Ontario Labour Relations Board
Parties
1824-99-U National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 27, Applicant v. Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 141, Sobeys Inc. and Serca Foodservice Inc., Responding Parties.
1825-99-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 27, Applicant v. Serca Foodservice Inc., Sobeys Inc. and Burgess Wholesale Ltd., Responding Parties v. Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 141, Intervenor.
2629-99-R Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 141, Applicant v. Sobeys Inc. and Serca Foodservice Inc. and SWO Distribution Centres Ltd., Trading as Surelink, Responding Parties v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 27, Intervenor.
BEFORE: Brian McLean, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.
APPEARANCES: Frank Luce, Fergo Berto, Julie White, Albert Kindred and Carol Deacon for CAW-Canada; Marisa Polock and Wayne Gibson for Teamsters Local Union No. 141; F. G. Hamilton, Bob Wuest and Hugh Secord for Sobeys Inc.
DECISION OF THE BOARD; June 29, 2000
Decision
1Board File No. 1824-99-U is an unfair labour practice complaint. Board File Nos. 1825-99-R and 2629-99-R are applications under section 1(4) and/or section 69 of the Labour Relations Act, 1995 (“the Act”). A hearing was held to determine these matters on June 6, 2000.
2At the commencement of the hearing, Sobey’s Inc., Serca Foodservice Inc., SWO Distribution Centres Ltd., Trading as Surelink, and Burgess Wholesale Ltd. (with respect to the “CAW” application) (hereinafter referred to as “Sobey's”, “Serca”, “Surelink”, “Burgess” or collectively as “the employers”) made a motion that these applications filed by the CAW and the Teamsters be adjourned because, it is asserted, they are premature. The Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 141 (“Teamsters”) supported the employer’s motion but argued that its application should proceed. The CAW resisted these motions. This decision deals with the adjournment request.
Background and Facts
3There was substantial agreement on most of the facts, at least for the purposes of the preliminary motion. The applications concern a reorganization of Sobey’s Food distribution and warehousing in Ontario. The primary focus of the applications is on how the reorganization affects its operation in the London area.
4Sobey's, Serca, and Burgess are all “related” companies (although it must be emphasized that no finding has been made under section 1(4) of the Act) in that they share ownership and/or do business together.
5The Teamsters hold bargaining rights for a warehouse in London (“the Warehouse”). The CAW hold bargaining rights for another warehouse in London (“the Burgess warehouse”). Each of these warehouses either were closed or will be closed and consolidated into a warehouse once operated by a company called Surelink. The Teamsters held bargaining rights for the employees of Surelink, but those employees have all been laid off as Surelink closed its operation there in anticipation of Sobeys moving in.
6Sobeys negotiated a renewal collective agreement with the Teamsters that gave it bargaining rights over the Surelink facility. The CAW has bargaining rights for London, including arguably the Surelink facility, but its bargaining rights are not with Sobey’s, they are with Burgess, a Sobey's subsidiary.
7The CAW application under section 96 of the Act essentially alleges that the employer gave preference to the Teamsters for bargaining rights at the new Surelink facility. The CAW application also alleges that the Teamsters were part of the plot, the consequence and purpose of which was to deprive the CAW of bargaining rights.
8Under both the unfair labour practice complaint and the application under section 1(4) and 69 of the Act, the CAW seeks, primarily, a representation vote among employees at the new facility so the employees can decide which union ought to represent them.
9The employers’ and Teamsters’ main argument was that the employees represented by the CAW have not yet been moved to the new (Surelink) facility and therefore these applications are premature. They say that because there has been no intermingling of employees, no vote can be ordered.
10The CAW’s concern is that any delay will reduce their ability to win a representation vote if it is ultimately amended. Its concern arises out of the fact that Teamsters are the current bargaining agent for employees at the new (Surelink) facility. There have been and will be new hires. In addition, employees may be transferred from other locations to the new London facility who will also be represented by the Teamsters upon their transfer. Any delay will affect their ability to convince these employees to vote for the CAW.
Decision
11The relevant statutory provision are as follows:
- (1) In this section,
"business" includes a part or parts thereof; ("enterprise")
"sells" includes leases, transfers and any other manner of disposition, and "sold" and "sale" have corresponding meanings. ("vend", "vendu", "vente")
(2) 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 and, where an employer sells his, her or its business while an application for certification or termination of bargaining rights to which the employer is a party is before the Board, the person to whom the business has been sold is, until the Board otherwise declares, the employer for the purposes of the application as if the person were named as the employer in the application.
(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.
