[1999] OLRB REP. MAY/JUNE 451

1484-98-U Canadian Union of Public Employees, Applicant v. Native Leasing Ser­vices, Responding Party v. Anduhyaun Inc. Intervenor

Sale of a Business - Union certified as bargaining agent for employees of personnel business ("NL") employed at social service agency ("AN") - NL providing employees to A, but playing no role in operation of agency and making no decisions about recruitment and hiring of employees - AN terminating contract with NL and AN "hiring" all employees of NL who had been employed at AN - Board finding sale of a business from NL to A

BEFORE: Gail Misra, Vice-Chair.

APPEARANCES: Risa Pancer, Joanne Martin, Dana Ivanochko & Jackie Froman for the applicant; James Fyshe and Roger Obonsawin for the responding party; Jay Rider, Catherine Brooks, Charlene Catchpole and Barbara Riley for the intervenor.

DECISION OF THE BOARD; June 30, 1999

1. This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") claiming violations of sections 5, 70, 72, 73, and 86 of the Act.

2. On May 5, 1998 the applicant was certified as the bargaining agent for all employees (with some exceptions) of Native Leasing Services working at Anduhyaun Inc. in the city of Toronto. Anduhyaun Inc. ("Anduhyaun") had an employee leasing agreement with Native Leasing Services ("Native Leasing") such that the latter company supplied Anduhyaun with all of its employees. In July 1998 CUPE filed this unfair labour practice complaint against Native Leasing claiming some breaches of the statutory freeze period. Anduhyaun is an intervenor in the application. Effective March 18, 1999 Anduhyaun terminated that contract and became the direct employer of the employees in the bargaining unit. On April 14, 1999, the first day of hearing in this case, Native Leasing and the Canadian Union of Public Employees ("CUPE" or the "union") entered into minutes of settlement pursuant to which these two parties resolved some of their differences to the extent that Native Leasing had been implicated in the section 96 complaint. That left a question about Anduhyaun's role in these proceedings.

3. Anduhyaun and CUPE subsequently asked the Board to first address the applicability of section 69, the successor employer provision of the Act, to the situation before the Board. Although no application under section 69 was filed, the parties agreed that this matter should be decided by the Board as a preliminary issue. The Board heard evidence and submissions on this subject, and the following is the Board's decision on this one issue.

4. Anduhyaun is an Aboriginal social service agency founded in 1973. It operates a women's shelter, a second stage housing program for Aboriginal women and children recovering from violence, a day care centre for Aboriginal children, and it provides counselling. All of its program.ming is culturally based. The head office of the organization was in Toronto, however, since March 1999 the head office has been relocated to a leased property in Hagersville, on the Mississauga's of the New Credit native reserve. The programs are run out of three locations in Toronto. Anduhyaun employs 31 people and is run by a volunteer board of directors.

5. Catherine Brooks testified for the employer. She has been the Executive Director of Anduhyaun for the past seven years, and is responsible for the preparation of budgets, programming, staff training, supervision, liaising with outside agencies, and fundraising. Ms. Brooks reports to the board of directors which is made up of Aboriginal women. The board meets monthly, makes all major decisions regarding the finances, programs, and personnel of the agency, and is responsible for the organization. The Personnel Committee of the board developed a personnel policy for Anduhyaun in 1986, and while that policy is still the governing document, the board is now in the process of reviewing it.

6. Native Leasing is in the business of providing employees to Aboriginal agencies. In January 1993 Anduhyaun became involved with Native Leasing following a lengthy process undertaken by Ms. Brooks and the board. Ms. Brooks had noted that the agency offered its employees very limited benefits. Attempts to work through insurance brokers to find a reasonably priced benefits package failed. Ms. Brooks heard about Native Leasing and suggested that company to the board, which accepted the idea after much discussion. Native Leasing could provide employees with a benefit package through Great West Life Insurance Company, and because it was based on a reserve, could provide its employees who have Indian status with income tax exempt status. The cost of having Native Leasing become the employer of Anduhyaun employees was that the agency had to pay Native Leasing a fee of 5% of the payroll, and all the insurance costs. The employees were not consulted about the move to Native Leasing, but according to Ms. Brooks they were happy with the benefits and the income tax free status, which also had the effect of bringing Anduhyaun wage rates in line with what other social service employees elsewhere were earning. When the contract was signed Anduhyaun gave all its employees Records of Employment and all staff then became the employees of Native Leasing. There was no change in the wage rates paid to the staff, but their benefits improved as a result of access to the Native Leasing benefit package.

