2723-99-R Teamsters Local Union No. 879, Applicant v. Dufferin Custom Concrete Group c.o.b. as Peninsula Niagara Ready Mix, Responding Party v. Christian Labour Association of Canada, Intervenor.
3047-99-R Christian Labour Association of Canada, Applicants v. St. Lawrence Cement Inc. and Ferma Crushed Stone Inc., Responding Party.
BEFORE: Patrick Kelly, Vice-Chair.
APPEARANCES: James Robbins, Ken Dean and Robert Shewbridge for the Teamsters Local Union No. 879; Simon Mortimer, Nick Caccavella and Dan Notari for Dufferin Custom Concrete Group c.o.b. as Peninsula Niagara Ready Mix; Bill Anderson, Dan Condon, Hank Beekhuis and Terry Wilson for Christian Labour Association of Canada.
DECISION OF THE BOARD; September 19, 2001
Board File No. 2723-99-R is an application for certification. Board File No. 3047-99-R is a related employer application.
The hearing in these matters commenced on January 17, 2000 at which time I determined to hear the application for certification, and, to the extent necessary, deal with the related employer application after issuing a decision concerning the timeliness of the certification application. I also ordered that all but the two segregated ballots cast in the representation vote be counted. The result was ten ballots in favour of the Teamster Local Union No. 879 (“the Teamsters”), one against.
Six further hearing days were taken up with the timeliness issue. This decision deals only with that issue.
Background
- St. Lawrence Cement Inc. (“St. Lawrence” or “the employer”) is a large manufacturer of ready-mix concrete. It has had, and continues to have, collective bargaining relationships with both the Teamsters and the Christian Labour Association of Canada (“CLAC”). This application for certification pits the Teamsters and CLAC against each other with regard to bargaining rights for approximately a dozen employees employed in a ready-mix plant in Niagara Falls. That plant was purchased by St. Lawrence in November 1999. Shortly thereafter, on December 6, 1999, the Teamsters filed an application for certification in respect of the employees of “St. Lawrence Cement Inc. operating as Dufferin Custom Concrete Group c.o.b. as Peninsula Ready Mix (Niagara Falls Plant)”. CLAC asserts that it has bargaining rights for the employees in the Niagara Falls plant pursuant to the geographic scope clause in a collective agreement it has with St. Lawrence operating as Peninsula Ready Mix & Supplies (“the CLAC collective agreement”). The geographic scope clause in the CLAC collective agreement, whose term is May 15, 1999 until May 14, 2002, provides as follows:
2.02 This Agreement covers all employees of the Employer save and except foremen, persons above the rank of foremen, office and sales staff working in the Province of Ontario.
- CLAC’s position is that the above-noted clause confers upon CLAC bargaining rights at any St. Lawrence facility in Ontario operated as Peninsula Ready Mix or Peninsula Ready Mix & Supplies. The Teamsters, of course, opposed CLAC’s position. Throughout these proceedings, the employer took no position concerning the issue as to whether or not CLAC has the bargaining rights for the Niagara Falls plant.
The issues
- The issues to be determined are the identity of “the Employer” and the geographic scope of CLAC’s bargaining rights in the CLAC collective agreement. Those issues necessitate an assessment of the evidence concerning all permutations of the business of, and trade names associated with, Pensinsula Ready Mix & Supplies, as well as an analysis of CLAC’s history of bargaining with Peninsula Ready Mix & Supplies.
The evidence
The history of CLAC’s bargaining rights in Peninsula Ready Mix & Supplies
CLAC first acquired bargaining rights in respect of Peninsula Ready Mix & Supplies Limited (“PRM&S”) in 1967, at its ready-mix plant in Beamsville. The certificate referred to employees of “Peninsula Ready Mix & Supplies Limited at Beamsville”. At the time, PRM&S was owned by Ed Bass, who previously operated the business as a sole proprietorship. The Beamsville facility was PRM&S’s only plant in 1967. Deeply rooted in the local community, PRM&S was also the largest and most visible ready-mix operation in the Hamilton-Niagara region at the time. Its primary business focus was the area from Niagara Falls to the east side of Hamilton, but it ultimately attracted customers from the east end of Toronto stretching as far as Fort Erie.
The recognition clause in the first collective agreement covering PRM&S following CLAC’s certification read as follows:
2.01 In accordance with the Certificate issued by the Ontario Labour Relations Board on April 13, 1967, the Employer recognizes the Union as the bargaining agent of all its employees, save and except foremen, persons above the rank of foreman, and office staff.
The original recognition clause remained fundamentally unchanged in all subsequent renewal collective agreements, until 1990.
