[1997] OLRB REP. JANUARY/FEBRUARY 129
0092-96-R; 0158-96-R; 0374-96-R; 0375-96-U; 1756-96-R London and District Service Workers Union, Local 220, Applicant v. Rogers Cantel Paging Inc., Responding Party; Communications, Energy & Paperworkers Union of Canada, Applicant v. Rogers Cantel Paging Inc. and MacLean Hunter Communications Inc. and AAS Telecommunications Services Limited and Cross Connect Communications and Services, Responding Parties; London and District Service Workers Union, Local 220, Applicant v. AAS Telecommunications Services Ltd., Answer North America, Cross Connect Communications Services Limited, Active Answering Services, Norman Rhora, Responding Parties; London and District Service Workers Union, Local 220, Applicant v. Rogers Cantel and AAS Telecommunications Services Ltd., Answer North America, Cross Connect Communications Systems Limited, Active Answering Services, Norman Rhora, Responding Parties; Communications, Energy & Paperworkers Union of Canada, Applicant v. AAS Telecommunications Services Limited, Cross Connect Communications and Services, Cross Connect Communications Service Limited, 1165455 Ontario Inc. c.o.b. as Active Answering Service, Answer North America, Norman Rhora, Responding Parties
BEFORE: Timothy W. Sargeant, Vice-Chair, and Board Members W H. Wightmnan and P R. Seville.
APPEARANCES: Sean Fitzpatrick for Communications Energy & Paperworkers Union of Canada; Jim Renaud for London & District Service Workers Union, Local 220; David Ivey for Active Answering Services; Alison E. Renton for Rogers Cantel Paging Inc., Norm Rhora for AAS Telecommunications Services Ltd.
DECISION OF THE BOARD; February 3, 1997
These files were consolidated to be heard together before a panel. A preliminary issue was raised as the jurisdiction of the Board to hear these matters. The panel heard evidence on the preliminary issue on September 25, 26 and 27. The panel reconvened on December 16, 1996, to complete the evidence on this issue and to hear argument.
There are five applications before this panel, arising out of purported sale of a business from the respondent, Rogers Cantel Mobile Inc. ("Rogers") to the respondent AAS Telecommunications Services Limited ("AAS").
As a preliminary objection, Rogers takes the position that this Board has no jurisdiction under section 69 as this was a sale from a federal undertaking.
The Board heard from one witness, Mr. Mark Wilson, Manager of Human Resources for Rogers. Essentially for the purposes of the preliminary decision the facts were not in dispute.
The purported sale dealt with two locations of Rogers, one at London which is organized by the Communications, Energy & Paperworkers Union of Canada (CEP) and the other at Sarnia which is organized by the London and District Service Workers Union, Local 220 (Local 220).
Concerning the London operation, the Ontario Labour Relations Board had certified the Communications Workers of Canada on November 24, 1981 as the bargaining agent for employees of Business Answering Services of London Limited for both a full-time and part-time unit. MacLean Hunter Communications Inc. (MacLean Hunter) purchased the business in 1989 and became the successor employer at that time. MacLean Hunter subsequently sold this operation on March 31, 1994 to Rogers. Rogers sold to AAS according to the documents filed on March 1, 1996.
In 1992, the Communication Workers of Canada had merged with several other unions to form the Communications, Energy and Paperworkers Union of Canada. This union had been recognized as a successor by MacLean Hunter in the various collective agreements that it had negotiated with the union.
When Rogers purchased MacLean Hunter on or about March 31, 1994, it took the position that the London operation was under federal jurisdiction. Consequently, the Canada Labour Relations Board certified the applicant union on July 20, 1995, as the bargaining agent for the employees of Rogers at the London, Ontario, location and a certificate was subsequently issued. Rogers had entered into a collective agreement with CEO effective March 23, 1994 to March 22, 1997 (signed on February 22, 1996).
