[1982] OLRB Rep. September 1332
2524-81-R; 0144-82-M Toronto-Central Ontario Building and Construction Trades Council (formerly known as The Building and Construction Trades Council of Toronto and Vicinity) on its own behalf and on behalf of its affiliate, The International Brotherhood of Painters and Allied Trades District Council #46, Applicant, v. M. J. Guthrie Construction Limited, Rosedale Construction, Respondent
BEFORE: Ian Springate, Vice-Chairman, and Board Members W. Gibson and M. Ross.
APPEARANCES: Michael Edwin Lloyd and Alex J. Ahee for the applicant; Brian P. Smeenk and M. J. Guthrie for the respondents.
DECISION OF THE BOARD; September 27, 1982
1. File No. 2524-81-R is an application under section 1(4) of the Labour Relations Act. File No. 0144-82-M is a referral of a grievance to the Board pursuant to section 124 of the Act. The two matters were heard separately by the Board, but because of the common background involved are being dealt with by way of a single decision. It should be noted that the section 1(4) application was filed by the Toronto-Central Ontario Building and Construction Trades Council on its own behalf and on behalf of the International Brotherhood of Painters and Allied Trades District Council #46, whereas the 124 referral was made on behalf of the Council and on behalf of seven of the Council's affiliates.
2. M. J. Guthrie Construction Limited ("Guthrie") was incorporated on April 30, 1958. Since the time of its incorporation the company has continuously been controlled and directed by Mr. M. J. Guthrie. On March 2, 1960 Mr. Guthrie registered the name of Rosedale Construction Company ("Rosedale") as the name under which he in his personal capacity would be carrying on business. Eight days later, on March 10, 1960, Mr. Guthrie on behalf of Guthrie, signed a "working agreement" with the Building and Construction Trades Council of Toronto and Vicinity, a non-certified council of building trades unions. The working agreement provided as follows:
PURPOSE
1. The general purpose of this agreement is to establish mutually satisfactory relations between the Company and its employees; to eliminate unfair practices; to establish and maintain satisfactory working conditions, hours of work and wages and to stabilize and encourage the construction industry.
RECOGNITION
2. The Company recognizes the Council and its affiliated unions as the collective bargaining agency for all its employees.
3. The Company agrees that it will employ only members of the unions affiliated with the Council and will let contracts or sub-contracts only to individuals or companies whose employees are members in good standing in the unions affiliated with the Council and will do all things necessary to insure that only members of the unions affiliated with the Council are employed in construction work in which the Company is engaged.
4. The Council through its affiliated unions will supply competent workmen to do the work of any trade or calling that may be required by the Company in the trades represented by the Council.
WAGES, HOURS AND WORKING CONDITIONS
5. The Company agrees to recognize and be bound by the agreements existing between each of the unions affiliated with the Council and the Toronto Builders' Exchange and specifically agrees that the provisions relating to wages, hours and working conditions set forth in the said agreements shall be binding on the company. In the event any of the said conditions of any of the said agreements are altered or amended at any time during the currency of this agreement, the Company shall be bound by such alterations and amendments. The said agreements are available for inspection by the Company at the office of the Council at 67 Harbord Street; at the Toronto Builders' Exchange, 1104 Bay Street, Toronto; and at the Department of Labour, Parliament Buildings, Toronto. The Council shall notify the Company of any amendments or alterations of the said agreements.
TERMINATION
6. This agreement shall remain in force for a period of one year from the date hereof and shall continue in force from year to year thereafter unless in any year not less than sixty days before the date of its termination, either party shall furnish the other with notice of termination of, or proposed revision of, this agreement: PROVIDED, however, that this agreement shall remain in full force and effect until completion of all jobs that have been commenced during the operation of this agreement.
3. It is clear that subsequent to the signing of the working agreement Guthrie regarded itself as a unionized contractor. Although no direct evidence was led on this point, we gather that Guthrie never sought to terminate the working agreement pursuant to paragraph 6 of the document, and further that the company adhered both to the terms of agreements with the Toronto Builders' Exchange and, after that body ceased to exist, by the terms of collective agreements negotiated between affiliates of the Building and Construction Trades Council of Toronto and Vicinity and other employers' associations.
4. For ease of reference, both the Building and Construction Trades Council of Toronto and Vicinity and a later council known as the Toronto-Central Ontario Building and Construction Trades Council will henceforth generally be referred to simply as "the Building Trades Council". It appears that all of the unions which were affiliated to the Building and Construction Trades Council of Toronto and Vicinity are currently affiliates of the Toronto-Central Ontario Building and Construction Trades Council.