7. Native Leasing's role was to provide the employees to Anduhyaun but it had no role in the operation of the agency and made no decisions about recruitment and hiring of employees. Anduhyaun would place advertisements in its own name for new employees, receive applications, interview prospective candidates, and make the hiring decision. As part of its advertising process Anduhyaun would also advise Native Leasing of any jobs to be filled. Two Anduhyaun staff came through Native Leasing which recommended them and set up their interviews at Anduhyaun. Once hiring decisions were made, Anduhyaun would then send Native Leasing the documents regarding the new hire. Anduhyaun set the terms and conditions of employment, the duties and responsibilities of employees, and their working hours. Native Leasing had no input into holiday policies, leaves of absence, training programs, job descriptions, etc. Native Leasing has other Aboriginal clients like Anduhyaun. It is a privately owned company whose principals Roger Obonsawin and Ljuba Irwin hold no positions in Anduhyaun, and never have.

8. As the Executive Director of Anduhyaun Ms. Brooks manages the day to day operations of the agency. She too was on the Native Leasing payroll prior to March 19, 1999. The Executive Director, the Assistant Executive Director, Charlene Catchpole, or some other staff would provide employee hours and any salary rate changes to Native Leasing so that the payroll could be prepared. Native Leasing never questioned any information provided by Anduhyaun.

9. Any new hire was required to complete a contract with Native Leasing. However, if an employee had a question about the benefits, she would ask the management at Anduhyaun. Only if Anduhyaun could not resolve the issue would management then call Native Leasing to deal with the insurer. Day to day labour relations were Ms. Brooks' responsibility. Thus once the application for certification was received at Anduhyaun, Ms. Brooks sent it on to Native Leasing. Ms. Brooks was involved in arriving at the employee lists which were submitted to the Board as part of the Native Leasing response to the application for certification. She decided who should be claimed as being in or out of the bargaining unit.

10. Native Leasing would send around a monthly listing of all of the training programs it was providing. Anduhyaun also provided the workers with its own training programs geared to the particular work being done within the agency.

11. In June 1998 the Anduhyaun board allegedly made a decision to layoff some of its staff because it was running a large deficit for the second consecutive year and had been told by its auditors that it must take steps to reduce spending. Hence, two clerical positions and two counsellor positions were eliminated. After the decision had been made Anduhyaun advised Native Leasing to lay off the affected individuals.

12. Pursuant to the contract between Native Leasing and Anduhyaun the arrangement could be tenninated on four weeks notice. On February 18, 1999 Anduhyaun decided that the Native Leasing contract was to be terminated and gave the requisite notice. It allegedly made this decision because it could realize substantial savings by ceasing to pay the contract fee of 5% of payroll, it felt it could find a cheaper and more inclusive benefit package for the employees, and because the board was not happy with the job which Native Leasing had done during the application for certification process. It decided that for the price it was paying Native Leasing, Anduhyaun could hire a payroll service, find cheaper employee benefits, rent an office in Hagersville and hire back one of the staff it had laid off in June

14. By a letter dated February 17, 1999 Ms. Brooks informed the CUPE National Representative as follows:

I am writing to inform you about a management decision that Anduhyaun Inc. has made. I am informing you about this decision in recognition of our employee's [sic] right to have union representation. Unionizing is a right Anduhyaun's management respects, both staff and the Board of Directors. We are terminating our contract with Native Leasing Services and assuming full-employer status as of March 18, 1999. You will need to change the name of the employer to Anduhyaun Inc. and we are in agreement for this to happen.

14. The employees of Anduhyaun were advised of the termination of the contract by individual letters from the president of the board of directors. The relevant portions of the letter dated March 18, 1999 state as follows:

This letter is to formally and individually announce the Board of Directors resumption of employer responsibility to you our employees as of March 19, 1999.

Therefore, we further assure you that your benefits package will remain the same and are only subject to the outcome of the negotiations presently underway towards a collective agreement with the union.