At the Sarnia location, for the full time unit, Local 220, was certified on July 16, 1975, by the Ontario Labour Relations Board for a company known as Telephone Answering Service of Sarnia Limited. Local 220 subsequently obtained a certificate in October 1975 'for the part-time unit. Telephone Answering Service was purchased by MacLean Hunter in the late 1980's and subsequently purchased by Rogers in 1994. Subsequently, Rogers sold to AAS on March 1, 1996.
In this location the bargaining unit had never been certified by the Canada Labour Relations Board but remained certified by this Board. Local 220 and Rogers are party to a collective agreement effective June 1, 1994 to May 31, 1996.
There is no dispute by any party that Rogers is a federally incorporated company and is governed by federal jurisdiction. There is further no dispute that in the licensing of the airways used for their paging operation Rogers is governed by federal licensing regulations and federal licensing boards. Furthermore, there is no dispute for the purposes of this preliminary decision only, that AAS is a provincially incorporated company and purchased the Sarnia and London Answering Service operations from Rogers on March 1, 1996.
It is clear from the evidence both from the filed material and from the testimony of Mr. Wilson that when MacLean Hunter bought the answering services in both locations the operations were expanded to cover both a paging service as well as an answering service. Mr. Wilson testified the business as run by MacLean Hunter and Cantel included both components. Mr. Wilson testified that at both locations the services (answering and paging) were fully integrated. At both locations the bargaining unit operators were expected and did provide both types of services. Though Mr. Wilson testified that there was some difference in the London and Sarnia operation in terms of equipment used, basically the operation was run in the same fashion. Much of his testimony concerned the different types of answering and paging services that were provided. What is important from his testimony is that the use of Hertzian waves were necessary to the paging operation. The use of such waves is licensed under federal jurisdiction. Further, it is clear from the evidence that when Rogers took over the paging aspect of the operation, there were three possible levels of paging service available to a customer; local, regional or national. The difference between the operation in London and the operation in Sarnia, was as stated before, in the equipment used. Thus there was a more technicality advanced system used in the London operation so that a message could be received and sent out on the same terminal. In contrast at the Sarnia operation, the message would be received on one terminal and then sent out on another terminal. However, in both operations all operators were required to perform both aspects of the operation, answering and paging. Both the Sarnia and London operation required the use of Hertzian waves. Mr. Wilson testified that these wave lengths cross borders and are governed by the CRTC and subject to the Radio Broadcasting Act and the Radio Communications Act.
In the sale to AAS, the paging networks were retained by Rogers and what was basically sold was the answering services. The purchase and sale agreement specifically excludes the paging networks. It was conceded that though not all customers used paging services, there were certainly a number of the customers that did avail themselves of such services. The answering and paging services were billed separately and contracted on separate document agreements. According to the evidence, it was evident that most of the operating duties would not involve the use of Hertzian waves but nevertheless the paging aspect was still part of the integrated service provided by Rogers. It was conceded that the operators' duties would not materially change with the switch to AAS. Further on cross-examination Mr. Wilson acknowledged that CRTC required a licence for paging and for the channels for the pagers, but did not require a licence for the answering service. In addition, Mr. Wilson agreed on cross-examination that the operators only connection to paging was to dispatch the page when called upon to do so.
It was the position of counsel for Rogers that this Board had no jurisdiction because Rogers was a federally regulated company. In counsel's submission although the Samia operation was not certified federally it is quite clear on the evidence that it is a federal undertaking. In London it is even clearer given that there is a federal certificate granted. Counsel submitted that because of the changes brought on by MacLean Hunter in adding the paging component which Rogers maintained, the operation obviously became a federally regulated undertaking. Counsel submitted that the case law supported her position that the work in issue falls within federal jurisdiction not provincial. This case law would, in counsel's submission, also apply to AAS. Alternatively, even if AAS is not considered as a federally regulated company, nevertheless this Board is still without jurisdiction under section 69 in that it was still a sale from a federally regulated company to a provincially regulated company.
