obliged to bargain forever in respect of an empty bargaining unit'?"

37. There is much to be said for this concern. However, at this stage, it is unwise to speculate on the extent of the employer's future obligations, or the way in which various statutory provisions might impinge upon them. For the fact is, the disposition of work at this location is extremely fluid, the "emptiness" of the bargaining unit is relatively recent, and there is no undertaking from Cadillac Fairview that the work will not be shifted back to the bargaining unit with the same ease that it was shifted in the other direction. This is not like the "sale" of an industrial plant which, once finally disposed off, is unlikely to be reacquired. One cannot at this stage say that the bargaining unit will remain empty any more than one can characterize bargaining as a totally academic exercise. And, any burden on the employer can be relieved by giving a sensible reading to the section 17 "duty to bargain", and by keeping in mind that it may not be possible to complete the bargaining process. But, we repeat, this does not mean that there is no point to bargaining at all.

38. For the foregoing reasons, while we have some reservations about the utility or finality of any bargaining process engaged in at this time, we are satisfied that the Union does retain bargaining rights, that there is a right to engage in bargaining, and that there is the right to request the assistance of a Conciliation Officer.

IV - Advice to the Minister

39. In her reference, the Minister of Labour has posed the following question:

"Does the Minister of Labour have the authority to make the requested appointment of a Concilia­tion Officer?"

40. In our view, the answer to that question is: yes.

DECISION OF BOARD MEMBER J. A. RUNDLE; April 4, 1997

1. The union contends that Cadillac Fairview's contracting out the cleaning work at Masonville Place does not extinguish the union's bargaining rights or the collective agreement in place between the parties. This is probably a technically correct result: there is a continuing collective bargaining relationship between the union and Cadillac Fairview. Obviously, the union is arguing that Cadillac Fairview is therefore obliged to engage in negotiations with it with a view to concluding a new collective agreement. The question one is left with, however, is: on whose behalf will the bargaining agent be negotiating'?

2. The agent (Labourers' International Union of North America, Local 1059) was duly certified to represent the Cadillac Fairview employees at Masonville place and in order to become certified, it had to have employees in the unit who would have chosen it to be their agent in the first place. The decision states at paragraph 9: "This is why the trade union was able to make its certification application".

3. When Cadillac Fairview contracted out its cleaning functions to Oakdale, a deemed sale of a business occurred pursuant to section 64.2 of the old Act, which was in place at the time of the transfer. Paragraph 16 of the decision states:

4. Essentially, Oakdale agreed to hire the workers formerly employed by Cadillac Fairview at Masonville Place and "to abide by and be bound to all the terms of the collective agreement between the Union and Cadillac Fairview Corporation Limited, as if an original party thereto". We do not know what that means in practice, but no one at Oakdale has raised any concerns about it. And, of course, Cadillac Fairview no longer has employees doing cleaning work at Masonville Place.

5. It seems obvious what that means in practice: the employees are now employed by Oakdale and Oakdale should consider itself the signatory between the union and Cadillac Fairview. Such conduct is reflected in both the old statute and the new. Subsection 64(2) of the old Act stated:

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.

The new Act elaborates on this provision, but its essence remains the same: subsection 69(2) now states in part:

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, her or its business, the person to whom the business has been sold is, until the Board otherwise declares, bound by the collective agreement as if the person had been a party thereto

[emphasis added]

5. The new Act further provides that the union is entitled to serve its notice of desire to bargain on the successor employer; subsection 69(3) states:

(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 16 or 59, sells his, her or its 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 16 or 59, as the case requires.

Under section 69(3), if the union continues to be the bargaining agent for the employees, following what under Bill 40 was deemed to be a "sale of a business", the union should be giving notice to Oakdale under section 59.

6. The Act contemplates a termination of bargaining rights in circumstances where the succes­sor causes a change in the employment relationship. This assumes the bargaining rights have been (deemed) transferred to the successor. The Board should not be endorsing the appointment of a conciliation officer at this time. The successorship having occurred, and the original bargaining unit being "empty", practical reality dictates that bargaining should be undertaken by those parties with something at stake in the process. The Board should not engage in speculation; indeed, speculation should not be countenanced when a practical solution is available that would neither prolong the negotiations nor make an absurdity of the statute.

