Reasons for decision
Canadian Union of Postal Workers,
applicant,
and
Adecco Employment Services Limited,
respondent,
and
Canada Post Corporation,
employer.
Board File: 28291-C
Neutral Citation: 2010 CIRB 556
December 10, 2010
A panel of the Canada Industrial Relations Board (the Board), composed of Ms. Elizabeth MacPherson, Chairperson, and Ms. Louise Fecteau and Mr. William G. McMurray, Vice-Chairpersons, considered the above-noted application.
Section 16.1 of the Canada Labour Code (Part I–Industrial Relations) (the Code) provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed all of the material on file, the Board is satisfied that the documentation before it is sufficient for it to decide the matter without an oral hearing.
Counsel of Record
Mr. James Robbins, for the Canadian Union of Postal Workers;
Mr. John-Paul Alexandrowicz, for Adecco Employment Services Limited;
Mr. Roy. C. Filion, Q.C., for Canada Post Corporation.
These reasons for decision were written by Mr. William G. McMurray, Vice-Chairperson.
I–Nature of the Application
[1] On July 27, 2010, the Canadian Union of Postal Workers (CUPW or the union) filed an application pursuant to section 18 of the Code asking the Board to exercise its discretion to review and to rescind the decision it issued on July 7, 2010 (see Adecco Employment Services Limited, 2010 CIRB 528 (RD 528)). In RD 528, the Board dismissed an application filed by the union pursuant to section 35 of the Code asking the Board to issue a single employer declaration or, in the alternative, to declare that Canada Post Corporation (CPC or the employer) is the true employer of certain employees of Adecco Employment Services Limited (Adecco) working at named postal facilities.
[2] The union submits that the decision reached by the Board in RD 528 is wrong and that the decision should be reconsidered pursuant to section 18 for the following reasons:
- The Board failed to respect a principle of natural justice by failing to address the issue of the true employer of the front line supervisors in the Customs Postal Import Program (CPIP) secondary processing areas, and by failing to consider evidence on that issue;
- The Board erred in law and policy by imposing a requirement that entities associated or related by contract must also be similar businesses to be associated or related for the purpose of section 35;
- The Board erred in law and policy by basing its determinations on contractual form rather than substantial fact.
II–The Scope of Reconsideration
[3] Board decisions are final when rendered and are protected by a privative clause pursuant to section 22 of the Code. Under section 18 of the Code, the Board has the discretion to review, rescind, amend, alter or vary any of its decisions, including for the grounds set out in section 44 of the Canada Industrial Relations Board Regulations, 2001. Under section 44, the circumstances under which the Board will reconsider a decision include the existence of facts that were not brought to the attention of the Board, that, had they been known at the time of the hearing, would likely have caused the Board to decide differently; errors of law or policy that cast serious doubt on the interpretation of the Code by the Board; and a failure by the Board to respect a principle of natural justice.
[4] Reconsideration powers are limited and are not intended to serve as a means for a party to appeal a decision, to reargue the same issues presented before another panel of the Board, or to contest the facts and issues already determined by the Board. It is not the role of a reconsideration panel to substitute its own appreciation of the facts for that of the panel that was seized of the matter being reconsidered (see Williams v. Teamsters Local Union 938, 2005 FCA 302). An applicant must establish that serious reasons or even exceptional circumstances exist that would justify the reconsideration of a decision (see Canadian Imperial Bank of Commerce, 2008 CIRB 403).
III–The Decision Under Review
[5] It is useful to review the various decisions reached by the Board in RD 528 in the process of coming to its final decision to dismiss the union’s single employer declaration application. It appears from a review of RD 528 that all parties agreed upon the five criteria that the Board is required to consider in such an application and, moreover, that all parties agreed that only two of those criteria were in dispute. Paragraph 82 of RD 528 states:
[82] Based upon the above, the Board is left with two matters to determine. First, it is necessary to decide whether CPC and Adecco are associated or related activities and second, whether they exercise common control or direction over the businesses.
[6] In addition, the Board reminded the parties that, ultimately, apart from the five criteria, there is a discretionary element in any decision involving a single employer determination. At paragraph 78 of RD 528, the Board stated:
[78] As reflected in the Board’s jurisprudence, a single employer determination is generally a two-step process in which the Board first decides whether the above criteria are objectively satisfied. If the criteria are met, the Board must next decide if it should exercise its discretion and grant the declaration. The discretionary authority rests upon the principle that there must be a valid labour relations purpose for issuing the declaration.
