[1981] OLRB Rep. June 796
2529-80-R Lake Ontario District Council, United Brotherhood of Carpenter5 and Joiners of America, Applicant, v. United Shelters Ltd., c.o.b. as Lisgar Construction Co., Known Construction Company Limited and 281981 Ontario Limited, c.o.b. as Sola Developments Co., Respondent.
BEFORE: R D. Howe, Vice-Chairman, and Board Members E. C. Went and C. A. Ballentine.
APPEARANCES: J. James Nyman, Quintin Begg and Michael Lloyd for the applicant; R. M. McLean for the respondent United Shelters Ltd., D. A. Peroff for the respondent Known Construction Company Limited, and Gino B. Bifolchi for the respondent 281981 Ontario Limited.
DECISION OF THE BOARD; June 22, 1981
This is an application under section 1(4) of The Labour Relations Act in which the applicant seeks a declaration that associated or related activities or businesses are carried on under common direction or control by the respondents, and a declaration that the respondents are bound by the collective agreement between the Carpenters' Employer Bargaining Agency and the Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America. The applicant has alleged in the alternative that a sale of business has taken place within the meaning of section 55 of the Act. However, during argument counsel for the applicant stated that he did not intend to make any submissions with respect to that alternative allegation since there was no evidence before the Board of any such transaction.
Pat Bifolchi ("Pat") came to Canada from Italy in 1949 and was employed as a carpenter for several years. In 1955 he embarked upon his first business venture by forming a partnership with an older gentleman to carry on business as Lisgar Construction, which "did mainly carpentry work". When his partner retired in 1958, Pat formed a new partnership under the same name with his brother, Gino Bifolchi ("Gino"), a cement finisher. With Gino's assistance, the business expanded beyond carpentry work into "the concrete business". Pat managed and promoted the business while Gino went to the job sites and worked as a cement finisher. After approximately seven months, the partnership dissolved "at the end of 1958 or the beginning of 1959" because Gino was dissatisfied with his share of the profits, because the brothers had irreconcilable differences of opinion concerning taking on new work, and because "Gino couldn't help [Pat] with carpentry work and [Pat] couldn't help him (Gino) with cement work". The business continued under Pat's direction with contracts for construction work in Metropolitan Toronto and other parts of Ontario.
On July 4, 1960, Pat signed on behalf of Lisgar Construction Company a "Working Agreement" with The Building and Construction Trades Council of Toronto and Vicinity (the "Council") by which the Company recognized the Council and its affiliated unions as the collective bargaining agent for all its employees and agreed to be bound by the contracts existing between each of the unions affiliated with the Council and the Toronto Builders' Exchange. The company subsequently became a member of the General Contractors Section of the Toronto Construction Association.
In 1961 Pat caused a company to be incorporated under the name United Shelters Limited, which carried on business as Lisgar Construction Company. That company (hereinafter referred to as "Lisgar") operated as a general contractor in the industrial, commercial and institutional ("ICI") sector of the construction industry. Lisgar's president and sole shareholder is Pat, who is also one of its two directors. The other director is Pat's son, Gino B. Bifolchi ("Gino B.") who has authority to sign cheques on behalf of the company and provides a variety of services to the company as detailed below. When Lisgar was originally incorporated, its directors included Gino and his wife (Renata).
After the partnership between Pat and Gino dissolved, the latter was employed by various other contractors and "worked on a few little jobs [of his own] part-time" until he started his own (unincorporated) business in Bolton, Ontario, in 1965 under the name, Known Construction. In 1969, Known Construction Company Limited ("Known") was incorporated. Gino is Known's president, sole director and sole shareholder. Linda Gray, who is the secretary-treasurer of Lisgar, was also listed as an officer of Known on its last corporate return.
In the early 1970's, Pat moved Lisgar from Toronto to a building in an industrial park in Bolton. When Gino, who had been operating from an office in the basement of his home in Bolton, learned that Lisgar had surplus office space in Bolton, he caused Known to enter into a cost sharing arrangement with Lisgar with respect to office space, secretarial services and various other expenses.
