2494-99-R Service Employees’ Union, Local 268, Applicant v. Canadian Red Cross Society (Ontario Zone); Comcare Canada Ltd.; The Victorian Order of Nurses and Community Care Access Centre of the District of Thunder Bay, Responding Parties.

BEFORE: Christopher J. Albertyn, Vice-Chair.

APPEARANCES: Mark Wright, Andrea Bowker and Barbara Rankin for the applicant; Garth O’Neill and Laura Kokolinski for Community Care Access Centre of the District of Thunder Bay; Robert Edwards for Victorian Order of Nurses Thunder Bay and District Branch; Glenn P. Christie and Adrianna Ripepi for Comcare Canada Ltd.; Lisa Kelly for National Automobile, Aerospace, Transportation and General Workers Union of Canada (Caw-Canada).

DECISION OF THE BOARD; June 29, 2001

1. This decision deals with a Rule 46 request. The responding parties, other than the Canadian Red Cross Society (Ontario Zone) (“the Red Cross”), contend that the application does not make out a case for the orders sought, even if all of the facts stated in the application are assumed to be true.

2. The request concerns an application by the Service Employees’ Union, Local 268 (“the union”) filed pursuant to the provisions of sections 69 and 1(4) of the Labour Relations Act, 1995, R.S.O. 1995, c.1, as amended (“the Act”).

3. The question is, could the Board find that there has been a sale of business such as is contemplated under section 69, and would the Board exercise its discretion under section 1(4) to declare the Thunder Bay Community Care Access Centre (“the CCAC (Thunder Bay)”) to be one employer with the Red Cross and others.

4. After argument on the Rule 46 request was completed, the Board (differently constituted) in a different matter, involving the Durham Community Care Access Centre (CCAC), issued a decision (which I will refer to as “Durham 1”) granting a motion that the trade union seeking relief similar to that in this case on comparable facts had not made out a prima facie case for relief under section 69. Subsequently, also on a prima facie basis, the Board decided that it would not exercise its discretion under section 1(4) of the Act. (I refer to this decision as “Durham 2”). Those decisions are Durham Access to Care, [2000] OLRB Rep. Sept./Oct. 855 and Durham Access to Care, [2000] OLRB Rep. Nov./Dec. 1110. The parties were given an opportunity to comment on those decisions because they appear to mirror the facts and issues in this application. They have done so.

The union’s case

5. The union’s case is that there has been a sale of business from the Red Cross through the CCAC (Thunder Bay) to Comcare Canada Ltd. (“Comcare”) and the Victorian Order of Nurses (“VON”) and that the Board should make a declaration that the Red Cross, CCAC (Thunder Bay), the VON and Comcare are a single employer for the purposes of collective bargaining.

6. Briefly, the history of the union’s bargaining rights is as follows. (This history is taken from the application). The union was the bargaining agent for all employees of the Red Cross, save and except supervisors and those above the rank of supervisor, and office and clerical staff. It held bargaining rights in three bargaining units: the City of Thunder Bay Branch Service in the City of Thunder Bay (“the Thunder Bay unit”), the Towns of Geraldton, Nakina, Longlac, Jellicoe and Caramat (“the Geraldton unit”) and the Home Services Program in the District of Thunder Bay (the Townships of Dorion, Red Rock, Nipigon, Beardmore, Terrace Bay, Schreiber, Marathon and Manitouwadge) (“the Nipigon unit”). The union acquired these bargaining rights between October 1996 and July 1998.

7. The union concluded a central bargaining agreement with the Red Cross across Ontario. It covered the three bargaining units which are the basis of the union’s claims in this application. That agreement was to be effective from March 31, 1999 until March 31, 2002.

8. On May 19, 1999 the union was informed that the Red Cross would close its Thunder Bay homemaker services and its Thunder Bay District operations on August 15, 1999. When that occurred, the homemaking services which the Red Cross had delivered reverted to the CCAC (Thunder Bay). The employees in the three Red Cross bargaining units were laid off.

