[1983] OLRB Rep. September 1484

0298-83-JD The International Brotherhood of Electrical Workers, Local Union 773, Complainant, v. Jervis B. Webb Company of Canada, Ltd., Respondent, v. United Brotherhood of Carpenters and Joiners of America, Local Union 1244, Intervener, v. The International Association of Bridge, Structural and Ornamental Ironworkers and its Local Union 700, Intervener, v. Spider Installations Ltd., Intervener

BEFORE

Ian C. Springate, Vice-Chairman, and Board Members J. Wilson and C. A. Ballentine.

APPEARANCES

Alex Ahee, Doug Ryan and Ralph Terisigni for the complainant; M. D. Contini and W J. Olsen for the respondent and Spider Installations Ltd.; Lewis Gottheil, Jim Harrower and Stephen Krashinsky for the International Association of Bridge, Structural and Ornamental Ironworkers and its Local Union 700; James Nyman, E. Ryan and H. Martinak for the United Brotherhood of Carpenters and Joiners of America, Local Union 1244.

DECISION OF THE BOARD; September 28, 1983

1. The name of the respondent is amended to read:

"Jervis B. Webb Company of Canada, Ltd."

2. This matter arises out of a complaint under section 91 of the Labour Relations Act filed by the International Brotherhood of Electrical Workers, Local Union 773 (the "IBEW"). By way of the complaint, the IBEW alleges that Jervis B. Webb of Canada, Ltd. ("Webb") has wrongfully assigned certain inside construction work to a composite crew comprised of members of the International Association of Bridge, Structural and Ornamental Ironworkers, Local Union 700 (the "ironworkers union") and the United Brotherhood of Carpenters and Joiners of America (Millwright Division) Local Union 1244 (the "millwrights union"). It is the position of the IBEW that the work should have been assigned to its members.

3. When the complaint came on for hearing on June 6, 1983, Webb, the ironworkers union and the millwrights union all challenged the jurisdiction of the Board to inquire into the matter on the basis of section 9 1(14) of the Act. This section, which is set out below, prohibits the Board from inquiring into a complaint where a collective agreement contains a provision requiring the reference of any difference arising out of a work assignment to a mutually selected tribunal:

"The Board shall not inquire into a complaint made by a trade union, council of trade unions, employer or employers' organization that has entered into a collective agreement that contains a provision requiring the reference of any difference between them arising out of work assignment to a tribunal mutually selected by them with respect to any difference as to work assignment that can be resolved under the collective agreement, and such trade union, council of trade unions, employer or employers' organization shall do or abstain from doing anything required of it by the decision of such tribunal."

4. It was contended by the other parties, and not challenged by the IBEW, that Webb is bound to both the ironworkers and the millwright provincial agreements and that both of these agreements require that jurisdictional disputes be referred to the Impartial Jurisdictional Disputes Board (the "IJDB"). The IJDB operates pursuant to the plan for the settlement of jurisdictional disputes adopted by the Building and Construction Trades Department of the American Federation of Labour — Congress of Industrial Organizations. Webb and the other two unions contended that the IBEW is bound by a similar provision in article 509 of the IBEW provincial agreement which states as follows:

"509 JURISDICTIONAL DISPUTES

When a work claim dispute arises between the International Brotherhood of Electrical Workers and any other union, person or organization, which cannot be settled to the satisfaction of all parties concerned, such a dispute will not be the subject of a grievance under this Agreement but shall, without any stoppage of work or interference with the progress of the job, be processed by the Union as a complaint in the following manner for resolution:

Any jurisdictional dispute involving the parties to this Agreement concerning inside Construction Work shall be settled in accordance with the Plan for Settlement of Jurisdictional Disputes Nationally and Locally as approved by the Building and Construction Trades Department AFL-CIO or any other plan or method of procedure that may be adopted in future by the Building Construction Trades Department AFL-CIO."

