[1982] OLRB Rep. November 1649
0797-81-R; 1223-81-R Labourers' International Union of North America, Local 183, Applicant, v. J.C. Carpentry, Respondent; The Carpenters' Section of the Carpenters' District Council of Toronto and Vicinity, United Brotherhood of Carpenters and Joiners of America on behalf of Local Union 1190, Applicant, v. Camay Carpentry Limited J.C. Carpentry Limited J.C. Carpentry Respondents
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members W. Gibson and H. Kobryn.
DECISION OF THE BOARD; November 24, 1982
1For reasons given elsewhere in this decision, the name of the respondent J&C Carpentry appearing in the style of cause of the application in Board File No. 0797-81-R is amended to read "J. C. Carpentry" and the names J.C. Carpentry Ltd., Camay Carpentry Limited, J.C. Carpentry and J & C Carpentry appearing in the style of cause of the application in Board File No. 1223-81-R are amended to read "Camay Carpentry Limited, J.C. Carpentry Limited and J.C. Carpentry".
2Following four days of hearings into these two applications the Board issued a decision which, in part, reads as follows:
- For reasons which will be issued in writing at a later date and having regard for the evidence and representations of the parties with respect to the request for reconsideration in File No. 0797—81—R and with respect to all matters arising out of and incidental to the application filed under section 1(4) and 63 of the Act, the Board finds, declares and directs as follows:
(a) that the Board should exercise its discretion under section 106(1) of the Labour Relations Act to amend, vary or revoke its decision which was issued July 31st, 1981, including the certificate which was issued pursuant to that decision and further that Local 183 and J & C Carpentry return to the Registrar forthwith the certificate which was issued July 31st, 1981;
(b) that Camay Carpentry Limited and the United Brotherhood of Carpenters and Joiners of America, Local 1190 were bound to the collective agreement between the Toronto and District Carpentry Contractors Association and The Carpenters' Association and The Carpenters' Section of the Carpenters' District Council of Toronto and Vicinity, United Brotherhood of Carpenters and Joiners of America, on behalf of Local Union 1190 signed May 16th, 1980 to be in effect from May 1st, 1979 until April 30th, 1981;
(c) that a sale of part of a business within the meaning of section 63(1) of the Labour Relations Act has taken place between Camay Carpentry Limited, the predecessor employer, and J.C. Carpentry, the successor employer on or about May 31st, 1980;
(d) that J. C. Carpentry, as the successor employer in the foregoing sale of part of a business became bound to the collective agreement referred to in item (b) above and consequently is bound to the successor collective agreement between the Toronto and District Carpentry Contractors Association and The Carpenters' Section of the Carpenters' District Council of Toronto and Vicinity, United Brotherhood of Carpenters and Joiners of America, on behalf of Local Union 1190 signed May 6th, 1981 to be in effect from May 4th, 1981 until April 30th, 1983;
(e) that the name J & C Carpentry appearing in the style of cause in File No. 0797—81—R as the name of the respondent be amended to read J.C. Carpentry and further that paragraph 6 of the Board's decision with respect to that application be deleted and replaced by the following:
"It appears to the Board that the respondent had in its employ in the Board's geographic area #8 carpenters only on the date of the making of this application. Having regard to the foregoing and pursuant to section 6(1) of the Labour Relations Act, the Board further finds that all carpenters and carpenters' apprentices in the employ of the respondent in Metropolitan Toronto, The Regional Municipality of York and the County of Peel, the Township of Esquesing and the Towns of Oakville and Milton in the County of Ontario, excluding the industrial, commercial and institutional sector, save and except non-working foremen, persons above the rank of non-working foreman and all carpenters and carpenters' apprentices covered by a subsisting collective agreement between the Toronto and District Carpentry Contractors Association and The Carpenters' Section of the Carpenters' District Council of Toronto and Vicinity, United Brotherhood of Carpenters and Joiners of America, on behalf of Local Union 1190, constitute a unit of employees of the respondent appropriate for collective bargaining.";
(f) that the Board's decision in File No. 0797—81—R be amended further by substituting the following for paragraph 7 and renumbering the present pargraph 7 and paragraph 8:
"For the purposes of clarity, the Board notes that the subsisting collective agreement referred to in paragraph 6 above applies only to high-rise residential building projects;
(g) that a revised certificate will issue to Labourers' International Union of North America, Local 183 pursuant to the amended paragraph 6 as set out in item (e) above.
