Ontario Labour Relations Board
[1983] OLRB Rep. April 605
2413—82-M United Brotherhood of Carpenters and Joiners of America, Local Union 1669, Applicant, v. 384368 Ontario Limited and Thunderhawk Developments, Respondents
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members A. Hershkovitz and J. A. Ronson.
DECISION OF THE BOARD; April 15, 1983
The Board has heard the evidence of the parties to this grievance referral with respect to a preliminary issue of the identity of the proper employer of the persons on whose behalf the grievance was brought. The hearing dealing with this preliminary issue at which the evidence was received took place on March 10th and the parties agreed to make written submissions to the Board as to how it should determine that issue on that evidence. Prior to the date when their submissions were to be filed, the Board received a request from counsel for the applicant ("Carpenters Local 1669") to defer determination of the issue until the same issue was resolved in another application to which the respondent herein was also respondent.
That application was an application for certification made by the Labourers' International Union of North America, Local 607 ("Labourers Local 607") with its construction labourers allegedly employed by the respondent herein. The Carpenters Local 1669 has filed an intervention in that application. The Board issued an interim decision on March 28th declining to accede to counsel's request stating in part as follows:
Counsel for the applicant herein has requested that the Board not determine the issue of the identity of the proper employer until the Board can have before it the facts with respect to the same issue which counsel expects to be raised in the application for certification.
The Board declines to accede to counsel's request. The application for certification is an entirely separate matter. Moreover, the evidence with respect to the identity of the proper employer in the grievance referral is already before the Board and counsel's letter does not reveal any grounds which might be cause for the Board to re-open this matter in order to consider further evidence on this preliminary issue.
- In a letter dated April 6, 1983, counsel has requested that the Board reconsider its interim decision and ..... await the findings of fact in [the application for certification of Labourers Local 607] before determining the question now before it.". Counsel bases his request on charges contained in the application for certification with respect to alleged conduct of the respondent at two meetings which it is alleged to have held with its employees. These allegations are as follows:
On or about January 4, 1983, the Respondent, Rodger Dolyny, called a meeting at the aforementioned job site of all the employees of the Respondent, Thunderhawk Developments, at the aforementioned job site. Inter alia, he advised the employees that those who joined a Union would be fired and that if a Union were certified senior members of the Union would displace the current employees.
On or about February 23, 1983, the Respondent, Rodger Dolyny, called a meeting at the aforementioned job site of all the employees of the Respondent, Thunderhawk Developments, at the aforementioned job site. Inter alia, he advised the employees that he could discharge employees on the slightest pretext, that if employees objected to conditions of work at the site they should quit and that any problems should be directed to him and distributed a purported contract of employment which the employees were directed to sign or be discharged. (emphasis in the original)
Counsel's letter had this to say about those allegations:
We draw the Board's attention in particular to paragraph 2 and 3. While it is conceded that the statements contained therein are no more than allegations of fact at the present time which have yet to be proved we submit that such allegations if established are very material to the Board's determination in the present case. Specifically, we submit that the issues raised in the Application for Certification and related Section 89 Complaint go directly to the question of the "consensual element" of the employment relationship a factor noted as being of significance by the Board in, for example, the unreported decision of Group Thirty Three Limited (OLRB File 5889—74—R, December 17, 1974). Any question that the employees who had to be "advised" of who their employer was by Dolyny and continued to work notwithstanding such advice ... must be viewed in light of the allegation [that] at a meeting held of employees a purported contract of employment was distributed which the employees were directed to sign or be discharged.
These are matters of course in respect of which the applicant herein had no knowledge and therefore could not have addressed or even reasonably anticipated when the matter first came on for hearing.
The application for certification was heard by the Board, differently constituted than herein, on April 12th, 13th and 14th. If the above allegations were pursued by Labourers' Local 607, the Board constituted to hear that application is seized with making the findings of fact with respect to the allegations as well as with respect to the issues of the identity of the proper employer. While that issue is common to both applications, the parties are different and the applications are before the Board differently constituted in each case. Moreover, the evidence with respect to the common issue is already before the Board in the instant case.
Assuming, without concluding, that there could be circumstances where the composition of the Board and the parties are different in two separate proceedings which have a common factual issue, wherein the Board in one case might be prepared to consider the findings of fact in the second case, the Board herein is not persuaded that those circumstances exist here. The evidence is complete on the preliminary issue in the instant case. This panel of the Board is seized with this matter and therefore is obliged to determine the issue based upon the evidence it has already heard. That determination cannot be properly influenced by findings of fact made by another panel of the Board based on evidence which might be different in the application for certification.
For these reasons the Board is not prepared to reconsider its decision which issued March 28th.