Counsel for C.E.P. on the other hand takes the position that the underlying certification of the Ontario Labour Relations Board for the answering service was not extinguished by the purchase by MacLean Hunter and/or Rogers, but that such bargaining rights still existed and attached once a sale was made to a provincially regulated company, (as in this instance from Rogers to AAS.) In counsel's submission there is no evidence presented that can possibly lead the Board to the conclusion that AAS is a federally regulated company and therefore once the sale was made the underlying bargaining rights as certified by this Board operate to give this Board jurisdiction to consider the sale under section 69. As an alternative, counsel argues that in any event the paging business is severable from the answering service business and as such the provincial jurisdiction remained at all times attached to the answering service. Thus on the sale to AAS section 69 would apply to the sale of the provincial part of that business. Clearly since the business could be severed in a sale, this was the best evidence that the business was not an integrated business but rather a business that had severable operations. What remained with Rogers in counsel's submission was the federally regulated business whereas the provincially regulated business was sold.
Counsel for Local 220 adopted the above rationale but pointed out that in Sarnia operation that union had never been federally certified but had remained as a provincially certified union. In that sense although counsel did not argue waiver, it was obvious that a provincial business was sold to AAS. Thus counsel submitted that this Board had jurisdiction under section 69 to that part of the business had been transferred to AAS by Rogers.
It should be pointed out that counsel for Rogers referred the Board to an earlier provision under Bill 40, were the predecessor to what is now section 69. Under Bill 40, this Board had been given specific jurisdiction to consider a sale from a federal regulated company to a provincial regulated company. Under Bill 7 this aspect of Bill 40 had been repealed and is no longer a part of the Act.
For the purposes of this decision the Board is not convinced that any evidence has been led that would lead it to conclude that AAS is a federally regulated company. For the purposes of this preliminary ruling, the Board will assume that AAS is governed by provincial jurisdiction.
The Board, however, is not persuaded that the paging and answering services were not run as an integral business by Rogers when they operated the business both at the Sarnia and London operations. It is clear from the evidence, which is not disputed, that the paging answering and paging services were run as an integrated business. Further the operators participated in both aspects of this business i.e. participated both in the answering service and in the paging business. Though the business may be severed for purposes of sale this does not mean that it was not run as an integrated system by Rogers. Further, in the Board's view, Rogers is a federally regulated company with a federally regulated business.
Thus, for the purposes of this decision, the Board will consider that there has been a sale of part of the business from a federally regulated undertaking to a provincially regulated undertaking. In these circumstances, does the Board have jurisdiction to consider this sale under section 69 of the Act?
In the Board's opinion it does not have such jurisdiction. There has been no case that the Board has found or been referred to (excluding specific legislation passed under Bill 40) where the Board has assumed jurisdiction under section 69 or its predecessors on a sale of a business from an integrated federally controlled company to a provincially regulated controlled company. Though the argument of the counsel for the union is intriguing that the rights still attach (an analogy being drawn to the bankruptcy cases), the Board is not convinced that this proposition can be supported in a sale from federally regulated company to a provincially regulated company. In this matter, the Board adopts the reasoning found in its earlier decision of London and District Service Workers' Union, Local 220 Applicant v. MacLean-Hunter Communications, [1980] OLRB Rep. Apr. 466. This case concerned an application for certification. The union in that case had argued that the respondent was subject to provincial not federal jurisdiction because none of the business extended beyond provincial boundaries. (In the case before this panel, it is to be remembered that there was evidence that some of the paging services did extend beyond provincial boundaries). This case like the situation before us, involved a paging and answering service operation. It is quite clear from that decision that the operators received a message in the London office and then sent it over the wires in appropriate form to a transmitter outside the city. As the Board found "On receipt by the transmitter, Hertzian waves are emitted to carry the message to the appropriate source. Hertzian waves are also the means by which mobile communication service is provided." The Board in a lengthy decision considered whether it had jurisdiction and determined in that instance that it did not have jurisdiction to consider an application for certification. The Board is making this decision referred to Tasco Telecommunication Answering Service Exchange Limited [1977] 1 C.L.R.B. 273. In the Tasco decision the Federal Labour Relations Board had refused to severe "the telephone answering service aspect of Tasco's business for constitutional purposes". This Board in the MacLean Hunter decision, relying on the Tasco decision determined that:
Accordingly, on the basis of the well established judicial authority relating to radio communication, the Board finds that it lacks jurisdiction to entertain the application in question. The essence of MacLean Hunter's paging and mobile communication services is radio communication by Hertzian waves and thus is appropriately classified as such for the purpose of determining constitutional jurisdiction. Notwithstanding the fact that the radio waves are both emitted and received in Ontario, the Board concludes that the enterprise falls to federal jurisdiction pursuant to either the combined operation of section 91(29) and 92(l0)(a) of The British North America Act as constituting an undertaking which extends beyond the province or pursuant to the federal government's powers to make laws for the peace, order and good government of Canada, or both.