In 1974, after studying at a community college construction related topics including drafting, surveying and estimating, Gino B. caused to be incorporated 281981 Ontario Limited, which carried on business at all material times as Sola Developments Company ("Sola"). Under Gino B.'s direction as president, Sola borrowed money from a bank to purchase some land and, with money derived from a mortgage co-signed by Pat, built several custom homes. Sola also provided various services including drafting, estimating and site supervision to Lisgar and Known. Sola charged for those services on the basis of an agreed upon hourly rate. Gino's son Julio was hired by Sola in 1976. He continued to be an employee and minor shareholder of Sola until he incorporated his own company, Scave Investments Limited, in 979 or 1980. With the profits derived from the sale of the custom homes and further fund.; which it borrowed from a bank, Sola purchased from "Calbion", a company owned by Gino B.'s mother and his aunt, a property in Bolton on the west side of Highway 50 on which it, as a general contractor, constructed an office building. Construction of that building commenced in the summer of 3977. Gino B. did some of the work on the building himself with the assistance of "a few friends" who helped him on weekends. Sola subcontracted the remainder of the work to Lisgar, Known and other companies. Lisgar carried out site work, excavation, backfill, grading, graveling, concrete work and carpentry work, for which it invoiced Sola a total of $61,800.00. Although the work was completed by March of l9'~8, no invoice was sent to Sola until December 29, 1978, when Lisgar requested a "progress" payment of$15,000. This invoice was paid by cheque dated March 1, 1979. Further invoices were sent on July 3, 1979 and February 1, 1980 for $30,800 and $16,000 respectively, but were not paid until October of 1980. Gino B. advised the Board that the abnormal delay in invoicing and payment of those sums resulted from the fact that his father"was giving [him] a bit of a break" because he (Gino B.) was "in a tight spot" and was "strapped". Gino B.'s uncle adopted a similar beneficent approach; the 100 hours of carpentry work and 245 hours of labourers' work completed in March of 1978 were not invoiced by Known until September of 1978. That invoice (which totalled $6,038) was paid by Sola in November of 1978.
After the building was completed, Sola leased part of it to some of Gino B.'s friends, who attempted to establish a welding business on the premises. Sola retained part of the remaining space for its own use and attempted (unsuccessfully) through advertising to lease the rest. The tenants took possession of the leased area for a few months but later vacated the premises due to the lack of success of their business venture. Meanwhile, the building in which Lisgar and Known had been operating was sold "rather unexpectedly" when an attractive offer to purchase presented itself. As a result, the respective principals of those companies decided to lease Sola'a building. Accordingly, the parties executed a "lease agreement on April 2, l97~ by which Lisgar and Known agreed to rent the entire premises, with the exception of a small area which Sola reserved for itself, for $1,500 per month. Lisgar's share of the rent was $1,000 per month (of which $300 was invoiced to "Calbion", which rented one office in the building for storage of records and files). Sola invoiced Known for the remaining $500 per month. Although Lisgar and Known took possession under the lease in April of 1978, Sola did not invoice them for any rent until November of 1980 when he invoiced each company for eight months rent. His explanation for that delay was that he was returning their favours (of n A pressing for payment for the construction services which they had respectively provided to Sola) and that he was finishing the building during that period of time.
In February of 1980, Sola sold the building to one Peter Triantafilopoulos, who agreed to ass ~me the existing lease arrangements. Prior to the sale, Lisgar agreed to revise its lease with Sola so as to increase the rent to $2,500 per month to make the building more attractive to prospective purchasers and to reflect the fact that Sola would itself become responsible fr payment of a portion of the rent upon the sale of the building. (Known's rent remained unchanged at $500 per month). After the sale, Sola paid rent of $300 a month to Lisgar for its (Sola's) area of the building.