9. The CCAC (Thunder Bay) now has statutory authority under the Long Term Care Act to co-ordinate and assign homemaking services within Thunder Bay. It came into existence in April 1997. It is the single access point for community care in Thunder Bay. It provides its service by utilizing homemaking service organizations (which have pre-qualified to receive homemaking work), like the Red Cross, Comcare, Olsten and the VON. It calls for tenders for the assignment of homemaking work (in Requests for Proposals or RFP’s) and, on the basis of the proposals it receives, it assigns the homemaking work.

10. The CCAC (Thunder Bay) does not, itself, employ any homemaking employees. It engages the services of organizations which do. The CCAC (Thunder Bay) has overall authority and responsibility for the provision of homemaking services in Thunder Bay, but it cannot itself perform that work. It must distribute the work to other organizations on the basis of their tenders. It develops case management plans and it refers clients (members of the public in need of home care) to a service provider which is under contract to it.

11. The relationship between the CCAC’s and the homemaking service providers is thoroughly explained in the Durham 1 and 2 decisions. See, in this regard, paragraphs 5 to 20 of the Durham 1 decision.

12. When the Red Cross ceased operations in Thunder Bay and returned its homemaking work to the CCAC (Thunder Bay), it re-assigned the work to Comcare and the VON. As a result, Comcare replaced the Red Cross as the sole service provider in the areas covered by what was the union’s Geraldton and Nipigon bargaining units. Comcare and the VON were chosen jointly to provide the service which previously formed part of the union’s Thunder Bay unit.

13. The union says that almost all of the former Red Cross employees from the Geraldton and Nipigon units obtained employment with Comcare and, in virtually all cases, the individuals concerned continued to provide homemaking services to the same clients they had when employed by the Red Cross, in exactly the same fashion as they had done when the Red Cross was the service providing agency.

14. Similarly, according to the union, almost all of the former Red Cross employees obtained employment with Comcare or the VON in Thunder Bay. Many of them continued to provide exactly the same service to the same clients as they had done before as employees of the Red Cross.

15. The responding parties have a different view of the numbers of former Red Cross employees who were employed by them. They say that, in May 1999, the Red Cross had 262 homemakers. Of them, 47 were hired by the VON and 52 were hired by Comcare. As a percentage that means that about 38% of the former Red Cross employees were engaged by the VON or Comcare.

The prima facie merits of the section 69 application

16. The dismissal of a section 1(4) and a section 69 application at a prima facie level is unusual and extraordinary. That is because the applicant is assumed to have limited knowledge of the manner in which a business is disposed of or of the manner in which one enterprise may exercise control over another. The provisions of sections 1(5) and 69(13) address the likelihood that the information about a transfer of business or of the control by one firm over another will be in the possession of the responding parties: Guaranteed Insulation ’77 Limited, [1981] OLRB Rep. Oct. 1394, at 1403, ¶¶15-16. The Board generally takes the view that no proper assessment of the applicant’s case can be made until there has been full disclosure of relevant information by the responding parties and that information has been tested in a hearing.

17. The limited exception to this approach arises in a section 69 application when the applicant makes clear what has been transferred from one employer to another, as in this case, and the responding parties are able to argue that such a transfer cannot constitute a sale of business. Similarly, the exception in a section 1(4) application is that the Board may consider a prima facie challenge if it assumes that the applicant can establish the preconditions for the Board to exercise its discretion under that section and then asks itself whether, in those circumstances, it would.

18. The Board dismissed the union’s section 69 application on a prima facie basis in the Durham 1 decision. The union makes the following arguments as to why the facts in that case are to be distinguished from those here. In Durham the union acquired bargaining rights by voluntary recognition, once the CCAC’s RFP process had begun. By contrast, in Thunder Bay the union’s bargaining rights pre-dated the establishment of the CCAC (Thunder Bay). Those rights were obtained through certification, not voluntary recognition.