The main competitor of PRM&S was Regional Ready Mixed Concrete Co. (“RRMC”). CLAC acquired bargaining rights with that organization at its Dundas location. The first collective agreement covering RRMC commenced in November 1979. The PRM&S and RRMC bargaining units were serviced by different CLAC representatives, but these representatives met frequently, and as it turned out, the respective collective agreements that emerged bore a number of similarities in terms of remuneration and other typical bargaining provisions. Both collective agreements eventually contained recognition clauses with apparent province-wide scope. That fact has some bearing in the later development whereby St. Lawrence became the owner of PRM&S and RRMC, and ultimately operated each as distinct divisions of the corporation. As indicated, it is CLAC’s position that its bargaining rights under the CLAC collective agreement attach to any additional plant established by St. Lawrence in Ontario using the “Peninsula” name. This position must be viewed in light of the collective agreement reached in July 1998 between “St. Lawrence Cement Inc. operating as Regional Ready Mixed Concrete” and CLAC. That agreement contains “Letter of Understanding #1” which contemplates that, in the event PRM&S or any other entity of St. Lawrence opens a plant in Glanbrook Township, RRMC employees at its Dundas location will have first opportunity to be transferred there. Only after that opportunity has been acted upon do other work opportunities open up to other CLAC bargaining units. To the extent that staff from those non-RRMC bargaining units transfer to a plant in Glanbrook Township, the letter of understanding stipulates that their seniority commences from the date of transfer. The RRMC employees at Dundas, however, are permitted to bring their previously acquired seniority with them to Glanbrook Township.
In 1985, PRM&S expanded its operation beyond Beamsville. It opened a satellite plant in Caledonia, to compete with RRMC in its own area of business. (At some point, RRMC adopted a similar strategy, opening a plant in Smithville so as to compete directly for PRM&S customers in the area). PRM&S used its Beamsville employees to ready the Caledonia plant. CLAC asked for, and received, voluntary recognition by PRM&S for the employees working out of the newly opened plant. A first collective agreement commencing June 4, 1985 was concluded, containing the following recognition and geographic scope clauses:
2.01 The Employer recognizes the Union as the sole bargaining agent of all employees in the bargaining unit as defined in Article 2.02 and/or classified in Schedule “B” attached hereto and made part hereof.
2.02 This agreement covers all employees of the Employer in the bargaining unit defined in the Letter of Agreement dated June 4, 1985 that is all the employees of the Employer employed at Caledonia, Ontario save and except foremen, persons above the rank of foreman, office and sales staff.
- The renewal collective agreement covering Caledonia from 1986 until 1988 contained a minor change to the previous article 2.02. The new clause provided as follows:
2.02 The Employer agrees to voluntarily recognize the Union as the sole and exclusive bargaining agent for all the employees of the Employer employed at Caledonia, Ontario save and except foremen, persons above the rank of foreman, office and sales staff.
- Further changes to article 2.02 were introduced in the subsequent Caledonia renewal contract, covering the period from 1988 to 1990. That provision is set out below:
2.02 This Agreement covers all employees of the Employer in the bargaining unit as defined in the Certificate issued by the Ontario Labour Relations Board dated April 13, 1967, that is all its employees, save and except foremen, persons above the rank of foreman, and office staff.
With respect to this last revision, and its reference to a certificate issued by the Board in respect of Beamsville, CLAC’s evidence was that this was an error.
Between 1985 and 1989, PRM&S interchanged employees in Beamsville and Caledonia to the point that, in 1989, CLAC demanded a single collective agreement covering all employees in both plants. CLAC wanted to protect both plants in the event that rumours concerning a possible take-over by St. Lawrence Cement Inc. came to pass. Accordingly, CLAC and PRM&S entered into a memorandum of settlement dated December 20, 1989, just months prior to the expiry of the Beamsville and Caledonia collective agreements. In initial draft form, the memorandum of settlement purported to establish a collective agreement covering two plants: the one in Caledonia, and, in anticipation of a rumour that St. Lawrence would purchase both PRM&S and RRMC (including its plant in Smithville), the Smithville plant should it come into the PRM&S fold. However, the signed memorandum of settlement deleted reference to the plant in Smithville, and substituted the word, “Ontario” in its place. Thus, clause 7 of the memorandum of settlement provided as follows:
Create a new collective agreement to include Ontario and Caledonia in one agreement and time to expire at the same time as Regional Ready Mix – 2 years.
CLAC’s evidence concerning the reference to “Ontario” was that it was intended to confer bargaining rights to CLAC in the event PRM&S opened any plant in Ontario. According to CLAC, over the late 1980’s the competition between PRM&S and RRMC resulted in some considerable speculation about what new ready-mix plants might spring up, thereby permitting the employers to move work away from the already established plants. According to CLAC, its motives in consolidating its bargaining rights during this period were to protect the existing work of its members, and to ensure that if the work changed location, its members would not be disadvantaged.
Following the execution of the memorandum of settlement in December 1989 but before execution (on February 16, 1990) of the two-year collective agreement that flowed from it, PRM&S was sold to St. Lawrence. However, the parties to the subsequent renewal collective agreement remained PRM&S and CLAC. That two-year collective agreement negotiated between CLAC and the new owner of PRM&S contained the following geographic scope clause:
2.02 This Agreement covers all employees of the Employer save and except foremen, persons above the rank of foremen and office and sales staff working in or out of its plant in Beamsville and Caledonia.
Some time after execution of the collective agreement, the Caledonia plant closed because its purpose in competing for RRMC customers was eclipsed once St. Lawrence owned both PRM&S and RRMC. As noted earlier, St. Lawrence operated PRM&S as a corporate subsidiary.
In 1992, the collective agreement’s geographic scope clause was amended yet again. It provided as follows:
2.02 This Agreement covers all employees of the Employer save and except foremen, persons above the rank of foremen, office and sales staff working in the Province of Ontario.