Sola provides extensive drafting, quantity take-off, estimating, tender preparation, expediting, co-ordinating, inspection and site supervision services to Lisgar and Known. The terms of the arrangement which Sola has with Lisgar are as set forth in the following letter dated April 28, 1980 from Gino B., in his capacity as president of Sola, to Pat, in his capacity as president and general manager of Lisgar:
"As per your request and our recent discussion, we are pleased to confirm the following:
Our company would supply the service for, [sic] investigate, prepare and tender projects directed by you; co-ordinate and expedite same; negotiate and materialize final contract with owners and sub-contractors; prepare list of materials and supervise the project; for the rate of $35.00 per hour, plus transportation expenses.
We thank-you for giving this opportunity to our company and we hope to be of service to you in the near future.
We shall be advising you in advance when the above quoted price will be subject to change."
Similarly, the terms of Sola's arrangement with Known are as set forth in the following letter dated March 23, 1980, from Gino B., in his capacity as president of Sola, to Gino, in his capacity as president of Known:
"The following will confirm our verbal discussion of today.
In reference with our company, supply our service in tendering projects, negotiate with owners and sub-contractors, to finalize binding contracts, to co-ordinate and expedite the work and to supervise the work. [sic]
Our fee will be $35.00 per hour, plus transportation expenses.
We hope you find the above favourable and we can be of service to you in the near future.
We shall advise you in advance when the above quoted price will be subject to change.
We thank-you for your interest in our service."
Those documents superseded prior arrangements under which Sola had received $30 per hour for its services. (Before that, the rate had been $27 per hour). Although Gino B. testified that Sola provided similar services to other companies, the only documentation which he submitted in support of that assertion was an invoice dated March 1, 1976, in the amount of $450.00 to an animal hospital in Etobicoke for "drafting service". He also stated that other "customers" did not generally pay him as much per hour as he received from Lisgar and Known.
Pat testified that he decided to "share space" with Known in Bolton in order to minimize expenses. Accordingly, telephone expenses (including the substantial cost of a direct line to Toronto), insurance premiums, utilities and some secretarial expenses are apportioned between the companies under a rather informal cost sharing arrangement by which Lisgar invoices Known for its share of such costs from time to time. Sola also used the same telephone lines and pays a "minimal fee" for their use and for telephone answering and bookkeeping services. Lisgar, Known and Sola each use the same bank, solicitors, and accountants. They share the services of a bookkeeper. However, Known also employs part-time employees from time to time to perform bookkeeping and clerical work, and Gino B.'s fiancee provides some bookkeeping assistance to Sola. The respondents have a common address and common telephone numbers. The telephone is answered with reference to digits of the telephone number, and without reference to the names of any of the companies in the building. The caller is then referred to the appropriate individual. Lisgar and Known each employ their own secretaries. A secretary employed for Lisgar generally answers the telephone for all of the respondents, but when she is unable to do so, this task is performed by a secretary employed by Known. Lisgar, Known and Sola each have their own separate letterheads, financial records, band accounts and payrolls. Each occupies a separate partitioned area of the building, although they share a common reception area and board room. Lisgar sometimes uses Known's employees to perform work on Lisgar sites. On such occasions, the employees continue to receive their wages from Known.
Lisgar and Known each have their own separate vehicles and equipment. Lisgar's vehicles and equipment are stored in a yard near its office, while Known's vehicles and equipment (which consists of small tools and drills) are stored in a separate location approximately cne kilometer away. Lisgar sometimes provides a bulldozer and front end loader to Known (which has no heavy equipment) together with an operator (who continues to be paid by Lisgar), and subsequently bills Known for this service (at a rate of $35 per hour). Gino advised the Board that when he "rents" such equipment from Lisgar, he puts a "Known" sticker on it "most of the time" but he also stated that "it depends who's driving and whether he remembers".
Pat testified that Known does work for Lisgar "occasionally — maybe four or five times in 1980". [t was his evidence that the work which Lisgar subcontracts to Known is generally "concrete work". When asked the "dollar amount" of such work in 1980, he stated that he did not think it would be more than $50,000.