3The chronology of the circumstances under which these two applications came to be heard together were set out in some detail in the Board's decision and it is sufficient here just to summarize them briefly. Some two weeks after the Board had certified the applicant ("Local 183") to represent the carpenters and carpenters' apprentices employed by the respondent ("J.C. Carpentry") in the residential sector in Board area 8 of the construction industry, the applicant in Board File No. 1223-81-R ("the Council") requested that the Board reconsider its decision to certify Local 183. The Board had certified Local 183 without a hearing pursuant to the Board's discretion under section 102(14) of the Labour Relations Act. In making the request for reconsideration, the Council was relying on a collective agreement which it alleged to be binding on J.C. Carpentry. Approximately three weeks after making its request, the Council filed the application in Board File No. 1223-81-R seeking to have the Board apply sections 1(4) and 63 of the Act with respect to the respondents named in the application.
4The decision herein deals with three matters arising out of the earlier one: the reasons for granting the reconsideration, for revoking the certificate originally issued to Local 183 and issuing an amended certificate; the reasons for finding that the sale of part of a business had taken place between Camay Carpentry Limited and J.C. Carpentry; and the Board's decision with respect the Council's request for the declaration under section 1(4) of the Act that Camay Carpentry Limited, J.C. Carpentry Limited and J.C. Carpentry be treated as constituting one employer for purposes of the Act.
5There were two significant events taking place at the times material to the application for certification. These were a postal strike and an intensive campaign to organize employees of house building contractors in the residential sector of the construction industry in the Board's geographic area no. 8 being carried on by Local 183 and by the Council's affiliated Local 1190 in direct competition with each other. One of the alternative methods used by the Board to contend with the postal strike was to set up a "pick-up" area at the Board's offices where parties who regularly appeared before the Board could pick-up their mail from it. A business representative of the Council was assigned to pick-up mail for it and for Local 1190.
6Mr. Kenneth Weller, business agent for Local 675, a sister Local of Local 1190, had been loaned to Local 1190 to assist Mr. James Tobin in the Local's campaign to organize employees of house building contractors. Tobin is an international representative of the United Brotherhood of Carpenters and Joiners of America ("the United Brotherhood"). Part of Weller's duties was to scrutinize all of the documents which were being processed in connection with applications for certification being filed by Local 1190. He testified that there were some 20 applications in which both Local 183 and Local 1190 filed applications and/or interventions. He and Tobin relied on reports from the representatives who were conducting the campaign at the job sites as to the organizing activity of Local 183. Weller testified that Local 1190 did not receive any notice of the application for certification here at issue but either he or Tobin subsequently learned that an application had been made whereupon they checked the application against the list of employers bound to the collective agreement between the Toronto and District Carpentry Contractors Association and The Carpenters' Section of the Carpenters' District Council of Toronto and Vicinity. This resulted in them contacting the Council's solicitor who filed this request for reconsideration.
7Section 113(1) of the Act which deals with mailed notices and communications provides as follows:
113.—(l) For the purposes of this Act and of any proceedings taken under it, any notice or communication sent through Her Majesty's mails shall be presumed, unless the contrary is proved, to have been received by the addressee in the ordinary course of mail.
The Board's record of this application shows a copy of the notice of the application for certification by Local 183 to have been prepared for Local 1190. The interruption of postal services by the strike, however, would not have permitted the Board to send the notice ..... through Her Majesty's mails . . ." therefore the presumption set out in section 113(1) would not apply in these circumstances. The Board, having heard Mr. Weller's evidence and the submissions of the parties thereon is satisfied that Local 1190 did not receive notice of the application for certification by Local 183. The Board is also satisfied that Local 1190 acted promptly to protect its potential interests when it learned that the application had been made. Having further regard for the evidence before the Board, the submissions of the parties, the circumstances with respect to the postal strike and the fact that bargaining rights alleged to have been subsisting at the time of the application were at issue in the request for reconsideration, the Board is satisfied that these are circumstances in which it is advisable for the Board to reconsider its decision with respect to the application.
8This decision was rendered orally at the hearing and after so doing, the Board proceeded to hear the evidence and the submissions of the parties with respect to the application filed under sections 1(4) and 63 of the Act, the bargaining relationship alleged to exist between J.C. Carpentry, the Council and Local 1190 and whether the Board should exercise its discretion under section 106(1) to vary or revoke its decision.
The Board heard the evidence of Mr. Giuseppe (Joe) Cantagallo with respect to the relationship between Camay Carpentry Limited ("Camay"), J.C. Carpentry Limited and J.C. Carpentry and the collective bargaining relationship with the Council and Local 1190. Cantagallo is the sole owner of J.C. Carpentry Limited and J.C. Carpentry and one of two partners in Camay. The Board heard also the evidence of Mr. Fred Leach, Business Manager of the Carpenters' District Council of Toronto and Vicinity and its Local 1190 with respect to the bargaining relationship between the Council, Local 1190 and the respondents. The Board's findings of fact based on their evidence are set out below.