15. Ms. Brooks also sent the CUPE National Representative a letter on March 18, 1999 wherein she stated as follows:

Attached are copies of the letter announcing Anduhyaun's resumption of a direct employer relation­ship with our employees and acknowledging that everything will change according to the develop­ment of the first collective agreement.

We recognize the union as the sole representative of our employees in the collective bargaining process. We look forward to meeting to put forward our proposal on the union's first .......

16. When testifying Ms. Brooks maintained that the references to the union in her letters of February 17 and March 18, 1999, were all by way of saying that Anduhyaun was voluntarily recognizing the union as the bargaining agent, and was not an acceptance of successor employer status.

17. All of Anduhyaun's assets are owned by that agency. Two of the buildings are owned and two are leased. Computers, furniture, and other things used in the daily provision of the agency's services are owned by the agency. Monies received from funders and donors all go to Anduhyaun, with nothing going to Native Leasing, which was simply paid for its services.

18. Following the termination of the contract with Native Leasing there was no change in Anduhyaun's business or that of Native Leasing. No person associated with Anduhyaun has any relationship to Native Leasing nor any financial interest in that company. On March 19, 1999 Anduhy­aun became the direct employer of all staff working in its programs, but acquired nothing else from Native Leasing.

19. Ms. Brooks testified that she wrote the letters she did to CUPE because Anduhyaun was quite prepared to acknowledge the union and it believed that the union would have to get the certificate issued by the Labour Relations Board changed to reflect that Anduhyaun was the employer. She was in agreement that the name should be changed. She also agreed to participate in the conciliation process. However, by the time of the hearing Ms. Brooks was of the view that the relationship with CUPE was a new one, not a continuation of the relationship which CUPE had with Native Leasing.

20. After the termination of the contract with Native Leasing, Anduhyaun asked each of its employees to sign a contract of employment with the agency. It did this on the advice of one of its lawyers and because the staff were concerned about their employment status since Native Leasing was no longer to be their employer. In order to allay fears and uncertainty, Ms. Brooks allegedly offered each employee an employment contract to reassure them that their respective employment with Anduhyaun would be continuing. Ms. Brooks stated that it had never been the agency's intention to try to undermine the union. Anduhyaun also replicated the form used by Native Leasing to keep track of attendance and simply changed the letterhead to that of Anduhyaun. All employees formerly employed by Native Leasing at Anduhyaun continued to be employees of the agency after the contract was terminated.

21. During the negotiations for a first collective agreement between Native Leasing and CUPE, Ms. Brooks was the "employer" representative on the bargaining committee. Anduhyaun also retained a lawyer to help with the negotiations, but later decided he had insufficient experience in collective bargaining. Ms. Brooks had reviewed the union's first proposal with the management team, and had kept the board of directors informed about the progress of negotiations. Even though Native Leasing was the ostensible employer, according to Ms. Brooks, the ultimate decision about a new collective agreement would have been with the board of Anduhyaun.

22. Anduhyaun argues that there has not been a sale of a business in this case as the only transfer between Native Leasing and Anduhyaun is that of employees. The two businesses are com­pletely different, with Native Leasing in the business of supplying labour, and Anduhyaun being a non­profit social service agency. A severable part of Native Leasing has not been transferred to Anduhyaun either. Anduhyaun argues that no functional economic unit has changed hands in this instance but rather the services of a personnel agency are simply no longer being used. Counsel suggests that the operational control of Anduhyaun has always been within that agency, and there is no cross-over in that regard with Native Leasing, either in 1993 when the contract first commenced, or at the end of the contract in 1999. There has been no element of relatedness between the two entities, but rather this is a sub-contracting relationship. Finally, Anduhyaun argues that CUPE's certificate was as against Native Leasing, and the only thing which has happened since the contract between Native Leasing and Anduhyaun ended is that Anduhyaun has voluntarily recognized CUPE as the bargaining agent for its employees. Hence, Anduhyaun argues that the section 96 complaint as it relates to the period before March 19, 1999 cannot be pursued against Anduhyaun.