[7] With regard to the criteria in dispute, the Board first found that the two businesses were not associated nor related. These findings are set out at paragraph 87 of RD 528:
[87] As for the contention that the contractual arrangements between CPC and Adecco means that the enterprises are associated or related activities, the Board is not persuaded by CUPW’s submissions. The Board is of the view that despite the existence of the subcontractual arrangement between CPC and Adecco, the evidence does not support the union’s position that the businesses are associated or related. The business of Adecco as a human resources provider is neither comparable nor similar to the business of CPC as Canada’s national postal service. There is no common ownership or management as between CPC and Adecco and no indication that they are in any manner vertically integrated. The Board is also satisfied that the work of the Adecco employees in their performance of the CBSA duties is distinct from the work performed by the CUPW bargaining unit members. Adecco deals with parcels only when it falls under the direct care and control of CBSA and is out of the general mail stream until such time as CBSA determines otherwise. The presence of the Secondary Inspection Area is not a mere artifice, but rather serves as a clear delineation between the nature of the work performed by the Adecco employees and that performed by members of the CUPW bargaining unit. It is also significant to note that this work, despite CUPW’s assertions to the contrary, has never been performed by CUPW members and prior to 1992 was carried out by customs officers.
[8] Second, it found that the prerequisite of common control or direction was not satisfied. Paragraphs 100 and 104 are particularly relevant in this regard:
[100] The OC Transpo and Air Canada decisions are instructive but not determinative of the matter presently under review. Each case must be considered on its own merits based upon the applicable facts and circumstances. The contract between CPC and Adecco, similar to the subcontracts in the OC Transpo and Air Canada cases is comprehensive but does not, in the opinion of the Board, constitute common management, control or direction. CPC, in accordance with its contract with CBSA, has an obvious and real interest in ensuring that such matters as hiring, training, evaluations and discipline are conducted in a manner that is consistent with its obligations and commitments to CBSA. Even though certain CPC managers may periodically take it upon themselves to exceed their oversight responsibilities (as will be dealt with in greater detail below), the Board is satisfied that CPC’s oversight did not negate nor, in any way, reduce the role and responsibilities of Adecco. The evidence as presented did not establish that CPC has a determinative role in the hiring, training evaluation or disciplining of the Adecco employees.
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[104] The Board is satisfied that Mr. French’s actions were motivated by his desire to ensure that there was absolute and complete compliance by Adecco with the terms and provisions of the subcontract. He took his responsibilities seriously and, at times, that led him to acquire a level of interest in Adecco’s operation that exceeded his actual duties and responsibilities, but such, in the opinion of the Board, did not place CPC in a position of common control and direction.
[9] On the final question of whether the Board would or would not be inclined to exercise its discretion in favour of a single employer declaration, the Board held that “even if all the criteria for a single employer declaration had been satisfied, it is questionable as to whether the Board would have granted the declaration” (see paragraph 105). The Board expanded on its thinking regarding the discretionary element of any single employer declaration at paragraph 106 of RD 528:
[106] Is this a situation in which the union’s bargaining rights are under assault or being undermined or eroded (Air Canada et al. (1989), 79 di 98; 7 CLRBR (2d) 252; and 90 CLLC 16,008 (CLRB no. 771); Télébec ltée et al., 2004 CIRB 300)? Is there a need for the Board to preserve the union’s bargaining relationship (Air Canada et al., supra)? Has CPC attempted to thwart the provisions of its collective agreements with CUPW (Muir’s Cartage Ltd. and Canada Post Corporation (1992), 89 di 12; 17 CLRBR (2d) 182; and 92 CLLC 16,060 (CLRB no. 955))? Would the parties’ labour relations be enhanced by issuing a single employer declaration (Autocar Royal (9011-4216 Québec Inc.), 1999 CIRB 42)? Based upon the facts as presented, the Board, in all likelihood, would be inclined to answer the foregoing questions in the negative. The work in question has never been performed by members of the CUPW bargaining unit and there is no indication that CPC entered into the arrangement with Adminserv and later Adecco for the purpose of thwarting or avoiding CUPW’s rights or weaken its bargaining position. There was, in fact, no indication that the union’s bargaining position has been weakened or eroded by the present arrangements.
[10] In sum, the Board found in RD 528 that CPC and Adecco were not associated nor related and that there was no common control or direction. In any event, the Board said that even if the objective criteria had been satisfied, it was questionable whether it would have granted a single employer declaration.
IV–Analysis
A–Alleged Breach of Natural Justice
[11] The union alleges that the Board failed to respect a principle of natural justice by failing to address the issue of the true employer of the front line supervisors in the CPIP secondary processing areas and by failing to consider evidence on that issue. The union states:
6. The Panel completely failed to deal with the identity of the employer of front line supervisors - the “site leads and on-site supervisors”. This is a key issue with respect to both the question of whether Adecco and CPC are a single employer and whether CPC is the true employer of employees in the CPIP secondary processing operations.
...
18. In the light of these well established tests, if the Panel found that the individuals who exercised day-to-day control over the workforce in the CPIP secondary operations were themselves de facto CPC employees it could not reasonably have to come to the conclusions it did regarding issues of joint management, common control, and the identity of the true employer of that workforce. Those conclusions rested on the premise that front line supervisors were employed by Adecco, not CPC.
[12] The Board can find no merit in the union’s argument on this point. The Board reviewed and summarized the union’s arguments concerning, among others, on-site supervisors, at paragraph 32 of RD 528. The Board determined those arguments at paragraph 112 of RD 528, which refers specifically, among other things, to site-leads and supervisors. The Board found that it is Adecco, through its site-leads and supervisors, that manages the day-to-day work. While the Board may have been succinct in its consideration of this issue, a review of paragraphs 32 and 112 of RD 528 demonstrates that, contrary to the union’s allegation, the Board did address the issue of the employer of the front-line supervisors and did consider the evidence on that issue. Accordingly, the Board dismisses the allegation of a breach of natural justice with respect to this issue.