7. The concept of "agent" assumes a principal on whose behalf the agent speaks or negotiates. The Terra Nova Motor Inn Ltd., 74 CLLC ¶14,253 decision speaks to expanding and contracting bargaining units. It does not contemplate an absence of employees. While both parties to the collective agreement continue to exist, the bargaining agent has no employees in its unit. In paragraph 26, the draft decision states: "[t]here has been no application to terminate the Union's bargaining rights or collective agreement and, so far as we can see, no platform for making such an application". What is absent is the platform to negotiate. The agent has no employees on whose behalf it can speak. The emperor has no clothes. The majority decision acknowledges that an empty bargaining unit is unusual. Equally unusual is a bargaining agent giving notice of its desire to bargain in the absence of employees in the unit.

8. If obligations of the predecessor are not cancelled, there arises the prospect of two agents bargaining for the same employees. This is the prospect which the excerpt from the Cabral Foods Inc., [1985] OLRB Rep. Feb. 165 at paragraph 28 of the decision addresses; for ease of reference, I reproduce the cite:

……Furthermore, section 63 [section 64 in 1995 and now section 69] does not extinguish any of the predecessor employer's collective bargaining or collective agreement obligations. When a sale occurs during the term of a collective agreement covering a unit of employees of the predecessor engaged in the sole business, the result of the operation of section 63 is that a separate collective agreement is effectively created between the successor and the Union party to that agreement, covering persons employed by the successor in the sole business. There will then be two collective agreements and two collective bargaining relationships when once there was only one. Of course, one of those agreements will have nothing to operate on if the predecessor no longer has employees who fall within its bargaining unit description, but the absence of such employees no more terminates the predecessor's obligations than it would if a sale had not taken place.

With respect, while the survival of the predecessor's bargaining rights might be technically correct, one cannot pretend a sale has not taken place when in fact a sale has (or has been deemed to have) taken place. Two collective bargaining relationships have been created. One of those relationships has "nothing to operate on" by virtue of its empty unit, no platform on which to negotiate.

9. Allowing both relationships to subsist leads to an absurdity, and the Labour Relations Act speaks to this by precluding the existence of two simultaneous collective agreements. Section 55 states:

There shall be only one collective agreement at a time between a trade union or council of trade unions and an employer or employers' organization with respect to the employees in the bargaining unit defined in the collective agreement.

Conceivably, at Masonville Place, there could have been two collective bargaining relationships as between the union (with separately defined bargaining units) and two employers (Cadillac Fairview and Oakdale). Once one employer has divested itself of its employees, vacating the bargaining unit, only one should be allowed to survive.

10. The Board should determine whose or which relationship should be allowed to exist. Until the propriety of the bargaining parties has been established, the appointment of a conciliation officer is premature. The Minister's question should be answered in the negative.

11. It could further be argued that Cadillac Fairview with no employees in the work force at Masonville Place, would have been content - indeed, was content - to let the collective agreement lapse. Article 25 of the agreement states, in part:

25.01 This Agreement shall continue in full force and effect from September 1, 1993 until June 30, 1996. and thereafter shall be automatically renewed and remain in force from year to year from its expiration date, unless, within the period of ninety (90) days before the Agreement ceases to operate, either party gives notice in writing to the other party of its desire to bargain with a view to the renewal with or without modifications of the Agreement.

This provision gives automatic life to an agreement after its date of expiration in the event that the parties to it do nothing toward a renewal of the agreement. In the instant case, the agreement arguably expired on June 30, 1996, precisely because the union exercised its right to give notice of desire to bargain within the specified period. Cadillac Fairview perhaps correctly asks: "How long will these bargaining rights subsist? Is the company obliged to bargain forever in respect of an empty bargaining unit"'?

12. Bargaining will indeed be an "academic exercise" to use the words of the majority - when no effective conclusion is foreseeable: that is, there is no one in the unit to ratify a newly-negotiated agreement. Furthermore, on whose behalf will the negotiations take place? What kinds of demands can the bargaining agent make of the employer when there are no instructing principals to formulate the demands? By vacating its bargaining unit, the bargaining agent has relinquished its de facto rights. The majority is apt in questioning the utility of the bargaining process; the appointment of a conciliation officer will merely underscore the futility of the exercise.

13. For the above reasons, I would have answered the question posed by the Minister in the negative.