Ontario Labour Relations Board

[1982] OLRB Rep. August 1186

0420-82-R Labourers International Union of North America, Local 183, Applicant, v. Karvon Construction Limited, Respondent.

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members H. Kobryn and J. Wilson.

DECISION OF THE BOARD; August 4, 1982

I. The Board issued a decision June 17, 1982 granting two certificates pursuant to section 144(2) of the Labour Relations Act to the Labourers International Union of North America, Local 183 ("Local 183"). The first certificate was issued to Local 183 on its own behalf and on behalf of all other affiliated bargaining agents of the Labourers International Union of North America and the Labourers International Union of North America Ontario Provincial District Council in respect of "..... all construction labourers in the employ of [Karvon Construction Limited] in the industrial, commercial and institutional sector of the construction industry of the Province of Ontario... .". The Labourers International Union of North America and the Labourers International Union of North America Ontario Provincial District Council together comprise the employee bargaining agency designated under section 139(1) of the Act to represent construction labourers in province-wide collective bargaining in that sector. The second certificate was issued to Local 183 in respect of all construction labourers in the employ of Karvon Construction Limited in the Board's geographic area #8, excluding the industrial, commercial and institutional sector. A letter dated July 20, 1982 from the solicitors for Karvon Construction Limited ("Karvon"), which was delivered to the Board that same day, concludes with the following paragraph:

"We would therefore ask for this matter to be reopened so that the employer may file a reply and for a hearing so that the employer may give evidence."

The Board considers this to be a request for it to reconsider its decision pursuant to its discretion under section 106(1) of the Act.

2. Karvon appears to be relying substantially on another decision of the Board, differently constituted, in Board File No. 0043-81 -R. That was a decision which issued August 21, 1981 (Reported [1981] OLRB Rep. Aug. 1155) in respect of an application made under section 144 of the Act by Local 183 in which Karvon was also the respondent. That application had been made on April 6, 1981 and a hearing was held into the application on June 5, 1981. The Board's record in that case reveals that Karvon's solicitors appeared at the hearing and made representations on behalf of Karvon with respect to the application. The Board found that the employees whom the applicant was seeking to represent were employees of another employer, not Karvon. In major part that decision states as folows:

"3. The applicant seeks to be certified to represent certain construction labourers engaged in general cleanup duties on the Normandy Place residential housing project in Oakville. It is the contention of the applicant that these labourers are the employees of the project manager on site, Karvon Construction Limited ('Karvon') and accordingly it named Karvon as the respondent in these proceedings. Karvon, however, contends that the labourers are in fact employees of the owner of the project, namely, Oakville Community Homes Incorporated ('Oakville'). It is not disputed that all other tradesmen on the project are employees of various specialty contractors awarded contracts on the project by Oakville.

4. At the hearing, counsel for Karvon set forth the facts he claimed were relevant to the issue of which company employed the employees in question, and these were accepted as correct by counsel for the applicant. For his part, counsel for the applicant added only that the employees 'feel' that they work for Karvon, a statement accepted by counsel for Karvon. Having agreed with each other concerning the facts they desired to put before the Board, neither counsel called any viva voce evidence.

5. Apart from the statement that the employees 'feel' that they work for Karvon, the facts agreed to by counsel primarily relate to the formal arrangements between Oakville and Karvon, and with the 'form' of the employment relationship covering the construction labourers and the project superintendent who hired the labourers and directs them in their work. These facts indicate that at least in terms of 'form' the superintendent and the construction labourers are employed by Oakville. Indeed, on the basis of the material put before us, Karvon's functions appear to be limited to performing certain routine tasks on behalf of Oakville, acting as an advisor to Oakville, and serving as a conduit through which Oakville pays its accounts.

6. In his submissions to the Board, counsel for the applicant contended that notwithstanding the formal relationship between Oakville and Karvon, and the fact that Oakville appears to have the final decision-making authority with respect to the job in question, the Board should assume that Karvon, with its expertise, in fact makes all the important decisions affecting the project, including all decisions with respect to the hiring and direction of the superintendent and the construction labourers, and that accordingly the Board should conclude that Karvon is their true employer. In determining which of two or more companies is the employer of a group of employees, the Board concerns itself not only with form and appearances, but also with the realities of the situation. See: Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538 and the cases cited therein. In the instant case, however, no evidence was led or facts agreed to which would establish that the realities of the employment relationship governing the construction labourers are such that the Board should conclude that Karvon is in fact their true employer. Having regard to the role that construction industry project managers usually perform, it is easy to speculate as to whether Karvon in fact has true decision-making authority on the project, and whether the project superintendent reports to, and takes direction from, officers of Karvon. However, the Board cannot act on the basis of speculation but must instead rely on the material actually put before it. On the material before us, we cannot conclude that Karvon is the emploi'er of the employees sought to be represented by the applicant. Accordingly, the application is hereby dismissed."

(Emphasis added.)

