[1983] OLRB Rep. June 938
0023-83-R United Brotherhood of Carpenters and Joiners of America, Local Union No. 446, Applicant, v. Pitts Engineering Construction, a division of Banister Continental Ltd., Pitts Atlantic Construction Limited, Banister Continental Ltd., Respondents
BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members J. Wilson and C.
A. Ballentine.
APPEARANCES: Michael A. Church, Matti Rissanen and Karl Ball for the applicant; Brian P Smenk and F.A.M. Tremaiyne for the respondents.
DECISION OF THE BOARD; June 2, 1983
This is an application under section 63 of the Labour Relations Act for a declaration that there has been a sale of a business by Pitts Engineering Construction Limited and Pitts Atlantic Construction Limited to Banister Continental Ltd. Alterntively, the applicant seeks a declaration under section 1(4) of the Act that the three respondents be treated as a single employer for purposes of the Act.
The facts in this matter are uncontroverted.
— Pitts Atlantic Construction Limited, which was originally incorporated pursuant to the laws of Newfoundland, was wound up and struck off the Register of Corporations for the Province of Newfoundland as of January 4, 1983, and is no longer in business
— On August 31, 1982 Pitts Engineering Construction Limited amalgamated with Banister Continental Ltd.; of which it had previously been a wholly owned subsidiary.
— Banister Continental Ltd. always had and continues to carry on business in various sectors of the construction industry other than the ICI sector, including the pipeline sector and the sewer tunnels and watermains sector.
— Banister Continental carries on business in the pipeline sector through its Cliffside Construction division.
— Pitts Engineering Construction Limited has carried on business in the ICI sector.
— Upon amalgamation with Pitts Engineering Construction Limited on August 31, 1982, Banister Continental Ltd. established a division named "Pitts Engineering Construction, a division of Banister Continental Ltd." which carries on business and plans to continue to carry on the business formerly carried on by Pitts Engineering Construction Limited and Pitts Atlantic Construction Limited in the Province of Ontario.
— Banister Continental Ltd. never attempted to hide the fact that Pitts Engineering Limited was a wholly owned subsidiary.
— Pitts Engineering Construction Limited and Pitts Atlantic Construction Limited are bound by the Carpenters province-wide agreement covering work in the ICI sector and, in addition, the applicant union holds all sector bargaining rights for the carpenters and carpenters apprentices in a number of board areas.
The union seeks a Board declaration that Banister Continental Ltd. is the successor employer and that the union's bargaining rights in respect of Pitts Engineering Ltd. and Pitts Atlantic Limited are now in respect of the employees of Banister Continental Ltd.; the remaining legal entity. The union argues that the declaration which it seeks would not result in an expansion of its bargaining rights as none of the other operating divisions of Banister employs carpenters or perform the work of the trade. Furthermore, the union asserts that the issuance of the declaration which it seeks is necessary to protect it from any further spin-off by Banister of a division which might perform the work of the trade with non-union tradesmen. The union argues that if it does not assert its claim now it might be found at a later date to have slept on its rights.
The respondents argue that to grant the declaration which the union seeks would result in an expansion of the union's bargaining rights to cover all of the Banister operations. The respondents maintain that if the declaration sought was issued it could give rise to a number of jurisdictional disputes especially in respect of certain work performed by its Cliffside Division. Where, as in this case, the parent company had dealt with the union in a straightforward and honest manner and has never attempted to set up non-union divisions or subsidiaries for the purpose of undermining the union's bargaining rights, and where the declaration which the union seeks would result in an expansion of the union's bargaining rights with resultant jurisdictional disputes, the respondents take the position that the declaration which should issue in this case is that Pitts Engineering Construction, a division of Banister Continental Ltd. is the successor employer.
The Board has long held that the purpose of section 1(4) and section 63 is to preserve, not to extend, union bargaining rights. The union held bargaining rights for both Pitts Engineering Construction Limited and Pitts Atlantic Construction Limited. These companies now carry on business in Ontario as Pitts Engineering Construction, a division of Banister Continental Ltd. It is the bargaining rights in respect of this latter entity which are the subject matter of this application. We accept the submissions of the respondents that a declaration which confirms union bargaining rights beyond Pitts Engineering Construction, a division of Banister Continental Ltd. would constitute an extension of the union's bargaining rights. Indeed, if this was an application for certification in respect of employees of Pitts Engineering Construction, a division of Banister Continental Ltd. it would not be open for the respondents to argue that the applicant union must show membership support sufficient to sweep all of the relevant employees in Banister Continental Ltd. The absence of carpenters or carpenters' apprentices presently in the employ of either Banister or Cliffside does not in any way lessen the fact that a declaration that the union holds bargaining rights for Banister Continental Ltd. would constitute an extension of the union's bargaining rights. Finally, neither section 1(4) nor section 63 is designed to deal with hypothetical corporate reorganizations or transactions. If in the future Banister creates another corporate entity to do some or all of the work presently performed through its Pitts Engineering Construction division, the union will be in a position to bring a section 1(4) application. The timeliness of that application will be determined on the basis of when that entity came into being and when the union could reasonably have been aware of its existence.
Having regard to all of the foregoing, we hereby exercise our authority under section 63 of the Act to declare that Pitts Engineering Construction, a division of Banister Continental Ltd. is the successor employer in this matter.