(4) Where a business was sold to a person and a trade union or council of trade unions was the bargaining agent of any of the employees in such business or a trade union or council of trade unions is the bargaining agent of the employees in any business carried on by the person to whom the business was sold, and,
(a) any question arises as to what constitutes the like bargaining unit referred to in subsection (3); or
(b) any person, trade union or council of trade unions claims that, by virtue of the operation of subsection (2) or (3), a conflict exists between the bargaining rights of the trade union or council of trade unions that represented the employees of the predecessor employer and the trade union or council of trade unions that represents the employees of the person to whom the business was sold,
the Board may, upon the application of any person, trade union or council of trade unions concerned,
(c) define the composition of the like bargaining unit referred to in subsection (3) with such modification, if any, as the Board considers necessary; and
(d) amend, to such extent as the Board considers necessary, any bargaining unit in any certificate issued to any trade union or any bargaining unit defined in any collective agreement.
(5) The Board may, upon the application of any person, trade union or council of trade unions concerned, made within 60 days after the successor employer referred to in subsection (2) becomes bound by the collective agreement, or within 60 days after the trade union or council of trade unions has given a notice under subsection (3), terminate the bargaining rights of the trade union or council of trade unions bound by the collective agreement or that has given notice, as the case may be, if, in the opinion of the Board, the person to whom the business was sold has changed its character so that it is substantially different from the business of the predecessor employer.
(6) Despite subsections (2) and (3), where a business was sold to person who carries on one or more other businesses and a trade union or council of trade unions is the bargaining agent of the employees in any of the businesses and the person intermingles the employees of one of the businesses with those of another of the businesses, the Board may, upon the application of any person, trade union or council of trade unions concerned,
(a) declare that the person to whom the business was sold is no longer bound by the collective agreement referred to in subsection (2);
(b) determine whether the employees concerned constitute one or more appropriate bargaining units;
(c) declare which trade union, trade unions or council of trade unions, if any, shall be the bargaining agent or agents for the employees in the unit or units; and
(d) amend, to such extent as the Board considers necessary, any certificate issued to any trade union or council of trade unions or any bargaining unit defined in any collective agreement.
(7) Where a trade union or council of trade unions is declared to be the bargaining agent under subsection (6) and it is not already bound by a collective agreement with the successor employer with respect to the employees for whom it is declared to be the bargaining agent, it is entitled to give to the employer a written notice of its desire to bargain with a view to making a collective agreement, and the notice has the same effect as a notice under section 14.
(8) Before disposing of any application under this section, the Board may make such inquiry, may require the production of such evidence and the doing of such things, or may hold such representation votes, as it considers appropriate.
12To the extent that the employers and Teamsters assert that the Board does not have jurisdiction to proceed in this matter due to the fact that there has been no intermingling of employers, we disagree. The Board can, at a minimum, determine whether there has been a sale of a business. The Board also has the jurisdiction to define the composition of the like bargaining unit and amend any certificate or scope clause of a collective agreement (section 69(4)). It is therefore theoretically possible that the Board could order, as the applicant requests, that it be declared bargaining agent for all employees in London.
13In addition, we may well have the authority to order a representation vote under section 96(4) of the Act in connection with the Board’s exercise of discretion under section 96(1) of the Act to amend bargaining rights on the sale of a business. However, that is not, in our view, the right approach where there is anticipated to be intermingling and the Act sets out an approach which applies to intermingling.
14We do agree, however, that given the current state of affairs in London we have no jurisdiction to order a representation vote under section 69(6) of the Act because there has, as yet, been no intermingling of employees. In our view, the mere overlap of bargaining rights does not by itself create an intermingling.
15While the Board may well have the jurisdiction to proceed we prefer to take a practical approach to these applications. If the Board is to order a vote in this matter it would likely be among employees who end up in the new (Surelink) facility. It is they who should determine which bargaining agent represents them, if that is ultimately determined to be the appropriate approach.
16Accordingly, we hereby adjourn these proceedings.
17However, we also believe that the concerns raised by the union are legitimate ones. There is the danger that delay will work in favour of the Teamsters. By delay, we mean the delay from the date on which the Burgess warehouse closes and the CAW employees’ transfer to the new (Surelink) facility and the date a vote is held.
18Accordingly, having regard to the employer’s indication to the Board that these events may be concluded by February, 2001 at the latest (assuming it occurs at all), we direct the Registrar to contact the parties to schedule enough hearing dates in early March 2001 so that the case can be completed at that time. If there are any changes in circumstance prior to that date, or events are not occurring at the anticipated time, the parties may ask the Board to review its hearing schedule.
19Finally, we urge the parties to come to an agreement on these matters. While we have not heard the evidence or the arguments, on the surface it appears that a representation vote may be the best way to resolve these matters.
20We are not seized.
“Brian McLean”
for the Board