Prior to 1980, Known operated primarily as a concrete specialty contractor and did all of its work in the Metropolitan Toronto area. However, in 1980 the company, in addition to doing "about $50,000" worth of concrete work for Lisgar, began to operate as a general contractor on 1C1 jobs in other parts of the province. As a result, Known obtained general contracts for construction of a school and other buildings in locations such as White River, Marathon, Manitouwadge and South Narrows. Gino's only explanation for this striking change in Known's operations was as follows:
"If that's where the job takes you, that's where you go. Not very much work was available to me in Toronto. I wasn't hiding in Toronto very much. I felt I was wasting my time bidding in Toronto."
In response to a question by Board Member Ballentine, Gino stated: "I do my own superintendent work. I never hire a superintendent". However, that statement is contradicted by other evidence before the Board which clearly establishes that Known employed at least three superintendents during various intervals in 1980 and 1981 and, in addition, received invoices from Sola in 1980 for over $50,000 for services which included site supervision.
In 1981 Known bid on at least ten ICI projects throughout Ontario, including a sewage treatment plant in Cobourg, an area in which it had never previously worked. Its bid of $1,800,000 was the lowest bid on the project and, accordingly, it was awarded the contract, which was subsequently rescinded when "the job didn't go through". Quintin Begg, a business agent for the applicant, became aware in January of 1981 that Known had bid on that project as a result of information which he read in the Daily Commercial News concerning bidders on that project. Mr. Begg advised the Board that he is responsible for monitoring construction projects within his jurisdiction, which consists of Board Areas 9, 10, 11 and 12, to determine whether they are being completed by companies which have collective agreements with the applicant. One of the ways in which he performs that function is by monitoring the Daily Commercial News, a construction newspaper which contains information (such as preliminary planning notification and lists of bidders) concerning construction projects. Since Mr. Begg had never before encountered Known, he conducted certain inquiries and subsequently instructed the applicant's solicitors to arrange for a corporate search. The present application was then filed with the Board on February 19, 1981.
It was not disputed that Lisgar operates in the ICI sector of the construction industry, and is bound by the current province-wide collective agreement between the Carpenters' Employer Bargaining Agency and the Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America. Furthermore, it was not disputed that Lisgar is deemed by section 125(2) of the Act to have recognized the applicant, as an affiliated bargaining agent for all carpenters employed by it in the industrial, commercial and institutional sector of the construction industry in the applicant's geographic jurisdiction (i.e. Board Areas 9, 10, 11 and 12).
Section 1(4) provides:
"(4) Where in the opinion of the Board, associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions concerned, treat the corporation, individuals, firms, syndicates or associations or any combination thereof as constituting one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate."
The purpose of that legislative provision was discussed by the Board in Brant Erecting, [1980] OLRB Rep. July 945, at pages 948 and 949, as follows:
"Section 1(4) was enacted in 1971 and deals with situations where the economic activity giving rise to the employment or collective bargaining relationships regulated by the Act, is carried out by, or through more than one legal entity. Where such legal entities carry on related business activity under common control or direction, the Board is empowered to pierce the corporate veil. Section 1(4) ensures that the institutional rights of a trade union, and the contractual rights of its members, will attach to a definable commercial activity, rather than the legal vehicle(s) through which that activity is carried on legal form is not permitted to dictate or fragment a collective bargaining structure; nor will alterations in legal form undermine established bargaining rights. In this respect the purpose of section 1(4) is similar to that of section 55 which preserves the established bargaining rights and collective agreement when a 'business' is transferred from one employer to another.
Section 1(4) does not require that related business activities under common control or direction be carried on simultaneously or contemporaneously. This issue was clarified in 1975 by the addition to section 1(4) of the phrase 'whether or not simultaneously'. The amendment reflects a legislative recognition than the essential unity and identity of an economic activity (which gives rise to employment) may be preserved even though the legal vehicles through which the activity is carried on will not operate simultaneously; and, business may be effectively transferred from one corporate entity to another, without any of' indicia of a 'transfer of a business' which might trigger the application of section 55. This is especially the case in the construction industry where many of the employers will not have the permanence or investment in fixed plant and equipment characteristic of manufacturing concern. A small construction company can move from jobsite to jobsite or place to place, assembling tools, equipment and a labour force as required after it has made a successful bid. There may be no established economic organization, labour force or configuration of assets. A single principal nay have several companies which are used, more or less interchangeably, so that bidding is done and work performed through whichever company is convenient. In such circumstances there may be an effective transfer of business between related businesses without any apparent disposition of assets, inventory, trade names, goodwill, employees, etc. Similarly, where capital requirements are minimal and business relationships transitory, it is relatively easy to wind up one business, and create another one which carries on essentially the same business as before. Indeed there will often be good commercial reasons for doing so unrelated to any express desire to undermine the union's bargaining rights.