- Reference may also be made of this Board in Canadian Telecommunications Group, [1985] OLRB Rep. Feb. 182. In that case the employer was engaged in the business of selling, installing and maintaining telephone telecommunications systems. The issue was whether this was an integral part of Bell's federal undertaking and subject to federal regulatory authority. In that situation, a separate company CTG sold, installed and maintained the telephone telecommunication systems. It did not manufacture such equipment. There was no dispute that Bell was a federally regulated telecommunications common carrier. In the circumstances the Board determined that CTG activities did not make it functionally an integrated part of the Bell Telephone network but that it was:
in the same position as various brokers, intimidiaries agents and independent producers with which the courts were concerned.
In Paul L’Anglais Inc., Cottrell, Cannett, Wardair and the other cases reviewed earlier, CTG and the services it performs simply do not have the same relationship to the core federal activity here as the services of the stevedores did to the core undertaking in the Stevedoring case supra (paragraph 53).
The Board therefore concluded that CTG was bound by provincial jurisdiction.
- Though both cases can be distinguished on their facts, the MacLean Hunter Communications decision falls more squarely within the facts before this panel. This Board has concluded that unlike the Canadian Telecommunications Group case, there is an integrated business that Cantel was operating concerning its answering and paging service. In these circumstances, there were not two separate companies operating two separate parts of the business but one fully integrated service being provided to customers. This rationale is supported from the cases quoted in the Canadian Telecommunications Group decision, especially the Federal Court of Appeal decision in Canadian Airlines Employees Association v. Wardair Canada. In the Canadian Telecommunications Group decision, the Board quotes extensively from that decision at paragraph 30 where the Court sets out what problems may arise when considering in which labour relations jurisdiction a particular employer may fall.
"A particular activity may be reasonably incidental to the operation of a federal work, undertaking or business without being an essential component of such operation. For example, an interprovincial railway may have its own laundry facilities or its own arrangement for preparing food for passengers, or, alternatively, it may send its dirty linen to an outside laundry or buy prepared food. Generally speaking, where such an activity is carried on by the operator of the federal work, undertaking or business as an integral part thereof, it is indeed a part of the operation of the federal work, undertaking or business. Where, however, the operator of the federal work, undertaking or business carries on the operation thereof by paying ordinary local businessmen for performing such services or for supplying such commodities, the business of the person performing the service or preparing the commodities does not thereby automatically become transformed into a business subject to federal regulation".
Based on this test it is quite clear that the activity that was carried on by Rogers in both the London and Sarnia operation was an integral part of the business it provided to its customers. The Court concluded in the Wardair decision:
"where something is done as an integral part of an operation of a federal work, undertaking or business and that something is reasonably incidental to such operation. it may be regulated by Parliament as part of the regulation of that work, undertaking or business even though it is not essential to the operation of such work, undertaking or business; but where such a thing is made the subject of a separate local business or businesses, it cannot be regulated by Parliament merely because, if it were done as an integral part of operating a federal work, undertaking or business, it could, as such, be regulated by Parliament.
In the case before this panel there was not a separate business being operated at the time Rogers sold part of its business to AAS. The paging operation was reasonably incidental and integral to the total service being provided by Rogers. Thus the Board finds that there was a sale of a part of federally regulated operation to a provincially operated company.
Based on the above it is the Board's conclusion that it has no jurisdiction under section 69 to proceed further with this matter.