23. CUPE asks the Board to find a sale of a business. It points out that the certificate issued in May 1998 was with respect to a bargaining unit comprised of employees of Native Leasing at Anduhyaun. It argues that the operational control test is not applicable in the circumstances of this case where it has been accepted that Anduhyaun has always maintained operational control, and Native Leasing has been the employer since 1993. Furthermore, in this case Anduhyaun and Native Leasing had worked together to provide the best protection for employees of Anduhyaun by creating an arrangement to allow employees working off-reserve to have income tax exempt status and access to a good benefit package.

24. In any event, CUPE argues that there has been a transfer of more than employees between the two entities: It points out that Ms. Brooks acted on behalf of Native Leasing in the bargaining with the union, and then continued to act on behalf of Anduhyaun after the contract was terminated. CUPE also asks the Board to look at the correspondence from Anduhyaun to the union about the end of the Native Leasing contract where the union argues that Anduhyaun as much as admitted that it is the successor employer.

25. The relevant portions of section 69 state as follows: 69. (1) In this section,

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

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

(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.

26. In Charterways Transportation Limited, [1994] OLRB Rep. Oct. 1296, (upheld by the Ontario Court of Appeal, leave to appeal to the Supreme Court of Canada granted), the Board considered the sale of a part of a business where the Town of Ajax took back operation of Ajax Transit from Charterways. The employees of Ajax Transit had been organized by the CAW. Although the Town of Ajax had at all relevant times owned the buses, bus shelters, bus stops, and other tangible assets, had built the bus terminal where the buses were garaged, cleaned and repaired, and had provided or dictated the types of signs, tickets, payment systems and schedules, it had not actually operated the transit system since the inception of the transit system in 1977. Charterways had been contracted to provide trained drivers, mechanics and cleaners to operate the system. It also provided supervision and dis­patching services for the work force. Charterways had provided spare repair parts and fuel, but was reimbursed by the Town for those expenses. The Town retained considerable control over the operation of the transit system, which was completely associated with the Town itself. Charterways had no visible presence in the operation of the transit system: the drivers wore uniforms identifying them as Ajax Transit drivers, the buses had signage saying "Ajax Transit", and all informational material provided to the public identified the system as that of Ajax Transit or the Town of Ajax.

27. Charterways is a large transportation company offering services throughout Canada and the United States. The contract with the Town of Ajax was only one of its many undertakings. In July 1992 the Town Council voted to terminate the contract with Charterways and gave notice that it would take back the operation of the transit system as of January 1993. Employees of Charterways who had been working at Ajax Transit were given notice that their employment was being terminated. The Town then recruited the majority of the drivers and other staff, except the supervisory staff, of Charterways. The Town had decided that it wanted a seamless transition and there was to be as little alteration as possible in the method of operation of the transit system. Other than the employees, however, it did not retain any other aspects of Charterways's business since virtually all of the assets utilized in the operation of the transit system were already owned or controlled by the Town. On all of the facts before it the Board found that "substantially the same drivers would be performing the same work to achieve the same purpose within the same transit system, albeit for a different employer and under a different supervisor" (see paragraph 27).

28. Following a review of the Board's jurisprudence, with particular reference to Metropolitan Parking Inc., [1979] OLRB Rep. Dec. 1193, the Board determined that there had been a transfer of a part of a business within the meaning of section 69 of the Act. The Board noted that the "business" in which Charterways was engaged was not the provision or operation of a bus service, but rather was the provision of a skilled work force to the Town. The Charterways business with respect to Ajax Transit was an organizationally distinct ann, and the workforce engaged by Charterways could be considered its most valuable asset. The Board was ultimately satisfied that by acquiring a substantial part of the work force previously employed by Charterways to perform its obligations under its contract with the Town, the Town transferred to itself an essential element of that business. The Board stated as follows:

29. By virtue of its acquisition of that employee complement in a substantially similar form, the Town gained possession of the distinguishing feature of Charterways' business. Furthermore, we are satisfied that the employee complement continued to serve the same integral function in the operation of Ajax Transit once that system was run by the Town in its entirety. In contrast to the relatively unskilled work force in Metropolitan Parking, whose particular identity was at best a matter of indifference to the alleged purchaser, in the present application the employee complement, given its specific composition that is linked to the operational requirement for continuity, constituted an integral feature of Charterways' transit business in the Town of Ajax and, upon the termination of the contract, essential to the continued operation of Ajax Transit. The evidence is clear that the Town wished to operate the system in much the same manner as previously, and in the context of the particular commercial context, the continuity of the employee complement played a significant role in achieving that goal.