The language of article 2.02 has remained the same since 1992.
Again, CLAC’s evidence concerning the origin of the 1992 geographic scope clause was that, due to rumours regarding plans by St. Lawrence to expand its ready-mix operation, particularly into the Niagara Falls region, CLAC wished to ensure a concomitant consolidation of its bargaining rights in any new plant coming under the PRM&S umbrella.
In 1997, PRM&S opened a ready-mix plant in Thorold. It was a seasonal plant, routinely shut down over the winter season. It was also portable. For the most part, the Thorold plant was entirely staffed by Beamsville employees assigned there during Thorold’s seasonal operation. CLAC’s only witness in this matter, Mr. Hank Beekhuis, CLAC’s business representative in respect of PRM&S, met with PRM&S officials on May 2, 1997 to discuss, among other things, the labour relations implications of the Thorold operation. Mr. Beekhuis wrote a letter the same day outlining his perspective of that meeting. The relevant portions of that letter are set out below:
May 2, 1997
Mr. Renzo Giancaterino
Peninsula Ready-Mix & Supplies Inc.
P.O. Box 496
Beamsville, ON L0R 1B0
Dear Renzo:
Just to confirm our understanding of the results of this morning’s meeting.
Thorold Plant:
It is understood that this plant will fall under the terms of the Peninsula agreement as a satellite plant. Senior drivers will be offered the option of being stationed there first. Once there they will normally be expected to stay for the season. The seniority list will remain as one list. Efforts will be made to keep the starting times in order as much as possible, however it is recognized that this may not always be possible. If serious difficulties develop the employees may bump back to Beamsville permanently or the parties will sit down to work out a mutually agreeable solution. The Stewards and Management will sit down within 30 days of opening to review the call-in procedures as well as any other issues that may arise with regards to this plant.
I trust this reflects our mutual understanding.
There was some debate between counsel for CLAC and for the Teamsters as to whether CLAC obtained voluntary recognition from PRM&S regarding the Thorold plant, or the parties simply agreed that the Beamsville collective agreement applied to Thorold. I will have more to say about that later. For the purposes of this part of the decision, it is sufficient to note that CLAC appears to have asserted bargaining rights for employees at Thorold, and that PRM&S did not challenge that assertion.
As of 1999, CLAC’s bargaining rights with PRM&S were limited to the Beamsville and Thorold sites. The Caledonia plant for which CLAC had bargaining rights was, by this time, no longer operating, and there were no employees working there.
In the early part of 1999, St. Lawrence restructured its business, eliminating corporate divisions and establishing a new structure built around business divisions and trade names. Thus, PRM & S’s corporate status came to an end, and it was rolled into the overarching corporate structure of St. Lawrence Cement Inc. Its business was carried out under the Peninsula Ready Mix trade name.
Following St. Lawrence’s restructuring, the collective agreement between CLAC and “St. Lawrence Cement Inc. operating as Peninsula Ready-Mix & Supplies” was negotiated, with a duration from May 15, 1999 until May 14, 2002. As a result of the advice it had been given by officials of St. Lawrence, CLAC entered and concluded the negotiations for this collective agreement with the understanding that the corporate restructuring would not affect the operations of PRM&S despite the loss of its corporate status. Moreover, CLAC believed that it continued to have bargaining rights for both the Beamsville and Thorold sites, as well as any plant operated in the future under the PRM&S name. Nothing in the negotiations disabused CLAC of that notion (although the recognition clause itself was not specifically discussed). There was discussion during the course of negotiations of St. Lawrence’s desire to gain greater access to the Niagara Falls market. Apparently, at the time, there was considerable speculation about the pent-up demand for construction in the Niagara Falls area, much of it due to expected growth resulting from the opening of a casino in the City of Niagara Falls.
The purchase by St. Lawrence of Ferma
Ferma Crushed Stone Inc. (“Ferma”) owned two ready mix plants, a non-union plant in Niagara Falls (“the Niagara Falls plant”), and a facility in Malton where another local of the Teamsters has bargaining rights. Ferma’s ready-mix plant in Niagara Falls came into existence shortly after PRM&S opened its plant in Thorold in 1997. Its purpose was to compete for PRM&S customers in Niagara Falls, which was the Thorold site’s main business focus. St. Lawrence responded to this threat by purchasing Ferma for its own, including Ferma’s plant in Malton. Moreover, St. Lawrence decided to assign the Niagara Falls plant to the Dufferin Custom Concrete Group’s Hamilton Niagara District where the plant would operate as Peninsula Ready Mix.
Rumours of the acquisition circulated in early November 1999. Unlike the 1997 establishment of the Thorold plant, which was staffed by Beamsville employees, the acquisition of Ferma involved the employment by the purchaser of a former competitor’s pre-existing workforce. Thus, CLAC became concerned with the effect of the sale of the Niagara Falls plant on the work at PRM&S’s Thorold site. It feared layoffs there, as a result. A week prior to the sale on November 18, 1999, CLAC had contact with officials responsible for the PRM&S business who confirmed the rumours and advised that St. Lawrence intended to operate the Niagara Falls plant as a “Peninsula plant under the Peninsula banner”. Later that week, the employees at the Beamsville location attended an employee meeting and were informed (either by PRM&S or St. Lawrence officials) of the Ferma purchase and St. Lawrence’s intention to operate the Niagara Falls plant under the Peninsula Ready Mix banner. The employees became aware that the Niagara Falls plant would be temporarily shut down immediately (for purposes of retrofitting and computer upgrading), and that, in the meantime, the truck drivers there would be reassigned to the Beamsville plant. According to CLAC’s evidence, the employees were told there was enough work to keep everyone employed.