5. The Board recognizes that for some time the IJDB has not been issuing "job decisions", although according to the IJDB all other aspects of the plan for the settlement of jurisdictional disputes is still in effect, and indeed, the President of the IJDB has been issuing directions with respect to the performance of disputed work. See: Ontario Hydro [1982] OLRB Rep. Feb. 248 and Stoney Creek Mechanical Limited [1982] OLRB Rep. Dec. 1917. In both of these cases the Board ruled that notwithstanding the current difficulties of the IJDB, where parties in their collective agreements have agreed to utilize the IJDB and the plan for the settlement of jurisdictional disputes, section 91(14) prohibits this Board from inquiring into the matter. It is perhaps noteworthy that the current IBEW provincial agreement containing the requirement that jurisdictional disputes be dealt with according to the plan for the settlement of jurisdictional disputes was entered into on May 5, 1982, subsequent to the Board's decision in the Ontario Hydro case.

6. At the hearing on June 6, 1983, counsel for the IBEW contended that article 509 of the IBEW provincial agreement and the Board's reasoning in the Ontario Hydro and Stoney Creek Mechanical cases are not applicable to these proceedings in that Webb has no formal bargaining relationship with the IBEW and accordingly is not bound by the provincial agreement. Counsel acknowledged that a subsidiary of Webb's, Spider Installations Ltd. ("Spider") is bound to the provincial agreement, but contended that this fact was of no relevance to these proceedings. Counsel for Webb and the other two unions indicated that they were caught by surprise by the contention that Webb was not bound by the provincial agreement. Counsel for Webb requested an adjournment to allow him to inquire into the possible existence of a formal bargaining relationship between Webb and the IBEW. Counsel further indicated that if there was no such formal bargaining relationship, he intended to lead evidence to demonstrate that Webb and Spider are under common direction and control and that pursuant to section 1(4) of the Act the Board should treat them as a single employer and conclude that Webb is in fact bound to the provincial agreement. Both the millwrights and the ironworkers unions agreed that this was an appropriate case in which to apply section 1(4). Section 1(4) reads as follows:

"Where, in the opinion of the Board, associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions concerned, treat the corporations, individuals, firms, syndicates or associations or any combination thereof as constituting one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate."

7. When the matter came back for hearing, counsel for Webb agreed with the IBEW's contention that the company had no formal bargaining relationship with the union and, accordingly, indicated that Webb would be relying on the provisions of section 1(4). At that point, counsel for the IBEW objected to the Board even considering the possible application of section 1(4) on the grounds that the section makes no reference to an application being made under the section by an employer. Counsel contended that the purpose of the section is only to assist trade unions. The Board orally rejected this contention. Section 1(4) states that an application can be made under the section by "any person, trade union or council of trade unions concerned". If the Legislature had desired to limit applications under the section only to trade unions, it would not have also made provision for an application to be made by "any person". By virtue of the Interpretation Act, a "person" can include a "corporation" or other similar legal entity which can act in the capacity of an employer. Accordingly, we are satisfied that Webb, being a corporation and thus, at law, a "person" is entitled to bring an application under section 1(4). We would note that a similar conclusion was reached by the Board in both Bright Veal Meat Packers Ltd. [1981] OLRB Rep. March 247 and Harwill Originals Limited [1982] OLRB Rep. June 875.

8. Webb is the subsidiary of a large American based firm which designs, manufactures and installs custom engineered conveying systems. Webb, which began its Canadian operations in 1948, is headquartered in the City of Hamilton. Frequently, the installation of Webb's conveyor systems also involves the installation of related electrical systems. Until 1968 Webb's general practice was to directly employ members of the IBEW to do this work while paying them the prevailing union rate. In those cases where Webb for one reason or another felt it could not perform the work, it sub-let the work to unionized electrical contractors. In short, Webb acted as if it was a unionized firm. Notwithstanding this fact, Webb and the IBEW never formally entered into a collective agreement or any form of recognition agreement.