9Cantagallo formed J.C. Carpentry in 1972 as a sole proprietorship and had registered it as such by the end of 1972 or early 1973. He operated it as a single proprietorship until August 1975 in the business of building single dwellings, townhouses and high-rise apartments in the residential sector of the construction industry. In August 1975, Mario Maggio invested in the partnership for a 50/50 share of its profits. They agreed to incorporate the partnership as Camay and this was completed by December 1975. Until then the partnership operated as J.C. Carpentry. Between August and December 1975 the two partners borrowed money to invest in Camay and Cantagallo brought to it all of J.C. Carpentry's assets. The value of these assets on Camay's books formed part of Cantagallo's share interest in Camay. The partnership continued the same kind of business as had been done by J.C. Carpentry until late May or early June of 1980 when the partnership was wound up. The partners divided the assets of the business according to their interests as recorded on its books. In this respect Maggio took one van and Cantagallo took a second one, a compressor, a lift truck and all of the other equipment which included mostly power tools. Camay had two contracts for the construction of houses at the time of dissolution. Maggio took the smaller of the two, which was for a house building project in Mississauga and Cantagallo took the other one which was for development in Newmarket consisting of single houses and townhouses. Cantagallo signed, in the name of J.C. Carpentry, the same contract as had existed between Camay and the builder. Camay had twelve employees at dissolution; Maggio took three of them and Cantagallo took the remainder. The dissolution of Camay was registered and the registration was confirmed in November 1981. The business of Camay was conducted from Cantagallo's home as had been the case with J.C. Carpentry prior to formation of the partnership. Cantagallo maintained the registration of J.C. Carpentry as a sole proprietorship after the formation of the partnership, but did not do any business in the name of J.C. Carpentry. Consequently, when the partnership was dissolved he immediately resumed business in the name J.C. Carpentry and continued to operate the business from his home.
10It was one these facts that the Board found that there had been a sale of part of Camay's business to J.C. Carpentry within the meaning of section 63(1) of the Act. The facts leave no doubt that J.C. Carpentry stepped into Camay's shoes with respect to the taking over of the larger of the two construction contracts, acquiring as Cantagallo's share of Camay all of its assets except the one van which was taken by Maggio and nine of the twelve employees who had worked for Camay. All of these employees went to work for J.C. Carpentry on the house building contract which Camay previously had held. There was no hiatus of business whatsoever. Thus, J.C. Carpentry has continued in the same business, employing most of the same employees, utilizing most of the assets formerly belonging to Camay. Therefore if Camay was bound to a collective agreement to which Local 1190 was also bound, that collective agreement would continue to be binding on J.C. Carpentry pursuant to the provisions of section 63(2) of the Act.
11The Council and Local 1190 are relying for their intervention in the application for certification on a collective agreement between the Toronto and District Carpentry Contractors Association ("the Association") and the Council on behalf of Local 1190 that is effective from May 4th, 1981 until April 30, 1983, or in the alternative, on a collective agreement effective March 23rd, 1978 until April 30th, 1979 between Camay and the Council on behalf of Local Union 1190. This latter agreement is in the identical form of the agreement between the Association and Council and has Camay's name added to the name of the employer in a space specifically provided for that purpose. The Board is satisfied that the agreement signed by Camay was identical in all respects, including its duration, with the collective agreement concurrently in effect between the Association and Council. The Board is satisfied also on the evidence that the agreement between the Association and Council and between Camay and the Council applied only to high-rise apartment construction in the residential sector of the construction industry.
12The Act defines a collective agreement in the following terms in section
l.—(1) In this Act,
(e) "collective agreement" means an agreement in writing between an employer or an employers' organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers' organization, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the employees, and includes a provincial agreement.