To ensure that the industrial relations status quo is preserved, the Legislature has provided that where two employers carry on related economic activities, under common control and direction, whether or hot simultaneously, they can be treated as one for the purposes of the
In Radio Shack, [1979] OLRB Rep. July 689, at pages 691 and 692, the Board stated:
'Section 1(4) of the Act is designed to deal with situations where more than one legal entity carries on related business or activities under common control and direction and where 'it may not make industrial relations sense to allow the legal form to dictate and possibly fragment :he collective bargaining structure.' There are three conditions which must be met before the section can be applied.
(a) There must be more than one corporation, firm or individual association or syndicate involved.
(b) These entities must be under common control or direction, and
(c) they must be engaged in associated or related business activities.
If these three conditions are met the Board is given a discretion under the statute to make a declaration that the entities in question constitute one employer for purposes of the Act. The Board has consistently exercised its discretion under section 1(4) to preserve rather than to extend bargaining rights. It has been reluctant, however, to make a section 1(4) declaration where the applicant union has delayed its application with the result that the declaration will impose a bargaining agent upon a group of employees who may desire a different bargaining agent or no bargaining agent at all."
The present case involves more than one corporation. Moreover, the Board is satisfied on the evidence before it that Lisgar, Known and Sola are engaged in associated or related activities or businesses. Although Known originally operated primarily as a concrete specialty contractor, since 1980 Known and Lisgar have both operated as general contractors in the ICI sector of the construction industry. Sola provides "consulting services" to general contractors in that sector and has itself acted as a general contractor in that sector in the construction of the aforementioned building in which the offices of the respondents are currently located. As noted above, the associated or related activities need not be carried on simultaneously. Furthermore, it is clear from the evidence that Sola, through its principal Gino B., has the potential to operate as a general contractor in the future since it has the necessary experience, knowledge of the industry, contacts, expertise and entrepreneurial initiative. The significant extent to which the respondents' activities are associated or related is clearly indicated by the ensuing discussion of the evidence pertaining to the issue of "common control or direction". Thus, conditions "(a)" and "(c)" as set forth in Radio Shack, supra, have been met. It remains for the Board to consider whether condition "(b)" has been met and, if so, whether this is an appropriate case for the Board to exercise its discretion to grant a declaration under section 1(4).
The Board has indicated in a number of cases that various criteria or indicia are of some assistance in determining whether the associated or related activities or businesses are carried on under common direction or control. See, for example, Donald A. Foley, [1980] OLRB Rep. April 436; Metrus Contracting, [1979] OLRB Rep. Oct. 1009; and Walters Lithographic Company Limited, [1971] OLRB Rep. July 406, in which the Board considered the following criteria or indicia: (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.
As indicated above, each of the three corporations is owned by a separate individual. However, the location of financial control over the companies is much less clear. Although there is no direct evidence that any of the respondents exercises total financial control over any of the others, there is evidence of rather unusual financial arrangements which have existed from time to time among the respondents, through which some degree of financial control could be exercised. For example, as indicated above, Lisgar and Known provided Sola with substantial financial assistance by deferral of invoicing and collection of invoiced amounts with respect to construction of the building in which the three corporations currently have offices. The deferral by Lisgar of collection from Sola continued in part until October of 198). The revision of Lisgar's lease with Sola prior to the sale of the building in 1980 also indicates that those companies do not deal with one another in a normal arm's length business manner; Lisgar voluntarily agreed to effectively double its monthly rent (from $700 (i.e., $1,000 less the $300 paid to "Calbion") to $1,400 (i.e., $2,000 less the $300 paid by "Calbion" and the further $300 paid by Sola)) in order to benefit Sola by increasing the selling price which Sola's building could command. Moreover, it is evident that Sola is financially dependent upon Lisgar and Known which are the sources of most, if not all of its "consulting" revenues.