30. The Labour Relations Act, in its many permutations, has for the last 30 years contained "successor rights" provisions designed to ensure that employees' and trade unions' collective bargaining rights flow through changes in ownership so long as there is a continuation of the same business. The provisions of the Act apply equally whether there is a commercial attempt to escape bargaining rights, or if there are bona fide business transactions which are not improperly motivated, but which nevertheless erode established bargaining rights. (See PCL Constructors Eastern Inc., [1995] OLRB Rep. Oct. 1277). Section 69 may also be triggered by the sale of a part of a business. The intent of the section is to prevent the dislocation of the collective bargaining status quo by transforming bargaining rights of the union and the employees into a kind of vested interest which, like a charge on property, runs with the business or part thereof.

31. In section 69 of the Act, "sale" includes a "lease, transfer or any other means of disposition". The Board, with the Courts' approval, has given this concept a consistently broad interpretation, as stated in Thorco. Mfg. Ltd. (1965), 65 C.L.L.C. 16,052, at p. 787, and Re Hughes Boat Work Inc. and UAW(1979), 1979 CanLII 1853 (ON HCJ), 26 O.R. (2d) 420 (Div. Ct.) atp. 432:

The word transfer, however, is obviously a term of wide signification and unless restricted by the context is capable of describing a multitude of transactions whether by sale, exchange, gift, trust or otherwise by which property, rights, or interests, etc. are transmitted absolutely, conditionally etc. or by operation of law from one person to another. We are unable to find anything in the language of the section to denote any legislative intention to restrict the meaning of the word transfer to any particular kind of transfer. Also, having regard to the particular language used and the remedial object sought to be attained by and the wide meaning which must be attributed to the preceding word transfers, it is our opinion that the generality of the words any other manner of disposition is not intended to he in any way limited by or interpreted ejusdem generis with the word leases or transfers. In our opinion, it is more in harmony with the language of the remedy envisaged by the enactment to interpret the words any other manner of disposition as an omnibus or saving provision intended to include dispositions of the business or a part or parts thereof by any mode or means whatever which are not appropriately described by the preceding words which state that sells includes leases or transfer.

(emphasis in original)

31. Thus, the legal form of disposition is of limited interest, and the Board, for labour relations purposes, looks at the relationship between the successor, the employees, and the undertaking. In considering what constitutes the "business" the Board in Parnell Foods Limited, [1992] OLRB Rep. Dec. 1164 atp. 1194, stated as follows:

The Board's conception of the "business" under the Labour Relations Act is an operational or instrumental one. The business is not its legal envelope, nor the employees, nor some incidental or unrelated grouping of assets, nor the body of work in which employees may be engaged from time to time. It is a delivery system, an economic vehicle, an organizational means of getting something done. It is to this vehicle that bargaining rights attach and in which they continue if the undertaking or a coherent part of it is transferred to a new owner.

32. There is no mechanical test to determine what is an asset transfer and what is a transfer of a part of a business. In Metropolitan Parking Inc., cited above, the Board stated as follows at para. 34:

This distinction is easily stated, but the problem is, and always has been, to draw the line between a transfer of a 'business' or a 'part of a business' and the transfer of 'incidental' assets or items. In case after case the line has been drawn, but no single litmus test has ever emerged. Essentially the decision is a factual one, and it is impossible to abstract from the cases any single factor which is always decisive, or any principle so clear and explicit that it provides an unequivocal guideline for the way in which the issue will be decided.

33. In each case the Board considers the particular facts and whether from a labour relations perspective there has been a transfer and continuation of some facet of the predecessor's business which warrants a continuation of bargaining rights. Since section 69 of the Act is designed to remedy the mischief of a loss of or disruption in bargaining rights, the Board looks in each case not at the loss of work, but rather at the disruption of bargaining rights which would flow from a change in ownership but continuation of all or part of the elements that make up the business.

