[1999] OLRB REP. MAY/JUNE 397
1336-98-R Power Workers' Union, Canadian Union of Public Employees, Local 1000, Applicant v. Lincoln Hydro Electric Commission and Ontario Hydro, Responding Parties v. London Hydro and Flamborough Hydro Electric Commission, Interveners
Sale of a Business - Remedies - Board finding that "part" of Ontario Hydro's "business", and not a collection of unrelated or surplus assets, transferred to local hydro electric commission - Board regarding it as irrelevant that transfer regulated by Bill 185 - Local hydro electric commission seeking to recruit employees from Ontario Hydro, but drawing only one employee from Ontario Hydro's business - Board finding "intermingling" within meaning of section 69(6) of the Act, but terminating bargaining rights and collective agreement as of effective date of transfer
BEFORE: R. 0. MacDowell, Chair.
APPEARANCES: Andrew Lokan, Heather Bowie and Bob Menard for the Power Workers; Richard]. Charney, Margaret Gavins and John Alton for Lincoln Hydro; Michael McFadden and Brent Duguid for Ontario Hydro; George Vegh for London Hydro/Flamborough Hydro.
DECISION OF THE BOARD; May 17, 1999
I. What this case is about, in 2eneral
This is an application under section 69 of the Labour Relations Act. The union contends that there has been a "sale" of "part" of Ontario Hydro's "business" to the Lincoln Hydro Electric Commission. The union claims that, as a result of that "sale", Lincoln Hydro is a "successor employer" under the Labour Relations Act, so that the union's bargaining rights and collective agreement now bind Lincoln Hydro.
The union says that the transferred "part" of Ontario Hydro's "business" is: Ontario Hydro's retail distribution network in the Lincoln County area - which is to say, a collection of 5,000 retail customers together with the configuration of assets (lines, poles, transformers, etc.) necessary to supply those customers with electrical power. The union asserts that those assets and customers have now been added to Lincoln Hydro's existing undertaking, thereby more than doubling Lincoln Hydro's customer and asset base.
Lincoln Hydro has the right to an exclusive franchise to supply electricity within its own geographic area - provided that it has the will and the means to do so; and as a result of the acquisitions from Ontario Hydro, Lincoln Hydro now has the capacity to supply that full market. However, in the
union's submission, this is more than just an asset transfer. Lincoln Hydro has significantly expanded "its business" by acquiring "part of the business" of Ontario Hydro: in fact, what Lincoln Hydro has acquired from Ontario Hydro is much more significant and valuable than what Lincoln Hydro had to begin with. Accordingly, the PWU retains bargaining rights for employees working at Lincoln Hydro, and Lincoln Hydro must apply the PWU/Ontario Hydro collective agreement to the now combined operation.
- Lincoln Hydro replies that there has been no transfer of "part of a business" within the meaning of section 69 of the [Labour