3. The application at hand was made May 28, 1982. On May 31, 1982, the Board sent Karvon by registered mail a "Notice of Application for Certification, Construction Industry" (Form 77) together with a copy of the application and other documents to be completed by Karvon and returned to the Board. The Form 77 and its accompanying form letter each contained the advice that the terminal date for the application was June 8, 1982 and instructed Karvon on the requirement to return the completed documents by that date. This is the date by which the applicant must also file its membership evidence and supporting documentation. Paragraph 8 contains the following precautionary statement set entirely in capital letters:

"If you fail to file a reply or the list of employees and documents containing signatures as set out above within the time fixed by paragraph 5 of this notice or if your reply is incomplete, the Board may proceed to dispose of the application on the evidence and representations before it without further notice to you and without a hearing.

In accordance with the Board's customary procedures in handling applications for certification in the construction industry, a clerk of the Board contacted Karvon on June 2nd to ascertain whether the Board's forms had been received and whether Karvon had posted the Notice to Employees about the application, which was one of the documents sent with the Form 77. The Board's record notes that Karvon claimed not to be the employer of the men on the job sites (set out in the application). In view of that response, notices of the application were sent individually to the employees by special delivery mail the next day, June 3rd. The Board's clerk contacted Karvon again on June 9th to see if its reply was forthcoming. That call led to a Board Officer contacting Karvon's solicitor later that day. The Board's record indicates that the officer was advised that a reply would be filed. The record indicates further that the same officer contacted the office of Karvon's solicitor twice on June 15^th, once in the morning and once in the afternoon. On the second contact the officer was advised that no reply had been made. On June 17th the Board issued its decision together with the two certificates referred to above.

4. In addition to not filing a reply, Karvon failed to file a list of employees and specimen signatures. Nor was there any request from Karvon, or any other party for that matter, that the Board hold a hearing into the application. Therefore the Board proceeded to dispose of the application without a hearing pursuant to its discretion under section 102(14) of the Act and on the facts alleged in the application, the membership evidence and Form 80, "Declaration Concerning Membership Documents, Construction Industry". While the alleged facts included the information that Karvon had three projects, 2 in Toronto and I in the Borough of Scarborough, the Board had no alleged facts before it with respect to who the owner of the projects was, or the relationship, if any, between the owner and Karvon. Nor were there any facts alleged to contradict the allegation implicit in the application that Karvon was the employer of the persons whom the applicant was seeking to represent. In short, this application is with respect to different projects onjob sites than the first one and the Board had none of the facts which, by agreement of Local 183 and Karvon, had been before the Board, differently constituted, when it disposed of the earlier application. Had the respondent filed a reply, the situation might have been otherwise.

5. Now, a month after the Board's decision in the instant application has issued, Karvon is seeking an opportunity to have the application "..... reopened so that the employer may file a reply and for a hearing so that the employer may give evidence.". Except for the statement in the second paragraph of the letter that "There has been no change in the facts given in evidence at [the hearing with respect to Board File No. 0043-82-R]... .", the letter contains no specific indication of what Karvon's responsibilities are for the projects named in the application or any other specific, alleged facts which might support a similar finding in this application to that made in the earlier application.

6. The Board has stated so frequently in dealing with the matters which come before it that, in labour relations mattes, time is of the essence, that it is almost trite to reiterate that statement here. Nonetheless it remains true, especially with respect to applications by trade unions seeking to acquire bargaining rights. It is particularly pertinent with respect to such applications in the construction industry because of the relatively short duration of the employment relationships which prevail in that industry. The legislature's sensitivity to that fact is evident in the construction industry provisions of the Act relating to the acquisition and termination of bargaining rights as well as in the provisions contained in the Rules of Procedure under the Act.

7. The realities of the situation are demonstrated in the Board's processing of uncomplicated applications for certification in the construction industry. These applications are usually considered by the Board on the day immediately following the terminal date for the application and, if the requisite membership support is present for certification without a representation vote, the decision and attendant certificate will usually issue that same day or the following one. Accordingly, the Board's administrative procedures are established to expedite these applications, consistent with the objectives of the Act and its Rules of Procedure. That is why a Board clerk contacts the respondent to an application to see if it has received the Board's notice and related documentation. When that contact indicated that Karvon was claiming not to be the employer of the employees affected by the application, the Board took steps to assure that those persons received individual notice of the application. Again, when no reply was received by the day after the terminal date further telephone inquiries were made by Board staff with Karvon and its solicitor to see if a reply was to be forthcoming. Notwithstanding these contacts and the clear warning set out in paragraph 8 of the Board's notice to the employer about the application for certification, no reply had been received from Karvon by June 17th when the Board issued its decision.

8. The respondent appears to be relying, at least in part, on what it claims to be confusion arising out of the Board's decision in the first application being followed by the instant application approximately 10 months later. Whatever Karvon's reasons were, it has chosen to ignore the express requirements upon it to respond to the application in a timely fashion and to ignore the clear warning emphasized in paragraph 8 of Form 77. In so doing, it was acting at its own peril and must accept the consequences.

9. There is a need for finality in the Board's decisions so that the parties affected may rely on them and in the circumstances present here in which the respondent has failed to act with due diligence when notified of this application, the Board does not consider this to be an appropriate case in which to exercise its discretion pursuant to section 106(1) of the Act to reconsider the decision which issued June 17th in this application. Therefore the request set out in the final paragraph of the letter dated July 20, 1982 from Karvon's solicitor is denied.