19. In my view, nothing turns on these differences.

20. I accept, as the union argues, that a transfer of a business can occur through a third party intermediary, like the CCAC (Thunder Bay). The important question, though, is whether what passed from the Red Cross, through the CCAC (Thunder Bay), to Comcare and VON was a business or part of a business, rather than merely the work done by employees of the business. Assuming that the CCAC (Thunder Bay) has control over the work assignment, the fact that it received the work from the Red Cross, which could no longer perform it, and gave it to other homemaking service providers does not, of itself, mean that there has been anything more than a transfer of work. For there to be the transfer of a business, or part of a business, there must be more than just the transfer of work.

21. The union says that in Durham not all of the employees were transferred from the Red Cross to the other homemaking service providers. It says the situation here is that the former homemaking providers were transferred virtually en masse.

22. The application suggests that all of the Red Cross’s employees were laid-off and they were individually engaged by Comcare or the VON. There seems to have been no organized transfer of employees from one employer to the other in the manner such as occurred in Chaterways Transportation Limited, [1994] OLRB Rep. Oct. 1296. (See also Town of Ajax v. C.A.W 222 (1998), 1998 CanLII 7179 (ON CA), 166 D.L.R. (4th) 516 (Ont. C.A.). Individual employees – I accept, on the basis of the union’s pleadings, it was virtually all of them – who had worked for the Red Cross in one of the union’s bargaining units, became employed by Comcare or the VON. But, in my view, that does not constitute the “transfer” of the employees concerned, such as occurred in Chaterways Transportation Limited, or in Thunder Bay Ambulance Services Inc., [1978] OLRB Rep. May 467. In both those cases the acquisition of a group of employees was the result of arrangements between the former and the successor employer or by operation of statute. Here the engagement of the former Red Cross employees was at their individual instance. They acquired employment with Comcare and the VON themselves when they were laid-off; their “transfer” was not the result of an acquisition by the “receiving” employer.

23. The “individual” rather than “en masse”’, employment of the former Red Cross employees does not mean that Charterways Transportation Limited has no application to this case. That depends upon the following. In certain limited and specific circumstances, as in Charterways Transportation Limited, a business may consist entirely of the accumulated skills of a group of employees. When that group moves, intact, or are recruited or acquired in such a way so that they may provide the same service which they provided previously, that may be a sale of a business: Town of Ajax, above, at 523, ¶25. In circumstances when the assembled and accumulated human capital is critical to the operation of the new business, then receipt of the group of employees in whom that capital resides may constitute the acquisition of a business. A professional sports team is an obvious example.

24. There is a paucity of material in the application, understandably, as regards the business operations of Comcare and the VON when they acquired the work which was previously assigned to the Red Cross. The impact of the additional work on their businesses is also not clear. It is therefore not possible, based only upon the allegations in the application, to conclude that only work, and not a part of a business, was acquired by the engagement of the former Red Cross employees. See, in this regard, Metropolitan Parking Inc., [1979] OLRB Rep. Dec. 1193, at 1203, ¶¶27-28. I cannot therefore dismiss the union’s section 69 application on a prima facie basis.

25. Having come to this conclusion, though, I have no wish that the Board’s (and the parties’) resources be expended on a project which is not likely to succeed. If the responding parties’ allegations, which have not thus far been addressed or admitted by the union, that Comcare and the VON had existing homemaking businesses which had the capacity to assume the additional work assigned to them by the CCAC (Thunder Bay) after the demise of the Red Cross, and that their engagement of the former Red Cross employees was a matter of convenience rather than necessity, then the union will not likely succeed to establish that there was a sale of business. As the responding parties argue, the scope of application of the principles enunciated in Charterways and the Town of Ajax is extremely limited.

26. In particular, if the VON can establish that it acquired 47 employees who were formerly with the Red Cross out of its complement of 79 homemakers, and if the other aspects of its business (as described in paragraphs 22 to 28 of Schedule “A” to its response) are proven, then there will likely not have been a sale of business from the Red Cross to the VON.