9. In 1968 Webb applied to join the Electrical Contractors Association of Ontario, an employer trade association which bargained on behalf of its members with the IBEW. Presumably Webb felt that such a move would provide it with some input into the bargaining process. The Electrical Contractors Association, however, made it clear that they were not happy with the prospect of taking a manufacturer such as Webb into membership, but indicated that they would take into membership a subsidiary set up by Webb to perform electrical work. In consequence of this, Webb set up Spider to perform its electrical installation work and Spider was taken into membership by the Electrical Contractors Association. Spider's status as a member of the Electrical Contractors Association was presumably the basis for the Board naming Spider as a firm for which the IBEW had bargaining rights in an accreditation certificate dated September 10, 1975.

10. Apart from four individuals who each own one share, all of the shares of Spider are owned by Webb. The directors of Webb also serve as directors of Spider. The president, secretary, treasurer and controller of Webb all hold the same position with respect to Spider. Mr. R. Rumsey, a vice-president of Webb, is the general manager of both companies and is responsible for Spider's day-to-day operations. Mr. Ian Simpson is responsible for the technical operations of Spider, a function he also performs for Webb.

11. Both Webb and Spider operate out of the same building on Burlington Street in Hamilton. The building is owned by Webb, and the exterior signs display only the name and logo of Webb. Spider pays no rent for its use of the building. All of the tools, equipment and vehicles utilized by Spider are owned by Webb and are maintained by employees of Webb. Any electrical engineering work required by Spider is performed by a member of Webb's engineering staff. All office and clerical work required by Spider is performed by Webb employees.

12. Spider works only for Webb. It does not seek any work from outside contractors. Fully ninety per cent of the electrical work involved with Webb installations in Ontario is performed by Spider. The remaining ten per cent is contracted out to other unionized electrical contractors. When Spider performs work for Webb, the price for the work is simply taken off of the estimates. There are no negotiations about the price.

13. The instant case arises out of the installation by Webb of three conveyor systems at the Chrysler plant in Windsor. Certain electrical installation work on the project was allocated to Spider and to two other electrical contractors employing IBEW members. The work in question, which the IBEW describes as:

"the installation and relocation of limit switch actuators, the installation of conduct support brackets, the installation of secondary support angle iron,"

was apparently viewed by Webb as not being part of the electrical installation work and, accordingly, not part of the work given to either Spider or the other two electrical contractors. It is the contention of the IBEW that the ironworkers and millwrights who are performing the work are direct employees of Webb, and accordingly, it was against Webb that it filed the section 91 complaint seeking an award of the work.

14. It is clear on the evidence that Spider and Webb are in fact under common direction and control, and that since 1968 Spider has been performing work previously performed by

Webb. It is also apparent that Spider functions essentially as the electrical contracting division of Webb. It is of some interest that the IBEW has itself regarded Spider only as a division of Webb. Indeed, in a letter to Webb dated April 29, 1983, concerning the work now in dispute, Mr. Doug Ryan, the business manager of Local 773 of the IBEW, commented as follows:

"As mentioned in the minutes you have awarded the installation of the limit switch actuators and any additional adjustments requiring relocation of the actuators to a composite crew of Millrights and Ironworkers. I must once again inform you of my strong objection and again feel that your decision was based on the fact that because your electrical division Spider Electric will not be performing the electrical work on this project and due to the fact of your 50/50 arrangement with the Ironworkers/Millrights it is economically advantageous to keep the limit switch actuators in your own Mechanical package. I wish to once again bring to your attention that on both the Essex Engine (Ford Motor Project 1979-80) and the General Motors (Transmission Project 1979-80) your company awarded the installation of the Limit Switch actuators and there adjustment to the I.B.E.W. L.U. 773. This fact will be born out by your Mr. Jim Douglas and Mr. Charles Harrison of your electrical division Spider Electric."