34. The Board attaches particular significance to the nature of the work performed in, and by, the business before and after the alleged transfer. If the nature of the work performed subsequent to the transfer is substantially similar to the work performed prior to that transaction (and if the employees, or types of employees, are the same) this would normally support an inference that there has been a transfer of a business or part of a business. This is especially so if the work is being performed in the same context, the same location, with the same equipment, or in respect of the same clientele.

35. Native Leasing was in the business of providing workers to Aboriginal social service agencies, and in particular, to Anduhyaun. The Anduhyaun workers had particular characteristics: they were Aboriginal and they were trained to work in a social service environment serving a largely female Aboriginal clientele. The workers were also trained to work with female victims of violence, with Aboriginal children, and in the provision of counselling services in a culturally specific context.

36. The facts before me in this case are that Anduhyaun was the employer of this specialized group of workers until 1993 when the board of directors of that organization decided that it would be beneficial to both the workers and to the organization to have them employed through an Aboriginal employment agency. The benefit to Anduhyaun was that it no longer had to maintain the payroll functions, seek out a benefit plan, or look for ways to increase the amount paid to its employees because those employees would have the benefit of income tax free status as a result of being employed by an Aboriginal company based on a reserve. However, nothing else changed for either Anduhyaun or the employees. One day they were employees of Anduhyaun and the next employees of Native Leasing. Their work continued to be assigned, scheduled and supervised by Anduhyaun; personnel policies were set by the Anduhyaun board of directors; wage rates were set by Anduhyaun and it decided when it needed new employees or to layoff employees because of lack of work or funding.

37. CUPE subsequently, in 1998, organized the employees of Native Leasing at Anduhyaun as a specific bargaining unit. It did not organize all of the workers who work at various other Aboriginal agencies through Native Leasing, but rather responded to the interest of the Anduhyaun workers to collectively bargain. It won a ratification vote held among the workers at Anduhyaun and was certified as the bargaining agent for those workers.

38. In 1999, six years after reaching the arrangement with Native Leasing, the board of directors of Anduhyaun made the decision to "take back" all of the staff which had been ostensibly hired through Native Leasing. It told every employee, including the Executive Director, that she had a job with Anduhyaun as of March 19, 1999, the day on which each employee was no longer employed by Native Leasing. Each worker remained in exactly the job she had held on March 18, 1999, working at the exact location she had been at previously, and working for the same wages. The benefit package changed slightly because Anduhyaun contracted for benefits coverage with a different insurance carrier than had Native Leasing. The staff of Anduhyaun therefore continued to perform the same functions and to serve the same clientele they had served the day before being "hired" by Anduhyaun. The character of the business did not change.

39. Having regard to the facts of this case and in light of the jurisprudence the Board has no hesitation in finding that there has been a transfer of a part of a business from Native Leasing to Anduhyaun as of March 19, 1999. The Anduhyaun contract held by Native Leasing between 1993 and 1999 was clearly a part of Native Leasing's "business". Native Leasing's business was to provide employees to Aboriginal social service agencies, and as such it provided to Anduhyaun a very particular and specialized group of persons capable of running Anduhyaun's shelter for abused women, second stage housing, child care centre, and counselling services, and it was paid for that service. When Anduhyaun determined to terminate the contract with Native Leasing and take back the operation of the programs itself, it took on all of the workers who had been working at its facilities all along, and it maintained the provision of services.

40. As in the Charterways case, cited above, all of the physical assets required to provide Anduhyaun's services were already owned or leased by Anduhyaun. Thus, the only part of the business provided by Native Leasing was the specialized personnel. That was its asset, and that envelope of personnel is what changed hands on March 19, 1999. The provision of personnel is what is Native Leasing's business, and it transferred that asset of skilled and experienced personnel on the date in question. From Anduhyaun's perspective, without that personnel it could not run its agency and programs. Clearly Anduhyaun wanted a seamless transition and therefore offered all of the workers the same wage deal they had had with Native Leasing. To the outside observer, as a result of the uninterrupted transfer of employees from Native Leasing to Anduhyaun, there would not have appeared to be any change whatsoever between March 18 and March 19, 1999. Thus, the staff were integral to the operation of both Native Leasing and to Anduhyaun. They had been a valuable asset to Native Leasing, which had collected fees for provision of that work force for six years, and they were essential to the continuation of Anduhyaun's business of providing quality services to its Aboriginal clientele.