27. Similarly, in Schedule “A” to Comcare’s response, it alleges that its homemaking work increased by about 48% as a result of the acquisition of the work which was formerly done by the Red Cross. It recruited employees to perform this work through advertisements in local newspapers, through flyers to households and through Human Resources Development Canada. Comcare had 123 Home Support Workers in March 1999, 146 in June 1999 and 237 in October 1999. Assuming the increase in the number of employees was directly and only the consequence of the acquisition from the CCAC (Thunder Bay) of the work formerly done by the Red Cross, only 52 former Red Cross employees were hired by Comcare to perform it. Assuming this to be true and provable, and that no assets, tools, equipment or property interests were transferred (as Comcare alleges at paragraph 34 of Schedule “A”) then there is scant prospect of the Board declaring what occurred to have been a sale of business.

28. In light of these comments the union should consider whether it wishes to pursue this matter. Should it choose to do so, it should advise the Registrar within 30 days of this decision accordingly and the matter will be scheduled for hearing.

29. If the union fails to advise the Registrar of its intention, as directed, it will be deemed to have withdrawn this application.

The prima facie merits of the section 1(4) application

30. The union takes issue with the Durham 2 decision because, in the union’s submission, the Board read out the provisions of section 1(5) of the Act. Section 1(5) reads:

(5)....... Where, in an application made pursuant to subsection (4), it is alleged that more than one corporation, individual, firm, syndicate or association or any combination thereof are or were under common control or direction, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.

31. The union says the Board cannot decide that it would not exercise its discretion to make a related employer declaration under section 1(4) without the requirement in section 1(5) being fulfilled that “the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation”.

32. In my view, the Board’s approach in the Durham 2 decision was not erroneous. The evidence contemplated under section 1(5) is evidence which goes to establishing the allegation that two or more entities are under common control or direction. That allegation was assumed by the Board when it exercised its discretion not to make a related employer declaration under section 1(4). In Durham 2 the Board assumed the union could establish the necessary factual basis for its consideration of whether to make a declaration. The question the Board faced was whether it would make a declaration of relatedness such that the homemaking service providers were declared to be one employer with the Durham CCAC. Similarly here, I assume that the union can establish (as it alleges) that the control and direction exercised by the CCAC (Thunder Bay) over Comcare and VON is so substantial and significant that they can both be regarded as being under the common control or direction of the CCAC (Thunder Bay). There is therefore no need to consider the provisions of section 1(5) of the Act when dealing with the matter in this way. The same question applies here. Assuming common control or direction, should the Board exercise its discretion to declare the CCAC (Thunder Bay) to be related employers or one employer with the Red Cross, Comcare and the VON for the purposes of collective bargaining?

33. Assuming the correctness of the union’s allegations of control over the homemaking service providers, the power exercised by the CCAC (Thunder Bay) involves the following elements: the CCAC (Thunder Bay) decides how much work each provider receives; it decides how the work is to be done; and it determines what rate will be paid for the work.

34. Properly understood, though, the CCAC (Thunder Bay) has regulatory, rather than business, control over the service providers. It regulates rather than directs how the service is provided. It ensures that the service providers perform their homemaking tasks on its behalf in the manner it wishes to have that done. Its role is akin to that of a regulatory professional body over a profession, rather than that of a head office over its subsidiaries. The CCAC (Thunder Bay) sets the parameters for the operations of the service providers, stipulating the standards of service to which they must comply. The CCAC (Thunder Bay) regulates the quality of the service provided by the likes of Comcare and the VON, not the manner in which they operate their businesses to meet those standards.

