Ontario Labour Relations Board
0305-00-M Industrial Wood & Allied Workers of Canada, Local 700, Applicant v. Wilson’s Truck Lines Limited, Wilson Logistics Inc. and Supply Chain Express Inc., Responding Parties.
0306-00-M Industrial Wood & Allied Workers of Canada, Local 700, Applicant v. Wilson’s Truck Lines Limited, Wilson Logistics Inc., Supply Chain Express Inc., Canadian Merchandising Employees Union, Tom Rees and Scott Carter, Responding Parties.
BEFORE: David A. McKee, Vice-Chair.
APPEARANCES: James Fyshe, Norm Rivard and Gary Wylie for the applicant; F.R. von Veh, Paul Harvey, Maria McDonald, Ron Ouellette and Sharon Duffy for Wilson’s Truck Lines Limited; Andra Pollak and Scott Carter for Supply Chain Express Inc.; Alick Ryder and Tom Rees for Canadian Merchandising Employees Union.
DECISION OF THE BOARD; May 24, 2000
Decision
1These are two applications for interim relief in two existing applications, and which impact on a third application filed after the argument of these interim applications. These applications are described more fully below.
2The applicant, Industrial Wood & Allied Workers of Canada, Local 700 (“IWA”) has had a collective bargaining relationship with Wilson’s Truck Lines Limited (“WTL”) for many years. The IWA represents 50 truck drivers and 5 or 6 dock employees of WTL. In late 1999 the IWA became of the view that WTL was setting up a subsidiary corporation to handle a very large increase in the volume of business to a new customer, Sobeys. It identified Wilson Logistics Inc. (“WLI”) as the corporate vehicle which was to accommodate this increased business. On January 10, 2000 it filed a sale of business/related employer application (“the section 1(4) application”), being Board file 2990-99-R, naming these two corporations as responding parties. WTL and WLI have responded that they are under common control and direction, but deny that they carry on associated or related businesses or activities. Specifically, WLI has pleaded that it is a “lead logistics provider company” and, unlike WTL, does not transport freight.
3In fact, the delivery of material to Sobeys is being performed by employees of the third corporate responding party, Supply Chain Express Inc. (“SCE”). WTL and SCE deny that there is any connection between them whatsoever, although it is acknowledged that WLI, on behalf of SCE, advertised for truck drivers and interviewed some of the employees ultimately employed by SCE. On March 8, 2000, at the request of the IWA, the Board added SCE as a responding party. However, no posting to any employees potentially affected by that application was made at that time.
4The relief sought in the section 1(4) application is a declaration that all three of the responding parties constitute one employer for all purposes of the Labour Relations Act, S.O. 1995, ch. 1 (the “Act”) and that the IWA is the sole and exclusive bargaining agent of all truck driver and dock-hand employees of all three corporations. Alternatively, a declaration is sought that WTL has transferred or sold a portion of its business to either WLI or SCE, or both.
5While this application was pending, a number of persons began to work for SCE. In circumstances which form part of the factual foundation for the unfair labour practice complaint referred to below (“the section 96 application”), the Canadian Merchandising Employees Union (“CMEU”) obtained applications for membership from those persons. On January 21 CMEU entered into a process with SCE designed to demonstrate that it represented a majority of employees (allegedly 27 out of 41), although it does not appear that this led to a formal voluntary recognition agreement. Bargaining for a first collective agreement commenced on February 17, 2000 and concluded on February 18, 2000. A ratification vote was held, with 26 employees voting. There are currently approximately fifty employees at SCE.
6On March 22, 2000 the IWA filed an application (Board file 3843-99-U) pursuant to section 96 alleging certain unfair labour practices (the “section 96 application”) alleging that WLI, SCE, CMEU and individuals identified as principals of them had violated sections 70, 72, 73 and 76 of the Act. Essentially, the IWA alleges that the purported bargaining rights of the CMEU were obtained as a result of employer support. It also alleges one employee of SCE was terminated or not hired contrary to the Act because of his opposition to the CMEU. The relief sought is the reinstatement of that employee, with compensation, and a declaration that the collective agreement between SCE and the CMEU is null and void, and finally an order that SCE cease to bargain with CMEU in respect of such employees.
