[1984] OLRB Rep. April 631
1773-83-R Labourers' International Union of North America, Local 1059, Applicant, v. Joe Franze Concrete Ltd., Respondent.
BEFORE: Richard M. Brown, Vice-Chairman, and Board Members B. L. Armstrong and J. D. Bell.
APPEARANCES: D. Strang and M. Ries for the applicant; D. Janes Forbes-Roberts and J.G.Knight for the respondent.
DECISION OF THE BOARD; December 20, 1983
In this application under section 1(4) of the Labour Relations Act, the Labourers' International Union, Local 1059 (hereinafter the "union") seeks a declaration that J. Franze Concrete Ltd. (hereinafter "J.F.C") and A. J. Concrete Ltd. (hereinafter "A.J.C.") constitute one employer.
As the company name sugggests, J.F.C. is engaged in concrete work, including the installation of curbs, sidewalks, patios and driveways. This work is performed within a sixty mile radius of London and produces a gross income of approximately half a million dollars annually. Twenty-nine people were on the company's payroll during 1983, at one time or another. J.EC. is owned by Joseph Franze and his spouse who are also the only corporate officers. The company was formed in early 1982, but Joseph Franze carried on a similar business in his own name between 1978 and 1982. Neither Franze nor J.F.C. have ever been a party to a collective bargaining relationship with the union.
Angelo Fortese, Joseph Franze's brother-in-law, is the president and sole shareholder of A.J.C. which was established in March, 1983. Fortese invested eight hundred dollars to pay the legal costs of incorporation and he borrowed a further one hundred and forty dollars from Franze; these are the only monies ever invested in the company. Shortly after A.J.C. was formed, and before it had any employees, Fortese voluntarily recognized the union. He testified that the company was launched because there were no unionized concrete firms in the area, and he saw an attractive opportunity for someone with a collective bargaining relationship to win the business of unionized general contractors, who are obliged to contract only with organized subcontractors.
Since August, 1981, Fortese has been employed by J.FC. as a working foreman; he continues in that employment. He does not have the power to hire or fire workers, cannot grant fellow employees more than a few hours of time away from their jobs, and is paid on an hourly basis.
Over the eight months of A.F.C.'s corporate life, it has bid upon only one very small project, the installation of a sidewalk at 850 Adelaide Street in London. This job was performed for the Consortium Group in June 1983, at a price of $1,550.00. J.F.C. had previously performed work for the Consortium Group, most recently in the spring of 1982. According to Franze, Robert Summerfield, the construction supervisor for the Consortium Group, telephoned him in April, 1983 to obtain a price quotation for 850 Adelaide Street, and Franze referred Summerfield to A.J.C., because the union had previously objected to J.F.C. 's presence on this site. Summerfield testified that he had heard that Fortese had formed a "union company", and that he called Franze to "liaise" with'Eortese. Fortese prepared a bid which Franze reviewed before passing it on to Summerfield. The job was performed in June, 1983 by Fortese with the assistance of L. Vecchio and F. Lepore who each worked a total of between five and seven hours. They are regularly employed by J.F.C., but, according to Fortese, he utilized their services at a time when J.F.C. did not need them. They were paid by A.J.C. for working at 850 Adelaide Street. Both Fortese and Franze denied that the latter worked on this job, although a union steward testified that he saw Franze on the site with a shovel in his hand. Fortese also borrowed a front-end loader and a pickup truck from J.F.C. for one or two days. A.J.C. purchased the concrete from which the sidewalk was constructed, and A.J.C. was paid by the Consortium Group for this work. Joseph Franze testified that, except for the initial discussions in April, he had no dealings with the Consortium Group about the sidewalk project. According to Franze, after the Adelaide Street job was finished, J.F.C. 's services were again requested by the Consortium Group, and he redirected the inquiry to A.J.C.
The