The agreement to purchase Ferma was concluded on November 18, 1999. On November 22, 1999 CLAC notified the Manager of PRM&S in writing that it considered the employees at the Niagara Falls plant to be covered by the CLAC collective agreement with St. Lawrence. Apparently, there had been previous oral communications to similar effect. CLAC also issued a second letter on November 22, 1999 in which it set out its expectations for the Niagara Falls employees with respect to the collective agreement’s provisions regarding wage levels, union dues and benefit/pension remittances. That letter warned of grievances if those expectations were not realized. St. Lawrence neither expressly agreed with nor opposed CLAC’s claim to bargaining rights. The employer did establish wage rates reflecting those paid at Beamsville, but it did not otherwise act to bring the Niagara Falls plant within the parameters of the CLAC collective agreement in effect at the time. Consequently, CLAC issued a group grievance via letter of December 7, 1999, one day after the Teamsters filed the application for certification.
Soon after the purchase of Ferma, and before the Teamsters’ application for certification on December 6, 1999, the Teamsters and CLAC became active at the site of the Niagara Falls plant. Each attempted to sign the Niagara Falls non-union drivers to union membership.
As it turned out, and for reasons that need not be detailed here, the Niagara Falls plant did not shut down immediately. The shutdown occurred later in December 1999. At that point, the Niagara Falls plant’s non-union dispatcher was temporarily assigned to Beamsville. The former Ferma drivers at Niagara Falls were laid off, although some of them appear to have obtained work at the Beamsville plant.
Following the date of purchase of Ferma, St. Lawrence took immediate steps to change the marketing and outward appearances of the business, so that, in the public’s mind, the Niagara Falls plant was identified with the name Peninsula Ready Mix. These steps included re-signing the Niagara Falls plant, and using mixer trucks with Peninsula Ready Mix markings or those of Dufferin Custom Concrete Group. However, the process of preparing a homogenous fleet of trucks has been a gradual one, not complete at the conclusion of the evidence given in this matter.
There were also efforts to link the Niagara Falls plant with the name Dufferin Custom Concrete Group (“DCCG”), an organization described in more detail below. Some trucks at the Niagara Falls plant bear the DCCG colours and logos. The “Niagara Peninsula” 1999 and 2000 price lists tendered in evidence give clear prominence to the DCCG name and logo, and list the Peninsula Ready Mix and Clem’s Ready Mix divisions and phone numbers.
Impact of the acquisition of Ferma on the Beamsville plant
The evidence concerning customer lists and hours of work as between various ready-mix plants, including the Niagara Falls plant and the Beamsville plant, was inconclusive as to whether there was any significant loss of business or work suffered by the Beamsville plant as a result of the purchase of the Niagara Falls plant. There appears to have been a decrease in business at Beamsville following the acquisition of Ferma, but the extent, if any, of the impact of the sale on the decrease is not clear.
A number of factors may have played a role in the downturn of Beamsville’s business. The ready-mix industry is competitive. New players appear on the scene from time to time, and there was evidence of the sudden emergence of just such an entity around the time of the Ferma sale. It is not obvioius that Beamsville drivers lost any work as a result of the sale. From time to time, truck drivers normally working out of one plant can and do work out of other DCCG plants in the Hamilton Niagara District. What is clear is that there was customer overlap between the divisions of DCCG in the Hamilton Niagara District. For example, as between the Niagara Falls plant and the Beamsville plant, the former served as many as 100 of the latter’s customers after the purchase. Moreover, the Niagara Falls plant caters to the market which the Thorold plant served prior to its closing. St. Lawrence also served the Niagara peninsula market through other operations such as Clem’s Ready Mix in Welland. As I have indicated, there are no exclusive sales territories or geographic markets assigned to any particular DCCG plant within the Hamilton Niagara District.
St. Lawrence’s organizational structure and utilization of Peninsula Ready Mix trade name
St. Lawrence engages in four types of business: cement manufacturing, concrete ready mix, aggregates and construction. In Ontario, the concrete ready mix is arranged into two units, one under the name Dufferin Custom Concrete Group (“DCCG”), the other referred to as Boehmers. The Ontario units are made up of business districts. DCCG is comprised of three such business districts. DCCG’s Hamilton Niagara District includes four divisions operating under the following trade names: Peninsula Ready Mix & Supplies (the Beamsville and Niagara Falls plants), Clem’s Ready Mix (in Welland), Regional Ready Mixed Concrete (on Nebo Road in Clanbrook) and Dufferin Custom Concrete (in Burlington). CLAC is the bargaining agent for employees at the Beamsville plant, as well as for employees in the Regional Ready Mixed Concrete facility in Clanbrook. The Teamsters represent employees in Welland at the Clem’s Ready Mix plant, and in Burlington at the Dufferin Custom Concrete operation.