7During this time, the collective agreement between WTL and the IWA expired. Parties were, as of the date of the hearing of these applications, in conciliation. An award was expected on or shortly after June 1, 2000.
8In these two files, the Board has issued orders dealing with certain production issues. It has required the corporate responding parties to provide extensive particulars and to produce a large volume of documents on or before May 25, 2000.
9On April 27, 2000 these two applications for interim relief were filed. The Board convened the hearing on May 8, 2000. As a result of argument that day, the IWA filed an application for the termination of bargaining rights under section 66 (Board File No. 0959-00-R: the “termination application”). The termination application seeks an order terminating any bargaining rights held by CMEU. Obviously, this is an alternative to the IWA’s argument that the collective agreement is tainted by employer support and therefore null and void pursuant to section 53 of the Act. However, it does clearly focus the issue before the Board and before the employees of SCE who are covered by the collective agreement. The responding parties were given the opportunity to make written submissions on the impact of this application on the interim relief application.
10The IWA’s concerns are legitimate concerns. If its theory of the case is correct, WTL has doubled the size of its workforce, but has channeled all of the increase in its workforce to another corporation beyond the ambit of the collective agreement. Another organization claiming union status purports to represent those other drivers. The IWA is concerned that the passage of time that inevitably accompanies any litigation will erode its position among the employees it seeks to represent. CMEU will be able to solidify its support as bargaining agent, and the IWA will have little or no contact with those employees. It also fears that the litigation will be portrayed to those employees as a threat to their job security because of the anticipated operation of seniority clauses.
11These are all very real concerns for any applicant in any section 1(4) application. There are, however, equally legitimate concerns on the part of CMEU and the three corporate responding parties, all of whom deny any violation of the Act and argue that there is no foundation for any of the relief sought by the IWA.
12The relief sought by the IWA is as follows:
“An order requiring the consolidation of the Board File #3843-99-U and #2990-99-R [and now #0959-00-R].
An order expediting the hearing of the combined Board Files.
An interim order suspending the application of the purported collective agreement between Canadian Merchandising Employees’ Union and Supply Chain Express Inc. pending a ruling on the related employer application by IWA Local 700 in Board File 2990-99-R.
An order requiring Wilson’s Truck Lines to address the issue with respect to the employees of Supply Chain Express Inc. in their negotiations with IWA Local 700 on the renewal of the collective agreement between that Company and Local 700 currently in process.
An order requiring the CMEU to place any dues or fees secured by virtue of Article 3 of the purported collective agreement, or any other provision of that agreement, be immediately placed [sic] in trust in the hands of a neutral party pending the outcome of the two applications referred to above.
An order requiring Supply Chain Express Inc. to post in a visible location the Applications of the IWA Local 700 in the Board Files #3843-99-U and #2990-99-U.
An order requiring Supply Chain Express Inc. to permit a meeting(s) during regular working hours to permit IWA Local 700 to explain its position to the employees of this company.”
13The issue for the Board in any interim relief application is not, of course, the protection of the concerns or fears (no matter how legitimate) of any party. We note parenthetically that while communication with employees of SCE, without any remedial relief by the Board, may prove to be difficult (but not impossible), the IWA has organized many work places to which it did not have access.
14In addition, the Board’s authority to grant interim relief is limited. The same objectives which underline the Board’s previous jurisprudence still form the exercise of the Board’s discretion under section 98(1). That is, the Board would seek to preserve the status quo in any situation pending the outcome of litigation. An attempt to ensure that the Board’s processes enable it to provide effective remedies, if appropriate, at the end of the litigation. However, section 98(1) limits the Board’s jurisdiction to procedural matters. There is no longer any scope for the exercise of any jurisdiction under the Statutory Powers Procedure Act: McIntosh Limousine Service Ltd. (Board File 3953-99-M, April 28, 2000, R.O. MacDowell, unreported). While the exact meaning of “procedural” may be wider than the meaning which is usually given to those words (see International Brotherhood of Electrical Workers, [1999] OLRB Mar. 202), the Board clearly cannot grant remedies which are purely substantive.