35. The principles described in Ontario Legal Aid Plan v. Ontario Public Service Employees Union, [1991] 6 O.R. (3d) 482 (C.A.) are germane to this case. That case involved a judicial review of a decision of the Board declaring legal aid clinics established under the Legal Aid Act as being one employer with the Law Society pursuant to the provisions of section 1(4) of the Act. The court set aside the Board’s decision, finding it patently unreasonable. The court said the Board should look not only at whether there is common control and direction between two related employers, but why that is so. The court found the legal aid clinics, although funded by the Law Society, were not performing tasks that were ever done or intended to be done by employees of the Law Society. The court said the Board should have interpreted not only its own legislation (the Act), but also the provisions of the Legal Aid Act. The Board erred in extending the powers of the Law Society beyond the Society’s statutory mandate by imposing bargaining obligations which it was not empowered to undertake. The court said (at 488h) the Board must look at the legal relationship which creates a dependency, not just the fact of the dependency of one entity on another. In the court’s words (489c), “it is a mistake to look at the factual situation through labour relations eyes only”. The Board must have regard to the statutory context in which the control of one body over another is exercised.

36. The court found that the control which the Law Society exercised over the clinics was contemplated by the scheme of the legal aid plan contained in the Legal Aid Act. In the court’s view, that de facto control should not have been conclusive for the Board. The Board should also have considered why that control existed. In that case the control arose as a statutory obligation of the Law Society. Similarly, in this case, the homemaking service providers, although funded and substantially directed by CCAC (Thunder Bay), are not performing tasks that were ever done or intended to be done by employees of the CCAC (Thunder Bay). The relationship between the CCAC (Thunder Bay) and the homemaking service providers is prescribed by the Long Term Care Act. The CCAC (Thunder Bay)’s involvement with the providers is a statutory obligation and its use of their services arises because it may not, by law, perform homemaking work itself. In these circumstances, just as in the Ontario Legal Aid Plan case, it would be erroneous to interpret the authorized intrusion of the CCAC (Thunder Bay) into the affairs of the service providers as constituting an employer-employee relationship.

37. The CCAC (Thunder Bay) is a statutory body which has no organizational connection with the various service providers. Under the Long Term Care Act it may not usurp their work. It must achieve its purpose by using the service providers whom it selects in an impartial process. Each tenders to do the work for the price it estimates it can afford. There is no suggestion by the union that the corporate structures of each of the service providers, particularly Comcare and VON are linked together or with the CCAC (Thunder Bay). Comcare and VON are separate corporate entities at arm’s length from the CCAC (Thunder Bay). Comcare and VON are direct competitors for work. They have no organizational connection at all. They are linked through the CCAC (Thunder Bay), though by competition and rivalry.

38. The criteria referred to in Walters Lithographic Company Limited, [1971] OLRB Rep. July 406 for the Board to conclude that a section 1(4) declaration might be warranted are these:

The indicia or criteria which the Board considers relevant in making a determination as to whether the activities or businesses of one or more corporations, individuals, firms, syndicates or associations, or any combination thereof are carried on under common direction and control and therefore may be treated as one employer are – (1) common ownership or financial control, (2) common management, (3) interrelationship of operations, (4) representation to the public as a single integrated enterprise, and (5) centralized control of labour relations. No single criterion is likely to decide the issue. Rather, as has been stated, the Board’s determination undoubtedly will be based on an appraisal of all of them in the light of the particular facts before it. It hardly need be said that in applying the above criteria, the greater the degree of functional coherence and interdependence which the Board finds among the associated or related activities and businesses the more probable it is that the Board will conclude that the entities carrying on these activities should be treated as one employer. We would mention here also that the indicia or criteria themselves obviously overlap. For that reason, in applying them to the facts of the instant case we have not attempted to deal with each criterion on an individual basis.

39. What is clear from the union’s allegations in this case is that, while there appears to be an interrelationship of functions between the CCAC (Thunder Bay) and the service providers, the other conditions do not obviously apply. The various entities are not represented to the public as a single integrated enterprise, there is no direct financial control or common ownership. They all operate from different premises. There is also no suggestion of confusion among employees of the various entities as to whom they work for. There is no labour relations or human resources connection between them.

40. The union does not suggest any organizational connection between the Red Cross, Comcare and the VON. They are different corporate entities. There is no interrelationship in their operations. They have separate management. They present to the public as separate entities and have done so for a considerable period. (The VON, for example, was incorporated in 1899 to provide nursing services in Canada). There is no inter-change of employees. There are no common beneficiaries from their operations. Some are non-profit and some are for-profit organizations. The union makes no allegation of relatedness between them, other than through the CCAC (Thunder Bay).