41. Is the transfer of the Native Leasing asset of its personnel something to which bargaining rights should attach and should the Board, considering the transfer from a labour relations perspective, find that the transfer of that asset warrants the continuation of bargaining rights? This is a situation in which a particular group of employees working at a particular work site decided they wished to collectively bargain. However, through no action of their own, the entity which paid those workers changed, but they kept working at the very same place, doing the same work, in the same work environment and with the same clientele. It seems obvious that this is precisely the type of mischief which section 69 is intended to address. Other than the change in employer name on their pay cheques, nothing changed for these workers except that they may lose the right to collectively bargain as a result of their employers' actions. The right to bargain collectively is an employee right, and a mere change in the identity of the employer, where there is nothing else which could have changed hands, and where the character of the work performed has remained the same, should not be an impediment to the continuation of this employee right.

42. The collectivity of workers at Anduhyaun chose CUPE as their bargaining agent. While that group of workers were employed by Native Leasing at the time of the certification application, had the Board been asked at that juncture to determine whether Anduhyaun was the real employer, it would have had no hesitation in doing so in the circumstances. Now that the ostensible employer has become the actual employer again and since that entire collectivity of workers has become employed by Anduhyaun, it seems obvious that a transfer of a definable part of Native Leasing has occurred. One could say that in 1993 Anduhyaun transferred a part of its operation (all its personnel) to Native Leasing, and in 1999 that part was transferred back again. In the interim, bargaining rights attached to that discrete asset of the organization, the group of employees.

43. It is important for the Board to recognize new kinds of employment relationships as they emerge. In the present economy it is not uncommon for employers to "contract out" parts of their respective businesses in order to make financial savings, or to gain access to specialized skills, services, funding or markets. From a labour relations perspective, and in view of the public policy interest in preserving the rights of workers, it is necessary to have an evolving conception of what may be a sale, or a transfer, and what may constitute a business or a part of a business.

44. Counsel for Anduhyaun relied heavily on the Board's decision in Metropolitan Parking, cited above, to argue that this was simply a sub-contracting situation. In my view this case is closer on its facts to the situation the Board considered in Charterways, cited above, as there has been a transfer of personnel who possess a significant amount of knowledge and skills in a very particular area. While Charterways and the case before me are not quite of the same magnitude as the "key person" cases in the construction industry, nonetheless, these cases are reflective of that concept being applied in the service sector. It is because the Town of Ajax (in Charterways) and Anduhyaun wished to continue to provide very specialized services to their respective clients that they needed to have either all or a substantial proportion of the predecessor employer's staff continue to work for them. The bus drivers and mechanics who worked for Charterways, and the staff of Anduhyaun were essential elements of their respective predecessor employers' operations, and were also integral to the successor employers' operations. In Metropolitan Parking however there was no particular interest in who filled the roles of parking lot attendants and clerical staff because there was nothing particularly sensitive about the kind of work being performed. The staff in that case were not integral to the operation of either the predecessor enterprise or the successor in the bidding. This is precisely the type of consideration which the Board undertakes in these types of cases and why each case must turn on its particular set of facts. The specific commercial context in which each case arises is of significance to the Board's decision-making. As the Board noted in para. 36 of the Charterways decision, "the Board must satisfy itself that a particular economic organization, or part thereof, in the form of a configuration of assets, organizational capacity, or some other "intangible" good that is an essential characteristic of one business has been transferred from one entity to another."

45. For all of the above reasons the Board finds that Native Leasing and Anduhyaun have transacted a sale of a part of a business within the meaning of section 69 of the Act. It follows that CUPE continues to have bargaining rights for the employees working at Anduhyaun and is entitled to give Anduhyaun written notice of its desire to bargain with a view to making a first collective agreement. The Board notes for the record that this is not a case in which the successor employer was attempting to avoid the union's bargaining rights or the employees' wish to collectively bargain. As has been noted in the evidence, Anduhyaun stated from the moment that the board of directors decided to terminate the contract with Native Leasing that it was prepared to recognize the union as the bargaining agent, and was prepared to engage in bargaining. However, as there would have been different consequences flowing from voluntary recognition, the union wished to have the successorship issue clarified.

46. I remain seized of this matter.