DCCG is headed by a general manager. District managers in each of DCCG’s three business districts report to the general manager. Each district employs a sales manager, reporting to the district manager. The sales manager in the Hamilton Niagara District oversees a small team of salespersons, who solicit business for all the plants within the district. No one salesperson is assigned to any particular plant. Similarly, the Hamilton Niagara District utilizes a distribution supervisor and quality control supervisor who oversee work on behalf of all five of the district’s plants. The administration function is also centralized, as is plant facility maintenance. Dispatching, batching and product/raw material delivery and vehicle maintenance functions are not centralized in the same manner – each plant has its own dispatcher, batcher, truck drivers, loader operators and mechanics. The truck drivers do not necessarily work out of one plant exclusively. Depending on business needs, they may from time to time deliver loads from other than their “home” plants.
The Niagara Falls plant does not fit precisely the mould of DCCG’s organizational structure. Unlike the other plants in the Hamilton Niagara District, the sales function in the Niagara Falls plant is locally managed and not centrally located within the DCCG organization. The Niagara Falls plant is headed by an operations manager, an anomalous position with responsibility for both the plant operations and sales.
DCCG’s organizational structure does not contemplate discrete management of each of DCCG’s four divisions. The business of the divisions is the sole responsibility of one individual: the district manager. Similarly, no one of the divisions/plants in the Hamilton Niagara District has an exclusive sales territory. They all compete for business throughout the district, although it bears noting that the most cost-effective factor in carrying on business in the ready mix industry is proximity of customers to the plant.
DCCG’s pricing in the Hamilton Niagara District is the same for all its divisions/plants. The Beamsville plant serves as the administrative head office for all of DCCG’s plants in the Hamilton Niagara District. It is not uncommon, during periods when one plant’s business is slow, or a plant is shut down, for the Hamilton Niagara District to temporarily utilize the ready-mix truck drivers from the affected plant in another, more active part of the district operation. These arrangements reflect the strategy of St. Lawrence to use a variety of trade names to pursue whatever ready-mix business is available in its three districts. Generally, the plants closest to the customer or the available market serve that customer or market because that is the most cost-effective method of transporting product.
The plants in Beamsville and Niagara Falls promote their businesses and products using the Peninsula Ready Mix trade name, although as indicated earlier, there is also some promotion at the Niagara Falls plant of the DCCG colours and logos. The names Peninsula Ready Mix and Peninsula Ready Mix & Supplies are used interchangeably. The target service area includes customers in Beamsville, Niagara Falls and St. Catherines, and, to a lesser extent, Welland, bearing in mind that there is no defined sales territory as such for any of DCCG’s divisions within the Hamilton Niagara District. There is considerable overlap between the Beamsville and Niagara Falls sites with respect to common customers, and some customer overlap between all divisions in the Hamilton Niagara District.
Decision
There are three issues for determination. The first issue that I must determine is whether I may, as a matter of law, consider extrinsic evidence in interpreting the CLAC collective agreement which CLAC contends is a bar to the Teamsters certification application. If so, the second issue arises, namely, the extent to which I may or should consider the evidence beyond the date of the filing of the Teamsters’ application for certification, December 6, 1999. Thirdly, what findings of fact should be made?
In support of its position with respect to these issues, the Teamsters referred me to the following authorities: R. v Barber et al. ex parte Warehousemen and Miscellaneous Drivers’ Union Local 419 (1968), 68 CLLC para 14098 (Ont. CA), aff’g (1967) 67 CLLC para 14047 (Ont. HC); John Bertram & Sons Co. Ltd. (1967), 1967 CanLII 1039 (ON LA), 18 L.A.C. 362; DS Investments Limited, [1982] OLRB Rep. Nov. 1657; The Corporation of the City of Etobicoke, [1983] OLRB Rep. Nov. 1825; Accomodex Franchise Management Inc., [1993] OLRB Rep. April 281; Zellers Inc., [1995] OLRB Rep. August 1141; Grand Valley Ready Mixed Concrete Supply Limited, [1981] OLRB Rep. June 663; Perma-Mix Limited, [1971] OLRB Rep. April 242; J.A. Wilson Display Ltd., [1983] OLRB Rep. July 1080; Peterborough County Board of Education, [1969] OLRB Rep. Aug. 636; Dingwell’s Machinery & Supply Limited, [1995] OLRB Rep. 1058; Bestview Holdings Limited, [1983] OLRB Rep. 1250; Duplate Canada Ltd., 60 CLLC para 16,169; C.G.T. Industries Ltd., [1979] OLRB Rep. April 285; Niagara Crushed Stone (Humberstone) Ltd. 58 CLLC para 18,119; Hiram Walker & Sons (1960), 61 CLLC 902; Burns International Security Services Limited, [1996] OLRB Rep. Mar./Apr. 192; The Corporation of the City of Scarborough, [1994] OLRB Rep. Mar. 300; RCA Victor Company Limited, Prescott, Ontario, 56 CLLC 18045.