41. Nevertheless, for the purposes of the inquiry to decide whether a related employer declaration could be made under section 1(4), I will assume that the Red Cross, the CCAC (Thunder Bay), VON and Comcare are broadly under the common control and direction of the CCAC (Thunder Bay) and that they are engaged in associated or related business activities.

42. In my opinion, and for reasons similar to those expressed by the Board in the Durham 2 decision, the Board should not declare the CCAC (Thunder Bay) to be one employer with the service providers with which it contracts to perform homemaking work on its behalf. I can see the economic value for employees of the various service providers being able, through their union(s), to bargain directly with the CCAC (Thunder Bay) rather than with their immediate employers, so as to remove competition over wage levels between the various service providers. But that is not a sufficient reason to make the declaration. A declaration will be made, as stated in Etobicoke Public Library Board, [1989] OLRB Rep. Sept. 935, at ¶88:

(a) to preserve or protect from artificial erosion the bargaining rights of the union;

(b) to create or preserve viable bargaining structures; and

(c) to ensure direct dealings between a bargaining agent and the entity with real economic power over the employees.

43. Counsel for the union emphasizes the last of these considerations. He argues that the CCAC (Thunder Bay) holds the real economic power over the employees of the Red Cross, Comcare and the VON. The CCAC (Thunder Bay) sets the conditions under which those entities operate in the homemaking field. Therefore, in the last instance, it is the CCAC (Thunder Bay) which determines the terms and conditions of employment of those who do homemaking work.

44. An appropriate comparison for the situation of the CCAC (Thunder Bay), the Red Cross, Comcare and VON is in the automobile industry in the relationship between a major automobile assembly company and the contractors who provide it with goods or services. The various contractors are rivals for work from the auto manufacturer. All of their work comes from the manufacturer. In that sense they are wholly dependent upon that source for their economic livelihood and in that sense they are under the common economic control and direction of the manufacturer. What they can charge for their products is substantially determined by the manufacturer. As between each other, they are fiercely competitive. The auto manufacturer gives detailed specifications as to what work it wants, or what components it wants produced, and it stipulates the price it will pay. There is a competitive bidding process. The work of the contractors is significantly controlled. It may even be consistently monitored by the auto manufacturer. Ultimately, though, the organizational method chosen by each contractor to make a success of its business is within its own control. Much is stipulated and regulated by the auto manufacturer, but the contractors retain an essential control over the operation of their businesses, which is separate from the manufacturer.

45. The same circumstances apply here except that the service provided is not the manufacture of parts, but homemaking services for individuals. That requires significant quality assurance. It explains the CCAC (Thunder Bay)’s extensive regulation of the homemaking service which each of the subcontractors must provide.

46. What the union is asking for, following this analogy, is for bargaining rights held in one contractor’s shop to be extended to all of the other contractors, through the auto manufacturer, because the work of the first contractor has been transferred by the auto manufacturer to the other contractors.

47. To return to the facts of this case: the relationship between the CCAC (Thunder Bay) and the service providers is that between a contractor and subcontractors. As a consequence, the relief the union is seeking will not preserve or protect its bargaining rights. A section 1(4) declaration would have the effect of extending those rights. There is no artificial erosion of the union’s bargaining rights. The union’s bargaining rights were eliminated because the Red Cross ceased its operations. That is an erosion caused by market circumstances. There has not been an artificial erosion which has the effect of avoiding collective bargaining obligations. The bargaining rights have not gone elsewhere, they have simply ceased to exist by reason of the Red Cross’s inability to continue in business. As stated in Federated Building Maintenance Company Limited, [1985] OLRB Rep. Nov. 1585, at 1594, ¶33:

… while many subcontracting arrangements might arguably fall within a literal reading of the language of section 1(4), we do not think the statute was ever intended to collapse the vast majority of bona fide subcontracting relationships. Section 1(4) is clearly discretionary, and should be applied only where there is clear evidence of the mischief it was intended to avoid.