13The Association collective agreement purports to be binding on two groups of employers: members of the Association and employers who are not members of it. Camay is amongst the latter group of employers. The employers who are members of the Association are listed in Schedule 1 to the Agreement and the other employers are listed in Schedule 2. Cantagallo has not signed another Association agreement for either Camay or J.C. Carpenty since he signed the 1978-79 Association agreement for Camay. There have been two agreements signed between the Association and the Council, one for the period May 1, 1979 to April 30th, 1981 and the current agreement for the period May 4th, 1981 to April 30th, 1983. Cantagallo considered Camay to be bound to the 1979-81 Association agreement even though neither he nor Maggio had signed it for Camay. Cantagallo relied on the Association to bargain for Camay and to represent its interests in the negotiations. The Association advised Camay of the notice to bargain from the union and after negotiations were settled, advised Camay by letter of the new rates of wages and contributions to be paid. Camay received a copy of the collective agreement from the Association in due course. Camay performed under the collective agreement whenever it was doing work covered by it and part of its performance was to pay a uniform hourly contribution to the Association, the same contribution paid by its members, at the same time that Camay paid its other remittances for the union's welfare, pension and vacation pay funds. Cantagallo had signed the Association agreement for Camay because he had considered J.C. Carpentry to be bound by the same agreement and to have been represented by the Association in collective bargaining with the Council and Local 1190. J. C. Carpentry regularly had made the remittances called for by the collective agreement for welfare, pension, vacation pay and employer contributions to the Association during the period prior to the formation of Camay whenever it was working on high-rise apartment construction. In fact, when Camay was incorporated, one of the first acts Cantagallo performed was to go to the union office and advise them that Camay would be paying the wages of his employees in future. Notwithstanding the evidence that Cantagallo considered J.C. Carpentry to be bound by the Association's agreement, neither he nor the Council and Local 1190 produced in evidence a collective agreement or other document by which J.C. Carpentry undertook to be bound by the Association's agreement.
14Mr. Fred Leach has been involved personally on behalf of the Council and Local 1190 in the negotiations with the Association since the 1970-71 agreement. He has been chairman of the union s negotiating committee since 1975. During all of his experience, the Association has negotiated on behalf of its members and on behalf of the non-member employers. The Association has represented the non-member employers in grievances under the collective agreement. The only way a non-member employer can become covered by the Association agreement for the first time is to sign a copy of it. The form of the agreement specifically accommodates this in its style and that was the form of the agreement signed by Cantagallo for Camay. The prior practice of the Council had been to have a non-member employer sign a single-page document accepting to be bound by the Association's agreement. It later changed its practice and had all of the non-member employers who had previously signed the "pick-up" document sign a copy of the collective agreement and all new non-member employers do likewise. There have been no instances of non-member employers claiming not to be bound by the Association's agreement and specifically none of the respondents in Board File No. 1223-81-R have claimed not to be bound by the Agreement nor has anyone of them notified the Council or Local 1190 that it wished no longer to be bound by the Association's agreement. The Association's agreement has not been enforced in the house building part of the residential sector and has been applied only in the construction of high-rise apartment buildings. This is by way of a specific undertaking between the Association, the Council and Local 1190 that it will not be applied to house building until the Council and Local 1190 acquire bargaining rights in respect of the employees of 51 per cent or more of the employers working in the house building part of the residential sector.
15The Board finds on the evidence that Cantagallo's act of signing the 1978—79 Association agreement and Camay's subsequent performance under that collective agreement was intended and did give the Association the authority to bargain on behalf of Camay and bind it to the Association's agreement. All of the evidence before it with respect to the bargaining relationship supports and is consistent with that intention. No action has been taken by Cantagallo on behalf of either Camay or J.C. Carpentry to withdraw the authority from the Association to bargain on behalf of either Camay or
J.C. Carpentry. Therefore, when the 1978-1979 agreement expired, Camay continued to be bound by the 1979-81 collective agreement and when J.C. Carpentry became the successor employer in part of Camay's business on or about May 31st, 1980, it stepped into Camay's shoes with respect to its obligations under the Association's 1979-81 agreement and continues to be bound by the successor agreement which is in effect May 4th, 1981 to April 30th, 1983.
16It is for these reasons that the Board made the findings set out in items (b) and (d) of paragraph 5 of the prior decision as quoted in paragraph 2 above.
17Since the Association's agreement relates only to high-rise apartment construction, it does not operate as an absolute bar to the application for certification in Board File No. 0797—81—R. It does operate, however, as a partial bar with respect to that part of the residential sector described as high-rise residential building projects. It is for this reason that the Board amended its original description of the bargaining unit in the decision certifying Local 183 to read as set out in item (e) of paragraph 5 and subject to the clarity note in item (f) of paragraph 5.
18It remains only for the Board to deal with the application under section 1(4) of the Act to have the three respondents treated by the Board as constituting one employer for the purposes of the Act. The uncontradicted evidence before the Board is that Camay has ceased doing any business, is would up and dissolved and that J.C. Carpentry Limited has not conducted any business whatsoever. Even were the Board to make a finding in these circumstances that the three respondents or any two of them were carrying on associated or related business activities under common control or direction, and it makes no finding either way, the Board would see no useful labour relations purpose being served by granting the declaration requested and it would decline to exercise its jurisdiction to declare that the three respondents, or any two of them, be treated as constituting one employer for purposes of the Act.