CLAC’s argument canvassed the following authorities: Canadian Appliance Manufacturing Company Limited, [1979] OLRB Rep. Jan. 8; Kitchener-Waterloo Hospital, [1991] OLRB Rep. Oct. 1130; Romzap Ltd. c.o.b. as Sheraton Fallsview Hotel & Conference Centre, [1995] O.L.R.D. No. 5190; G & B Automated Equipment Ltd., [1983] OLRB Rep. Nov. 1840; Canadian Appliance Manufacturing Company Limited, [1979] OLRB Rep. Jan. 8; Mountain View Dairy, [1967] OLRB Rep. Feb. 911; and City of Peterborough, [1979] OLRB Rep. Feb 133].
In my view, while the authorities cited above are of some assistance in addressing the issues in this matter, this case involves a set of facts quite distinct from the factual underpinnings of the cases to which counsel referred. All three counsel appeared to share the view that none of the authorities cited in argument would provide definitive guidance on the question of the scope of CLAC’s bargaining rights. That question is chiefly determined by the conclusions to be drawn by the evidence adduced by the parties.
In what circumstances is it appropriate to consider extrinsic evidence?
It is well established in the law of contract that the interpretation of the term or terms of an agreement between parties must be confined to the written language that the parties have chosen to convey their intent, unless the particular written language under scrutiny is ambiguous or unclear in its meaning: see, for example, R. v Barber et al. ex parte Warehousemen and Miscellaneous Drivers’ Union Local 419, supra and The Corporation of the City of Etobicoke, supra.
I have referred to the language of the CLAC collective agreement that is the subject of this case, but for convenience, I set it out here again:
2.02 This Agreement covers all employees of the Employer save and except foremen, persons above the rank of foremen, office and sales staff working in the Province of Ontario.
Both CLAC and the Teamsters took as their initial position in argument that article 2.02 was unambiguous in meaning. CLAC claimed the clause unambiguously establishes a province-wide scope to the bargaining unit, thus capturing all employees of the employer in both its current and future expanded operations. The Teamsters, on the other hand, contended that article 2.02 clearly conveys that the bargaining unit is site specific, because the collective agreement makes mention (in article 14.11) of Beamsville and Caledonia, two sites out of which the employer, St. Lawrence Cement Inc. trading as Peninsula Ready-Mix & Supplies, operated. The collective agreement does not refer to Ferma, to Niagara Falls or to the Niagara Falls plant, and consequently, the Teamsters contend, CLAC has no basis to claim bargaining rights for the employees at the Niagara Falls plant.
In my view, clause 2.02 is ambiguous. The placement of the words “working in the Province of Ontario” following the listed exemptions from the bargaining unit itself confounds the reader. But of far greater significance for purposes of this inquiry, is the ambiguity concerning the identification of the employer. The words “the Employer” in clause 2.02 refer back to the collective agreement’s style of cause, which defines “the Employer” as St. Lawrence Cement Inc. operating as Peninsula Ready-Mix & Supplies. The entity “Peninsula Ready-Mix & Supplies” is not defined elsewhere in the collective agreement. It is not possible, short of resorting to extrinsic evidence, to come to a conclusion about what that entity entails or comprises. I am therefore satisfied that I can and must consider the relevant extrinsic evidence that was adduced concerning the interpretation of clause 2.02. Moreover, I accept the Teamsters argument (which was not opposed by CLAC or the company) that the extrinsic evidence must itself be clear and unambiguous in support of CLAC’s position that the Niagara plant falls within the geographic scope of the CLAC collective agreement, thus barring the Teamster’s certification application.
How much of the evidence should be considered in this application?
The next issue is the extent of the evidence adduced which I can consider. The Teamsters argued that I should not consider any evidence beyond December 6, 1999, the date of the filing of the application for certification. The central question in this matter is whether CLAC had a collective agreement on December 6, 1999 that covered the Niagara Falls plant, that was not subject at the time to an “open period” under the Act, and that effectively rendered any application for certification untimely. According to the Teamsters, the sale of Ferma was the crystallizing event upon which CLAC’s assertion of bargaining rights rests, and therefore there is no reason to look at evidence that arose after the sale, and certainly not beyond December 6, 1999. Moreover, the Teamsters argued that, as a matter of policy, I should not consider any evidence after December 6, 1999 because of the potential for mischief by way of the fabrication or manipulation of evidence to suit a party’s position.
CLAC urged me to consider all the evidence, including that in relation to events following December 6, 1999. That would include the evidence concerning the loss of business at the Beamsville plant in 2000. CLAC reasoned that, as it had been informed prior to the Teamsters’ application for certification of St. Lawrence’s intention to operate the Niagara plant as a Peninsula Ready Mix operation, it is appropriate to consider the post-application events to determine if the intention became reality.
The authorities cited by the Teamsters do not, in my view, go so far as to suggest that, as a matter of law, post-application evidence must never be considered. For obvious reasons, the Board should only consider such evidence in this matter if it is relevant to the issues in dispute and is sufficiently reliable. Such evidence must be very carefully scrutinized to determine its reliability. In the instant case, there was little, if any, material dispute concerning events after the application for certification was filed on December 6, 1999. However, the interpretation of the evidence - concerning, for example, the shared customers and the relative increases or decreases of business as between the Beamsville and Niagara Falls plants - was certainly in dispute. While I am satisfied that I can consider the evidence after December 6, 1999, I am less satisfied that it assists either the position of the Teamsters or CLAC. As I have indicated, the mere fact that Beamsville’s business in 2000 was not what it was in 1999, or that the Beamsville and Niagara Falls plants shared customers, is not conclusive proof of any particular business relationship between the two plants, notwithstanding the common trade name under which they were marketed and promoted.