48. I can see that workers would likely be better off in a more centralized bargaining structure, with the union negotiating wage rates with the CCAC (Thunder Bay), pertaining to all of the service providers who obtain work from the CCAC (Thunder Bay). I recognize the union’s concern that the effect of the CCAC (Thunder Bay)’s bidding process might be to create price competition between the different bidders whose primary variable commodity is the cost of their labour. That suggests the operators might feel compelled to push down the wages of their employees, as a means of becoming more competitive than their rivals. I can see that the union’s endeavour to put wages out of competition is a desirable political objective for it. There would likely be greater stability in a large, over-arching bargaining structure which pertains to all homemaking service providers than there is in separate bargaining units for each service provider. An over-arching structure would seem likely to accord better with the “underlying economic and industrial relations realities” (J.H. Normick Inc., [1979] OLRB Rep. Dec. 1176, at 1184, ¶21). But the union cannot achieve the objective of a centralized bargaining structure through the aegis of the Board and its discretion under section 1(4) of the Act. That section is intended to address a mischief, described in Toronto (City) [2000] O.L.R.D. No. 1687, June 15, 2000. Its purpose is “to ensure there will be no erosion of bargaining rights caused by a unionized entity spinning off a new company, moving work or opportunities for growth from the old company, and operating the new company without regard to the collective agreement obligations of the old.” The section is not there to facilitate the bargaining structure which would best advantage workers in their endeavours to achieve better earnings, working conditions and benefits. Rather, the section is there to address a specific and limited mischief, which does not appear to exist in this case.

49. There is an additional reason why the Board would not exercise its discretion to make a section 1(4) declaration here. At the time the union made its section 69/1(4) application, it held bargaining rights for some of the responding parties. It held bargaining rights in the CCAC (Thunder Bay) for its office and clerical employees. (The union has now been displaced by the CAW for that unit). Those employees are involved in case management and they refer cases to the service providers. Furthermore, the union held bargaining rights for a unit of RPN’s and an office & clerical unit of the VON. (The CAW displaced the union in these units in March 2000). The union was certified for VON’s office unit in 1992 and for its RPN unit in 1994. Those bargaining rights co-existed with the union’s bargaining rights in the Red Cross. At no time during that co-existence did the union suggest that the Red Cross was a related employer with the VON. This application was brought only once the Red Cross ceased its business. This means that the union engaged the CCAC (Thunder Bay) and the VON in collective bargaining for separate collective agreements with them without suggesting any relationship between them, such as is contemplated in section 1(4). The union maintained separate labour relations arrangements with the different entities it now seeks to have declared as related: Radio Shack, [1979] OLRB Rep. July 689, at 692, ¶10. That bargaining history would appear to count against the exercise of the Board’s discretion to make a declaration under section 1(4).

50. The union answers this consideration by pointing out that the CCAC (Thunder Bay) assumed responsibility for the distribution of homemaking services with its first RFP in April 1999. It was then that the union became familiar with the new structure of service distribution. That was, in the union’s submission, the triggering event for this application. Furthermore, the VON did not provide a homemaking service prior to 1999. It commenced such work only in response to the CCAC (Thunder Bay)’s RFP in April 1999.

51. I accept the union’s explanation of the change of circumstances in April 1999, but it does not detract from the fact that the union has held separate bargaining rights in the Red Cross, the CCAC (Thunder Bay) and the VON and those have functioned successfully without any suggestion of interrelatedness. This observation enhances the view I have taken that the loss of the union’s bargaining rights in the Red Cross is the consequence of the Red Cross’s decision to cease operating, rather than from the erosion of bargaining rights caused by the spawning of new organizations.

52. I conclude that this is not a case in which a declaration under section 1(4) would be made, even if all of the allegations in the application are true. The union’s section 1(4) application is therefore dismissed.

53. As stated above, the union may pursue its section 69 application on notice to the Registrar.

“Christopher J. Albertyn”

for the Board