15I will deal with each of the requests for interim relief in order.
Consolidation
16Consolidation is inappropriate. WTL is not a party to the section 96 application and in argument, the IWA specifically declined to seek to add them to the section 96 application. Consolidation (in the sense of creating a single style of cause in a single proceeding before the Board) is therefore inappropriate.
17Both the section 1(4) application and the section 96 application are set for hearing on June 28, 2000. The Registrar is also directed to set the termination application (Board file 0959-00-R) for the hearing for that date. The parties devoted much time in argument as to how the hearing of these three matters ought to proceed. Although each of the responding parties had different views as to which issues ought to be litigated first, it was common ground that the section 1(4) application could not be fully disposed of until the issue of the CMEA’s collective agreement with SCE was determined.
18Following the hearing in these interim applications, WTL, WLI, SCE and CMEU filed their submissions about the order of proceedings with respect to the termination application. All three employer parties submitted that the section 1(4) application should be disposed of before any evidence in the termination application is heard. In addition SCE and CMEU assert that the IWA lacks the status to file a section 66 application. In some senses their reasoning is rather circular. They argue that the IWA may not proceed with its termination application until it is successful in the section 1(4) application, but at the same time assert the existence of the collective agreement as a reason why the Board should not exercise its discretion to grant relief in the section 1(4) application. Further, no such lack of standing is asserted with respect to the IWA’s original section 96 application in which it seeks exactly the same result under section 53.
19Any decision about dealing with certain issues exclusive of others always involves a weighing of the potential for a decision on one issue or set of issues to determine the outcome of the entire case against the risk of duplication of evidence and the consumption of time by objections as to the scope of evidence in any one phase. While it is tempting to express my views of how this matter should be litigated, it would be inappropriate to do so. Expressing my views would be nothing more than that, the opinion of one Vice-Chair about how another panel of this Board ought to conduct a hearing. Notwithstanding that the parties made full argument about the manner in which this case should proceed, this is a matter to be determined by the panel actually hearing the applications.
Expediting the hearing date(s)
20No one opposed the expediting of the hearing, although counsel were, understandably, protective of their calendars. However, this request must be dealt with in the context of the Board’s decisions with respect to the substantive files which these applications relate to. Production was ordered in the section 1(4) application, to be performed on or before May 25, 2000. Accordingly, in order to give effect to a decision to expedite those proceedings, the parties are directed to file a revised hearing estimate by letter on or before June 1, 2000 indicating the number of witnesses they plan to call (although those witnesses need not be identified by name) and the number of days (including anticipated cross-examination, a necessarily approximate task) that each witness will take. The Board will then canvass the parties as to their available dates and schedules. It may be necessary to set dates notwithstanding the availability of some counsel. It may also involve replacing June 28 with another day. The parties will need to deal first with the issue of whether these proceedings should be bifurcated or further subdivided or whether they should all be heard simultaneously. There appear to be no other preliminary issues to be decided by the hearing panel at this time. If there are other preliminary issues, these must be identified in the letter to be delivered on or before June 1, 2000.