Gin', B., who is the sole director of Sola, is also a director of Lisgar, along with Pat, and as noted above, Linda Gray, the secretary-treasurer of Lisgar, was until recently also an officer of Known. The existence or non-existence of common officers is a factor to be considered in deciding whether or not two firms are under common control or direction, but it is not necessarily the determining factor; the Board will also consider who in fact directs or controls the activities which give rise to employment: see J.D.S. Investments Limited, [1981] OLRB Rep. March 294; Donald A. Foley Limited, [1980] OLRB Rep. April 436; and Evans Kennedy Construction, [1979] OLRB Rep. May 388. Tendering projects, negotiating sub-contracts and supervising work are highly significant aspects of the management of a general contracting company. The evidence demonstrates that Gino B. (through Sola) provides those and other related services to Lisgar and Known on a regular basis. Sola has provided such services to Lisgar since 1974 when it (Sola) was incorporated. The extent of such services has gradually increased from year to year. However, the Sola invoices to Known which were entered as exhibits in these proceedings indicate that after providing some services to Known in 1975, Sola provided no further services to that company until 1980, during which year it invoiced Known over $50,000 for such services. The extent of Gino B.'s involvement in such activities (tL rough Sola) is vividly demonstrated by his comments with respect to the construction by Known of a new mezzanine office and lunch room addition for a company in Concord, Ontario during 1980. After explaining that he billed Known approximately $23,000 for that project, Gino B. stated: "I ran it (the project) from start to finish. All he (Gino) did was pick up the cheques." Gino B. further testified that Sola worked on all of the sites which his uncle listed in the documentation which he filed with the Board as Known's 1980 projects. Thus, it was Gino B. (through Sola) who provided much of the expertise necessary to effectively manage Known's activities as a general contractor in the ICI sector. During that same year, Lisgar, which had undertaken at least fourteen projects in Metropolitan Toronto and other areas of the province in each of the previous four years, engaged in only five projects, all of which were in Metropolitan Toronto.
There is a considerable degree of interrelationship of operations of the three respondents. They operate from the same premises and have a common reception area and board room. They share telephone lines and a number of expenses through an informal cost sharing arrangement. They also share the services of a bookkeeper and use the same bank, solicitors, and accountants. In addition to the extensive services which Sola provides to the other two respondents (as detailed above), Known does work for Lisgar and vice versa. Indeed, Lisgar sometimes uses Known employees (including carpenters) on Lisgar sites even though they remain on the Known payroll.
While there is no evidence before the Board that suggests that the companies (or any two of them) have been held out to the public as a single integrated enterprise, there is some evidence of centralized control of labour relations. Although the respondents have separate payrolls, Lisgar sometimes uses employees of Known on Lisgar projects without adding them to the Lisgar payroll. Thus, they remain on the Known payroll despite the fact that they are performing work for Lisgar. Moreover, the fact that Gino B. (through Sola) provides site supervision to both Lisgar and Known, is further evidence of such centralized control.
Although the aforementioned criteria or indicia do not all point in the same direction, having regard to all of the evidence before it, the Board is of the view that it is reasonable to infer that at least since 1980, the three respondents have carried on related activities or businesses under common control or direction. On May 1, 1980, The Labour Relations Amendment Act, 1979 (No. 2), S.O. 1979, c. 113 (Bill 204), which had been enacted in December of 1979, came into force. Included in that legislation was section 125(2) of the Act, the effect of which was described by the Board as follows in Hugh Murray (1974) Limited, [1981] OLRB Rep. Jan. 34, at paragraph 9:
"9. The language of section 125(2) is somewhat complex but its effect is relatively straightforward. The sections applies to all construction activity in the industrial, commercial and institutional sector of the construction industry and its purpose is to extend bargaining rights province wide wherever a trade union had bargaining rights for the employees of an employer in a particular geographic area. One result of the section is that if a local of a trade union has bargaining rights in one part of the province, all other locals of that union in the province of Ontario are deemed to have been recognized by the employer as the representative of employees employed in the ICI sector in their respective geographic areas. These bargaining rights were to be exercised through whatever local of the . . . union has jurisdiction in that particular geographic area. Section 125(2) is one of a series of legislative amendments introduced in order to create a scheme of province wide collective bargaining, by trade, in the industrial, commercial, and institutional sectors of the construction industry. In other sectors, the pre-existing scheme of local area bargaining has been preserved."