Conclusions of fact
This brings me to the third, and most critical question: what conclusions of fact should be drawn with respect to CLAC’s assertion of province-wide bargaining rights, bearing in mind that assertion must be clearly established from the evidence. In my view, for reasons that follow, the evidence did not establish that CLAC’s bargaining rights with St. Lawrence extend without limitation throughout the Province, thus capturing the Niagara Falls plant.
I turn first to the significance of St. Lawrence’s decision to operate the Niagara Falls plant under the Peninsula Ready Mix division. Does that decision, and the resultant changes in promotion of the plant as a Peninsual Ready Mix operation bring the plant within CLAC’s grasp? In my view, there would have to be an obvious and exclusive connection between the Beamsville and Niagara Falls plants to arrive at a conclusion in favour of CLAC. The bargaining history suggests that when there was such an exclusive connection between Beamsville and another plant, CLAC had a basis for a legitimate claim to bargaining rights at the new site. Historically, the connection manifested itself in the form of predominant utilization of Beamsville bargaining unit employees in the new operation. The acquisition of the Niagara Falls plant, however, was an entirely different matter. Unlike the Caledonia and Thorold operations, the Niagara Falls plant was purchased from a competitor, as a going concern, with a fully functioning workforce. Beamsville employees neither set up the Niagara Falls plant nor contributed to its operation. To the extent there has been interplay between the Beamsville and Niagara Falls workforces, so too has there been workforce interplay between all the DCCG divisions in the Hamilton Niagara District. That is how DCCG’s Hamilton Niagara District operates – if a plant in one division is not operating at full capacity, its drivers from time to time are assigned to help out at other divisions within the District until the “home” business picks up again. Similarly, there was no exclusivity as between the Beamsville and Niagara Falls with respect to shared customers. The overlap of customers is a phenomenon that permeates throughout the Hamilton Niagara District. Nor was there anything unique between the Beamsville and Niagara Fall plants in terms of management or organizational structure. In fact, Peninsula Ready Mix and Supplies division has no obvious management structure associated with it that is severable from the management structure of DCCG’s Hamilton Niagara District as a whole.
The only feature linking the Beamsville and Niagara Falls plants to the exclusion of all others is a name. The trade name “Peninsula Ready Mix” or “Peninsula Ready Mix & Supplies” is used to promote the business of those two particular sites. No doubt that name has considerable value to St. Lawrence. Presumably, there was nothing to prevent St. Lawrence from placing the Niagara Falls plant into the Clem’s Ready Mix division in nearby Welland (in which case, the circumstances of this matter would most probably never have arisen). One can only assume that at least one factor in opting for the Peninsula Ready Mix trade name was the belief that it would assist in maximizing business for the new plant. That is a perfectly valid commercial objective. But in this, a labour relations inquiry involving competing claims to represent employees, the mere attribution by an employer of a previously existing trade name to a newly acquired asset should not determine the question of representation rights. Such a result would invite mischief and render employee wishes irrelevant.
I next turn to a consideration of the development of the network of collective bargaining arrangements and collective agreements that pertain to the DCCG divisions, particularly those involving PRM&S and RRMC respectively. CLAC’s bargaining rights at PRM&S’s began with the 1967 issue of a certificate in respect of the Beamsville plant. The geographic scope clauses in the ensuing collective agreements over the next 18 years consistently referred to the certificate (but with no direct reference to the certificate’s, or any other, geographic parameters) and defined the bargaining unit generally in terms of certain employees of “the Employer”. Throughout that period, “the Employer” consisted of a single-plant operation known as PRM&S. That changed in 1985 when the Caledonia satellite plant commenced operations. Rather than seeking to bring the Caledonia plant within the parameters of the PRM&S collective agreement applicable to Beamsville, CLAC and the employer were content with a separate collective bargaining regime for the Caledonia location. Because of the ensuing and increasing use of Beamsville employees in the Caledonia operation, CLAC eventually sought and obtained an agreement from Mr. Bass to consolidate those separate bargaining regimes. Interestingly, that agreement commits the parties to “[c]reate a new collective agreement to include Ontario and Caledonia in one agreement…”. But what followed from that was a 1990 collective agreement whose recognition clause referred to the employer’s plants in Beamsville and Caledonia. There was no reference to Ontario, and CLAC’s evidence was unable to explain how the words “Ontario and Caledonia” in the memorandum of settlement preceding the collective agreement became “Beamsville and Caledonia” in the 1990 collective agreement. The inescapable inference to which I am drawn is that “Ontario” in the memorandum of settlement meant the Beamsville plant. To put it another way, “Ontario” referred to all of the employer’s operation in Ontario that existed at the time. That is the only way to understand why, in addition to the word “Ontario” in the 1989 memorandum of settlement, it was also necessary to name Caledonia specifically. Such a conclusion implies that the parties had not intended to create an all-Ontario scope clause capturing all future operations of PRM&S.