Interim Suspension of the CMEU-SCE Collective Agreement
21Even if this is procedural rather than substantive (a question about which the Board has some doubt), such an order would be inappropriate. On a literal level, the “status quo” as of the date that SCE was added as a responding party to the section 1(4) application included the existence of the CMEU and the existence of its collective agreement. Of course, the IWA views the status quo as the situation which obtained at the beginning of the year when it was still attempting to determine the exact nature of the party who was performing the work for Sobeys. Even if the Board were to view the issue from this larger perspective, this relief would not be necessary to preserve the “status quo”. At the end of the day, if the CMEA is found to have a valid collective agreement, suspension of the collective agreement would obviously entail major disruption of the rights and obligations of the CMEU and of the employees it represents. If the CMEU is found to have benefited from employer support, or it is found not to have been entitled to represent employees in the bargaining unit, its collective agreement will be null and void. Whatever harm to the IWA has been done by the operation of the collective agreement and the build-up of support for the CMEU or opposition to the IWA will be nullified by that order of the Board. The CMEU’s collective agreement will cease to exist. (It is not clear if the CMEU represents any other employees.) By virtue of the relief granted by the Board, the IWA will be the sole representative of employees of SCE or will, at the very least, be able to organize among them. That is, at the end of the case, the results of the litigation (if there are any) will not be eroded or placed beyond the reach of the Board’s remedial power by the passage of time.
22Similarly, the request to require the CMEU to pay the dues it receives in trust is inappropriate. More fundamentally, the party who might be harmed by an unlawful deduction of dues is not the IWA, but the employees it seeks to represent. Since the damage is exclusively monetary, and since it seems to the Board that at least SCE could well be liable for a deduction of money from wages without lawful authority, there is no basis for interim relief.
Relief with Respect to Collective Bargaining
23Counsel elaborated on this request in argument. He stated that the IWA was not seeking to negotiate a draft collective agreement with WTL, but merely a “re-opener” clause which would permit the parties to renegotiate the collective agreement in the event that the IWA was successful. Counsel was concerned that simply to impose the collective agreement on a group of employees at SCE who were clearly not contemplated or ever accommodated by the collective agreement would be to create a situation in which the Board’s remedies caused hardship to both the employees and to the IWA in its attempts to represent them.
24The Board was initially concerned that the IWA might be faced with an impossible choice in bargaining, if by signing a renewal collective agreement it thereby prejudiced its claim for relief in the section 1(4) application. However, all of WTL, WLI, SCE, and CMEU agreed that the act of executing a collective agreement by the IWA in circumstances where the bargaining unit description is unchanged and no reference is made to employees of SCE would not in and of itself be a bar to any relief that the Board might otherwise deem fit to grant at the end of the day.
25That being the case, there is no need for relief as sought in paragraph 4 of the application. If the IWA is successful, the Board will be able to grant whatever remedies are necessary to account for a group of employees whose existence is not accommodated by or contemplated in the collective agreement between IWA and WTL. There is no need for this panel of the Board to anticipate what that will be. Obviously, if the IWA is successful, both it and the employer(s) will have an interest in adapting the collective agreement (though from very different perspectives and with different degrees of zeal). Any anticipated problems in doing so can be dealt with by the Board at the time it issues its final decision.
Posting and Meetings with Employees
26Clearly the IWA has an interest in ensuring that its message gets out to the employees of SCE. It is not at all clear why this interest is one the Board should advance by way of an additional posting. By virtue of the postings in the section 1(4) application (recently re-posted to include the reference to SCE) and in the termination application, employees of SCE have been given adequate notice of the legal issues involved and their right to intervene in the process. In the context of this application, the IWA seeks to strike down the collective agreement between SCE and CMEU. It is not seeking to organize the employees of SCE in the face of an apparent violation of the Act by a hostile employer. It does not ask for a vote between it and the CMEU. Indeed, neither does the CMEU (although WTL at the hearing did, for the first time, suggest such a possible outcome). Accordingly, there is no alleged “chilling effect” or an attempt by the IWA to advance its cause among employees of SCE which has been thwarted by alleged unlawful behaviour. Accordingly, even if such relief is procedural (which the posting clearly is and a meeting with employees arguably is), it is not appropriate in the circumstances of the case. That is, it is not necessary to grant this relief in order to preserve the ability of the Board to grant, in a meaningful way, the kind of relief being sought in the application.
Conclusion
27For the reasons given, the parties are directed to follow the process set out in paragraph 20 above with respect to the setting of dates. In all other respects, these applications are dismissed.
“David A. McKee”
for the Board