5. From the time of its incorporation, Guthrie operated as a general contractor in the industrial, commercial and institutional sector of the construction industry in the Toronto area. The firm was particularly active in school construction. The average value of its contracts was in the $80,000 to $90,000 range, although it did at least one job valued at about $150,000. About 90 per cent of Guthrie's work was subcontracted to specialty firms employing members of unions affiliated to the Building Trades Council. The remaining ten per cent of the work was performed by construction labourers and carpenters in the direct employ of Guthrie. The labourers were members of the Labourers International Union of North America, Local 506 while the carpenters were members of one of the locals of the United Brotherhood of Carpenters and Joiners of America. Both of these unions were affiliates of the Building Trades Council. For its part, Rosedale acted primarily as a subcontractor performing work on ceilings, floors, drywall and concrete on residential jobs as well as on some schools. Rosedale hired non-unionized men for its projects. Mr. Guthrie described the work that they performed as essentially "labouring-type" work. The average value of contracts performed by Rosedale was about $30.000, with the maximum being about $50,000. Mr. Guthrie testified that the Scarborough Board of Education was Rosedale's biggest customer. Presumably on these jobs the school board was acting as its own general contractor. It is of some interest to note that at times Guthrie acted as a general contractor for the Scarborough Board of Education. Mr. Guthrie gave conflicting testimony as to whether or not Rosedale had ever bid on jobs as a general contractor. At one point he testified that Rosedale had never bid as a general contractor, while later he testified that while it had bid as a general, its bids had never been accepted. Whatever the truth, it is clear that, at a minimum, on a number of occasions Rosedale obtained the documents necessary to prepare bids as a general contractor and accordingly was reported as a bidder in the Daily Commercial News.
6. Rosedale and Guthrie have always operated out of the same office in Scarborough. A single phone number was used for both companies. Until fairly recently the number was listed only under the Guthrie name. The firms shared a truck, with no name printed on it, as well as certain equipment bearing the Guthrie name.
7. Over the years the Building Trades Council's contact with Guthrie was limited to ensuring that the council's records reflected the firm's correct address and phone number. The evidence is that the Building Trades Council became aware of the existence of Rosedale from various reports in the Daily Commercial News indicating that Rosedale had placed bids as a general contractor. In accordance with its practice, the Council would have written to either the owner or the architect of the project to request that the contract not be awarded to Rosedale but instead to a unionized bidder. In that the Daily Commercial News never reported that Rosedale had been awarded a contract as a general contractor, the Building Trades Council took no other action with respect to Rosedale. We are satisfied that until the events giving rise to these proceedings officials of the Building Trades Council were not aware of any link between Guthrie and Rosedale. If someone from the council had thought to look, he would have noticed that the Council's records for Guthrie and Rosedale showed that both firms had the same mailing address. However, no one thought to do such a check. This is understandable given the number of firms in the construction industry, and the lack of anything to indicate to officials of the Council that there was any link between Guthrie and Rosedale.
8. Although officials of the Council were not aware of any link between Guthrie and Rosedale, officials of the two unions whose members worked directly for Guthrie were aware of such a link. Mr. Guthrie testified that as far back as some ten or fifteen years ago Mr. D. Davidoff, at the time a representative with Labourers Local 506, sought, and obtained, an assurance from him that no Rosedale men would be employed on a Guthrie project at a school in Markham. Mr. Guthrie also testified that about ten years ago "Charlie" from the carpenters union asked Mr. Guthrie if Rosedale required carpenters, and he was advised that it did not.
9. About mid-1981 Mr. Guthrie decided to close down the Guthrie firm and continue only with Rosedale. According to Mr. Guthrie he did not intend that Rosedale would become a general contractor, but that it would continue doing 'just the same, subcontracting". The phone number used by both companies was put under the Rosedale name. The last contract obtained by Guthrie was in August of 1981 for work to be performed on the St. Williams School in the City of Toronto. The contract was awarded to Guthrie by the Metropolitan Toronto Roman Catholic Separate School Board.