In his testimony before the Board on April 1, 1981, Pat stated: "I just recently learned that we were bound provincially. I'm aware of this for only the last three or four weeks." In view of the publicity which Bill 204 received prior to its enactment and implementation, the Board is unable to believe that Pat, a sophisticated and experienced businessman who is the principal of an established general contracting firm which had construction sales of over one and three quarter million dollars in 1979, would have been unaware of the effect of that legislation on his company until March of 1981. Pat's obvious lack of candour with respect to that matter and with respect to the degree of interdependency between Lisgar, Sola and Known confirms the Board's view that it is reasonable to infer in the circumstances of this case that once it became apparent that Lisgar, which until then had been unionized only in the Metropolitan Toronto area, would soon become unionized on a province-wide basis, the principals of the three respondents (with the possible assistance of Scave) arranged for Known rather than Lisgar to bid on ICI projects in areas of the province other than Metropolitan Toronto since Lisgar would be precluded from performing such projects using non-union labour. Sola (and to a lesser extent, Scave) played a pivotal role in this arrangement as it provided the managerial and other expertise necessary to permit Known, which up to that point had functioned primarily as concrete specialty contractor, to effectively function as a general contractor in the ICI sector of the construction industry in various locations outside of Metropolitan Toronto. Although there .s no evidence that this arrangement resulted in any direct financial benefit to Lisgar, it is clear that it did provide a substantial financial benefit to Gino B. (through Sola). In view of the close family ties which exist among the principals of the respondents, and in view of Pat's strong desire to confer financial benefits upon his son (as evidenced by the benefits which Gino B. derived from the financial arrangements summarized in paragraph 21 of this decision), it is reasonable to infer that Pat would view with favour and desire to support such an arrangement because it would keep the work in question in the Bifolchi family and provide a substantial financial benefit to his son. In deciding this matter, the Board has also taken into account the fact that Gino B. was an evasive witness whose original non-compliance with the requirements of section 1(5) of the Act necessitated an adjournment of the hearing and a Board order directing him to produce a number of relevant documents as the continuation of hearing; when those documents were ultimately produced, they revealed a far greater degree of functional coherence and interdependence among the three respondents than had been indicated by tie previous testimony of Pat, Gino and Gino B.
It was argued on behalf of the respondents that even if the Board found that the three conditions specified in section 1(4) had been met, it should decline to grant a declaration under that provision because of delay. However, on the basis of all the evidence before it, the Board is of the view that the applicant proceeded expeditiously to protect its bargaining rights by filing this application with dispatch once it became aware of a potential erosion of those rights. There i~; nothing to suggest that the applicant has slept on its bargaining rights in the instance case. The applicant did not acquire any bargaining rights for Lisgar until section 125(2) of the Act came into force on May 1, 1980, and there is no evidence before the Board that Known (or Sola) submitted tenders or had any other involvement with respect to any projects within the applicant's geographic jurisdiction (Board areas 9, 10, 11 and 12) before January of 1981 when it bid on the Cobourg sewage treatment plant, which bid gave rise to the present application.
Having regard to all of the evidence before it and the submissions of the parties, the Board in the exercise of its discretion under section 1(4) declares that the respondents United Shelters Ltd., c.o.b. as Lisgar construction Co.; Known Construction Company; and 281981 Ontario Limited, c.o.b. as Sola Developments Co., are one employer for the purposes of the Act, and the board further declares that the respondents are bound by the current collective agreement between the Carpenters' Employer Bargaining Agency and the Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America.