That the PRM&S recognition clause applicable to Beamsville was not intended to confer upon CLAC bargaining rights throughout the province wherever PRM&S might operate is supported by the collective bargaining developments at rival RRMC where CLAC also held bargaining rights pursuant to a recognition clause that is ostensibly province-wide in scope. As I have indicated, the RRMC 1998 collective agreement contained a letter of understanding contemplating the process by which a new plant opened by PRM&S would give preferential hiring rights to RRMC employees. By this time, the applicable collective agreement covering PRM&S contained a recognition clause with express reference, not to any particular plant location, but to Ontario. However, there is no reasonable way to reconcile the assertion that that recognition clause conferred province-wide bargaining rights for CLAC at PRM&S (or, for that matter, at RRMC) throughout Ontario with this letter of understanding. It is possible to make sense of the situation if the PRM&S recognition clause is read to cover only the two going concerns of PRM&S at the time, namely the plants in Beamsville and Thorold. The letter of understanding from the RRMC collective agreement makes more sense in that context, given that CLAC was a signatory to both the PRM&S and RRMC collective agreements, and that CLAC’s representatives serving the PRM&S and RRMC bargaining units respectively strove to avoid conflict between, and shared labour relations information pertinent and common to, those bargaining units.
To this stage, then, in 1998, the evidence of bargaining history reveals that the recognition clauses in the PRM&S collective agreements applicable to Beamsville were not intended to be truly provincial in scope. Rather, whenever PRM&S expanded beyond Beamsville, and when those expansions directly involved CLAC’s bargaining unit members in Beamsville, CLAC interceded to protect the work of the Beamsville members. In the case of Caledonia, CLAC was content for some time to maintain a separate bargaining regime covering that plant. When Thorold came on stream in 1997, CLAC again asserted itself, and came to an understanding with PRM&S that Thorold would be covered under the terms of the collective agreement applicable to Beamsville. Whether that understanding constituted a voluntary recognition agreement or acknowledgement of an accretion to the bargaining unit is not critical for the purposes of this decision. What is significant is that Mr. Beekhuis’s May 2, 1997 letter refers to the Thorold plant as “a satellite plant”. The implication clearly is that the Thorold facility is a satellite of the main Beamsville operation, and further, that its satellite status derives from the fact that Beamsville bargaining unit employees were to be utilized in its operation. It is the connection to Beamsville, not the reference to Ontario in the geographic scope clause, that appears to the basis upon which CLAC asserted bargaining rights for the Thorold plant.
The last collective agreement applicable to Beamsville, the one CLAC contends captures the Niagara Falls plant, contains no change to the words of the previous geographic scope clause. It continues to refer to the Province of Ontario. However, at this point, “the Employer” is no longer PRM&S, but St. Lawrence Cement Inc. operating as Peninsula Ready-Mix and Supplies. The evidence showed that CLAC was told during the 1999 collective bargaining negotiations, that the change in employer name would not result in any labour relations change vis-à-vis the relationship with CLAC. There was no negotiation concerning a new geographic scope clause, but, as I indicated earlier, there was some discussion during collective bargaining concerning St. Lawrence’s desire to establish a ready-mix presence in Niagara Falls. There was little in the evidence suggesting how that objective might be realized. However, up until this round of bargaining, any expansions directly affecting Beamsville had been achieved through the establishment of seasonal plants operated by Beamsville employees. In those circumstances, CLAC asserted bargaining rights. There was no evidence to suggest that it attempted to sign individuals to union membership in furtherance of that assertion. That would have been unnecessary, given that the Beamsville employees played a large role in the set-up and operation of the satellite plants. Perhaps CLAC anticipated much the same sequence of events should St. Lawrence establish a Niagara Falls presence. But nothing in this round of bargaining suggests one way or the other that the parties intended any change in the way the geographic scope clause would apply in the face of an expansion of business. Furthermore, even though CLAC acted quickly to assert bargaining rights once it learned of the purchase of the Niagara Falls plant, St. Lawrence’s muted response suggests that it viewed the circumstances as different from previous dealings with CLAC in respect of Caledonia and Thorold. (CLAC too responded to the sale in a different manner than it had to business expansions in the past: it sought to sign the Niagara Falls employees to union membership, although it denied that its purpose was to facilitate an application for certification). Had there been a clear intention by both parties to the CLAC collective agreement applicable to Beamsville to treat the geographic scope clause in the manner asserted by CLAC, one would have expected a less ambivalent response from St. Lawrence.
For all of these reasons, I find that CLAC has failed to demonstrate that it has bargaining rights in respect of employees at the Niagara Falls plant. Thus, the Teamsters application for certification is timely.
There remain issues in dispute in the application for certification between the Teamsters and the responding party. The Board directs the Manager, Field Services to assign a Labour Relations Officer to consult with the Teamsters and the responding party concerning these outstanding issues, and report to the Board as to whether it is necessary to schedule further hearing dates. The Labour Relations Officer is to report back to the Board within ten days of the date of this decision.
There remains unresolved CLAC’s related employer application in Board File No. 3047-99-R. CLAC is hereby directed to advise the Board and the other parties of its intentions with respect to that matter within fifteen days of the date of this decision, failing which the application will be terminated without further notice to the parties. The responding parties in Board File No. 3047-99-R are relieved under the Board’s Rules of Procedure from delivering and filing any responses until such time as the Board directs, should it be necessary to do so.
“Patrick Kelly”
for the Board