10. In January of 1982 Mr. John Robbins, the business agent of Local 2 of the International Union of Bricklayers and Allied Craftsmen, an affiliate of the Building Trades Council, attended at the St. Williams School job. Mr. Robbins testified, and we accept his testimony over the conflicting testimony of Mr. Guthrie, that Mr. Guthrie advised him that the job was being performed by Rosedale. Mr. Robbins subsequently phoned the School Board and ascertained that the contract had in fact been let to Guthrie. On or about January 23, 1982 Mr. Robbins encountered a bricklayer on the site who did not belong to his union. This prompted Mr. Robbins to file a grievance against Guthrie under the Bricklayers' Provincial Agreement on the basis that Guthrie had failed to employ a member of his local. Guthrie eventually settled the grievance by hiring a member of Local 2 to work on the project and making a cash payment to the local.
11. In cross-examination Mr. Guthrie testified that two non-union painters in the employ of Rosedale were utilized on the St. Williams School site, a move which he said prompted a complaint from the painters union. Presumably the complaint was made by the International Brotherhood of Painters and Allied Trades, District Council 46, an affiliate of the Building Trades Council. It is to be noted that the 1(4) application was filed on behalf of the Painters District Council. Mr. Guthrie also testified that one construction labourer was employed on the project for an hour or so a day, and that this labourer was an employee of Rosedale. We gather from the above evidence, that none of the direct-hire employees originally assigned to the school jobs were members of unions affiliated to the Building Trades Council.
12. On or about February 1, 1981 Mr. Robbins telephoned the Building Trades Council and told them he felt Guthrie and Rosedale were one and the same. After several tries, Mr. M. Lloyd, a business representative with the Building Trades Council, talked to Mr. Guthrie on the phone. Mr. Guthrie advised him that the Guthrie firm had gone out of business back in August of 1981.
13. On April 12, 1982, the Daily Commercial News reported that Rosedale had placed a bid with the Scarborough Board of Education for an entry vestibule addition. Mr. Guthrie testified that Rosedale was not bidding on the job as a general contractor, since all that was involved was a shell for the entrance to a school. Presumably, Mr. Guthrie meant by this that if Rosedale obtained the work, it would not sub-let any of the work but rather perform it all with its own employees. No evidence was led as to the details of the work involved, but it seems to us that the work likely would have required the involvement of skilled tradesmen such as carpenters and/or bricklayers and was not just the "labouring type" of work normally performed by Rosedale's own employees. No detailed evidence was led concerning any other bids placed, or work obtained, by Rosedale since the decision was made to discontinue Guthrie.
14. After the events set out above, the Building Trades Council directed a corporate search of Guthrie and Rosedale. Initially no trace could be found of Rosedale, due to the fact that it had been "de-registered" in 1975 since no filings had been made subsequent to its original registration in March of 1960. A copy of the original registration was however eventually obtained from the Ontario Archives. Once the copy had been obtained, the section 1(4) application was filed.
15. Section 1(4) provides as follows:
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 corporations, 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.
16. At the hearing, counsel for Guthrie and Rosedale conceded that the statutory preconditions existed in this case for the Board to apply section 1(4) and treat the two companies as a single employer. Nevertheless, he contended, the Board should exercise its discretion and decline to do so because of the twenty-one year delay since the time that the two operations had started to exist side by side. Undue delay in bringing an application is one of the factors which the Board takes into account when deciding whether or not to exercise its discretion and made a declaration under section 1(4). In a number of cases the Board has concluded that because of the length of time in which a union has accepted the existence of related unionized and non-unionized employers it would be inappropriate to make a declaration that the two should now be treated as a single employer, for example, Farquhar Construction Limited, [1978] OLRB Rep. Oct. 914. Given the facts of this case, if Mr. Guthrie had continued to operate Guthrie and Rosedale in the same manner as he had been doing for the previous twenty-odd years, we would likely not be prepared to take any action which might alter the existing arrangement. However, Mr. Guthrie himself altered the status-quo by phasing out the Guthrie firm. The evidence also indicates that Rosedale had begun to perform at least some of the same type of work which previously had been performed by Guthrie. Indeed, even though the contract for the St. Williams School project was let to Guthrie, Mr. Guthrie not only held out that the work was being done by Rosedale, but in fact Rosedale employees including Rosedale painters were employed on the job.