B–Alleged Errors of Law or Policy
1–Similar Businesses
[13] The union alleges that the Board erred in law and policy by imposing a requirement that entities associated or related by contract must also be similar businesses to be associated or related for the purpose of section 35. The union argues that:
20. The Panel’s analysis of whether Adecco and CPC were associated or related departs from established jurisprudence on relation through contract and constitutes a policy shift on the application of s. 35 in contractual relationships.
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27. By imposing the novel requirement that businesses associated or related by contract must also be similar, not only with respect to the work performed under the contract but in terms of the overall structures and purposes of the business, the Panel has significantly narrowed if not eliminated the application of s. 35 to contractually related businesses. This has significant policy implications particularly in the area of protecting the rights of employees and their bargaining agents where workers are "leased" or otherwise supplied by staffing agencies.
[14] The Board is of the view that, based on a fair reading of the relevant paragraphs of RD 528, this argument may also be dismissed. The gist of the union’s argument is that the Board, through its reasons in RD 528, imposed a new requirement in a single employer application that the two businesses must be engaged in similar businesses and, in so doing, erred in law or policy. In fact, the Board’s findings regarding the question of associated or related activities are set out at paragraphs 83 through 87 of RD 528. At paragraph 83, the Board cites and relies upon The Canadian Press et al. (1976), 13 di 39; [1976] 1 Can LRBR 354; and 76 CLLC 16,013 (CLRB no. 60) and lists a number of factors identified therein that ought to be considered when addressing the question of the degree of inter-relationship of the operation of two businesses. “[W]hether the businesses provide similar services and products” is one of the factors identified; it is, however, clearly identified as only one of several factors to be considered (see paragraph 83). The Board’s findings on this point are set out at paragraph 87. Despite the union’s contention, the reconsideration panel does not interpret paragraph 87 as imposing a new requirement that entities associated or related by contract must also be similar businesses. While the Board observed that Adecco’s business as a human resource provider is not comparable to CPC’s business as a postal service, it was the absence of common ownership, management or integration that persuaded the Board that these enterprises were not a common employer. The Board therefore finds no error of law and no error of policy. To the extent that the Board commented on the difference in the business activities of the two enterprises, the Board also finds no error of law or policy that would cast serious doubt upon the interpretation of the Code.
2–Form versus Substance
[15] The union also alleges that the Board erred in law and policy by basing its determinations on contractual form rather than substantial fact. The union argues:
29. The Panel departed from the established approach of labour boards including the CIRB of looking at the substantial reality of employment relationships and instead based its determination on the contractual form of the relationship.
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44. The Panel’s departure in this case from the principle of considering substance rather than form of words constitutes a significant policy shift for the Board. Where previously the Board has been concerned with labour relations realities and piercing corporate or contractual veils, now the Panel has indicated that employers may to avoid their obligations under the Code, and simultaneously extinguish the rights of employees and unions, simply by their choice of words.
[16] The debate over form and content at the hearing was evidently lengthy. The union’s allegation that the Board preferred form over substance appears to centre primarily over its treatment of the evidence regarding the role of the CPC manager responsible for CPIP at the local and the national levels. The Board observed: “The role and duties of Mr. French came in for particular scrutiny and his examination-in-chief and cross-examination were lengthy and extensive” (see paragraph 23). At paragraph 103, the Board acknowledged that “the union, in large measure, relies upon the words and actions of Mr. French in support of its contention that CPC exercised common control and direction with Adecco over the subject employees.” The Board further found and acknowledged, on more than one occasion, that certain managers, including Mr. French, may have periodically taken it upon themselves to exceed their oversight responsibilities under the relevant contract.
[17] Ultimately, however, after a thorough analysis of all of the evidence, including the evidence related to Mr. French, the Board rejected the union’s contention of common control and direction. As noted above, the Board’s findings on the subject of alleged common control and direction are set out primarily at paragraphs 100 and 104 of RD 528, reproduced above. Contrary to the union’s arguments in support of its application for reconsideration, the Board’s findings rejecting the contention of common control and direction are not formulaic and are not circular. The Board in RD 528 did not, in the reconsideration panel’s opinion, place contractual form above the substantial reality of the relationship between the two subject employers. Accordingly, the Board can find no error of law or policy in the original panel’s finding that the oversight of certain CPC managers did not place CPC and Adecco in a position of common control and direction.
V–Decision
[18] For all of the above reasons, the Board finds that the applicant union has not demonstrated that RD 528 is vitiated by a breach of the principles of natural justice or by any errors of law or policy that would cast serious doubt on the interpretation of the Code by the Board. Accordingly, the Board will not exercise its discretion to review or rescind the decision in RD 528.
[19] The application for reconsideration is therefore dismissed.
[20] This is a unanimous decision of the Board.