17. The Board has stated that one of the purposes of section 1(4) is to prevent existing bargaining rights from being eroded by the devise of directing work away from a unionized firm to a related non-unionized firm. See: Evans-Kennedy Construction Limited, [1978] OLRB Rep. May 388. The evidence before us indicates an intent on the part of Mr. Guthrie to have Rosedale perform at least certain of the types of work formerly performed by Guthrie. We are satisfied that the effect of this will be to erode any bargaining rights held with respect to Guthrie. Such erosion could be protected against by a declaration under section 1(4) which would have the effect of putting Rosedale in the same position as Guthrie in so far as the Building Trades Council and the International Brotherhood of Painters and Allied Trades District Council #46 are concerned. However, to the extent that Rosedale continues to perform some of the same work as before, a section 1(4) declaration might also serve to extend bargaining rights to cover work formerly performed by Rosedale on a non-union basis. In the past Board has declined to make a section 1(4) declaration where it would result in an extension of bargaining rights. Before us then is the issue as to whether the Board's concerns about not extending bargaining rights should override the need to protect any existing bargaining rights from being eroded. As already noted, had Mr. Guthrie left untouched the relationship between Guthrie and Rosedale, the Board would likely have refused to make any section 1(4) declaration. However, Mr. Guthrie altered the existing situation and he did so in such a way that if left unchecked, the result will be the complete elimination of any relevant bargaining rights. Mr. Guthrie having taken this step, we feel it is appropriate for the Board to take action to protect whatever rights the International Brotherhood of Painters and Allied District Trades Council #46 and the Building Trades Council might have, notwithstanding that the effect of doing so might be to unintentionally expand existing bargaining rights.
18. Having regard to the above, with respect to the International Brotherhood of Painters and Allied Trades District Council #46, the Board will treat M. J. Guthrie Construction Limited and Rosedale Construction, being the style under which Mr. M. J. Guthrie carries on business, as constituting one employer for the purposes of the Labour Relations Act. The Board further declares that Mr. M. J. Guthrie carrying on business as Rosedale Construction is bound to whatever bargaining rights exist between Guthrie and District Council #46. We would note that we make no finding in these proceedings as to what, if any, bargaining rights are in fact affected by this declaration. The evidence before us suggests that Guthrie did not employ any painters either at the time that the working agreement was entered into or anytime thereafter. This being the case there arises a question of whether the working agreement could have created any legally enforceable bargaining rights under the Labour Relations Act with respect to either District Council #46 or any of its constituent members. The parties themselves did not address this issue at the hearing, and accordingly, we propose not to comment on it any further.
19. As indicated above, the Board is satisfied that the rights of The Building Trades Council insofar as they relate to Guthrie should also apply to Rosedale. At the hearing the parties did not really address the issue as to what rights the working agreement may have created vis-a-vis Guthrie and the Building and Construction Trades Council of Toronto and Vicinity. In these circumstances and given the importance of this issue, we feel it unwise to reach any conclusions on the matter in the context of these proceedings. At the hearing the parties did deal at some length with the issue of the relationship between the Building and Construction Trades Council of Toronto and Vicinity and the Toronto-Central Ontario Building and Construction Trades Council. The evidence leads us to conclude that the Toronto-Central Ontario Building and Construction Trades Council was charted on July 1, 1979 by the Building and Construction Trades Department of the American Federation of Labor and Congress of Industrial Organizations and that it was assigned the jurisdiction of three existing councils, including the Building and Construction Trades Council of Toronto and Vicinity. In these circumstances, we are satisfied and so declare that the Toronto-Central Ontario Building and Construction Trades Council stands in the same position vis-a-vis Guthrie as did the Building and Construction Trades Council of Toronto and Vicinity. The Board also declares that with respect to the Toronto-Central Ontario Building and Construction Trades Council acting on its own behalf, the Board will treat M.J. Guthrie Construction Limited and Rosedale Construction, being the style under which Mr. M. J. Guthrie carries on business, as constituting one employer for the purposes of the Labour Relations Act.
20. We turn now to consider the referral of the grievance in File No. 0144-82-M. The referral was filed on behalf of the Building Trades Council and seven of its affiliates. The grievance alleges a violation of the working agreement on the St. Williams School project. Having regard to the provincial bargaining sections of the Act, we are satisfied that with respect to the industrial, commercial and institutional sector of the construction industry (which includes school construction) as of April 30, 1978, Guthrie could have been bound only by the provisions of the provincial agreements sanctioned under the Act. This is made clear by section 146 which provides, in part, as follows:
146.-(l) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.
(2) On and after the 30th day of April,1978 and subject to sections 139 and 145, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers'
organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void.
It follows from the above that on the St. Williams School project, the working agreement could not have had any force or effect either as a collective agreement or as some other type of enforceable arrangement. There is no grievance before us alleging that Guthrie has violated any of the provincial agreements. This being the case, since this matter does not involve a referral of a grievance arising under a valid collective agreement, it can not be the proper subject matter of a referral under section 124.
21. The grievance is accordingly dismissed.