(emphasis added)

15. On the evidence before us, we are satisfied that the statutory pre-conditions have been met for the Board to make a 1(4) declaration declaring Webb and Spider to be a single employer. The act, however, indicates that even where the statutory preconditions have been met, the Board retains a discretion not to make a section 1(4) declaration. The IBEW contends that this is the type of case where the Board should exercise its discretion and not make the declaration. This contention is based, in part, on the submission that Webb could have brought the application as long ago as 1968, and that the delay involved has simply become too great. Delay in bringing a section 1(4) application has in a number of cases been viewed by the Board as an appropriate basis for not granting a common employer declaration. These cases have generally involved situations where a union had accepted the existence of related union and non-union operations for a lengthy period of time before seeking by way of a 1(4) application to bind the non-union operation to a collective agreement with the union operation. However, delay will not always bar a union from bringing a section 1(4) application. For example, in the M. J. Guthrie Construction Limited case [1982] OLRB Rep. Sept. 1332, related union and non-union operations had existed side-by-side for some twenty years, but recently the employer had begun to transfer work traditionally performed by the union operation to the non-union one. The Board in that case applied section 1(4) so as to protect the union's bargaining rights from this new threat. In applying the same type of reasoning to the relationship between Webb and Spider, it is perhaps safe to assume that had Webb recently begun to contract out work to a non-union electrical contractor, or to directly hire non-union electricians and employ them without regard to the terms of the provincial agreement, notwithstanding the passage of time since 1968, the Board would have been prepared to protect the union's bargaining rights by finding Webb and Spider to be a single employer and by declaring Webb to be bound to the provincial agreement. In the instant case, it was only during these proceedings that the IBEW for the first time contended that it viewed Webb and Spider as being other than an integrated unionized enterprise. Webb immediately responded to the IBEW's contention by requesting a declaration under section 1(4). In our view, the facts present here do not support a conclusion that there has been the type of delay that should result in a section 1(4) declaration not being given.

16. The IBEW contends that it would be inappropriate for the Board to make a section 1(4) declaration in that Webb has been building control panels in its shop without employing members of the IBEW. The union does not contend that Webb's shop employees would fall under the provincial agreement, but instead notes that Webb could have signed a "shop agreement" to cover the employees involved. Mr. Rumsey, the general manager of Webb, acknowledged that Webb does construct control panels in its shop in Hamilton using non-IBEW members. Mr. Rumsey testified that at one point in time the IBEW considered organizing the plant employees, but decided against it because there were only four of them. Mr. Rumsey stated that on certain projects the IBEW insisted that the control panels be built "in the field", in consequence of which field shops employing IBEW members were set up to make the panels. There is no dispute but that on the Chrysler project, IBEW members have been installing panels built by non-IBEW employees of Webb. There is nothing in the evidence to indicate that the IBEW had raised any objection to its members installing the panels.

17. The IBEW's position concerning the panels was explained by Mr. Ryan, Local 773's business manager. Mr. Ryan testified that in the Windsor area there are several shops which make electrical control boxes signed to agreements with Local 773. According to Mr. Ryan, if Webb employees (as opposed to employees of Spider) had been installing the panels, he would have insisted that Webb sign a shop agreement. Mr. Ryan indicated that he felt he would have been within his rights to insist that Webb sign such an agreement because of the sub-contracting clause in the provincial agreement. (It might be noted that counsel for Webb indicated that he did not agree with Mr. Ryan's interpretation of the relevant sub-contracting clause, and also queried how Mr. Ryan's local in the Windsor area could insist that Webb sign a collective agreement covering non-construction employees in Hamilton.) In his final submissions, counsel for the IBEW contended that the only reason Webb had not been required to sign a shop agreement for its panel manufacturing operation was because Spider employees had been installing the panels. Accordingly, he contended, Webb is now estopped from claiming to be bound by the IBEW provincial agreement.

18. We do not feel that the shop issue is one which would justify not granting a section 1(4) declaration. The shop employees of Webb do not, and would not, fall under the provincial agreement. Accordingly, the shop employees would not be directly affected by any section 1(4) declaration. As for the claimed estoppel, there appears not to have been either any holding out on the part of Webb or the type of detrimental reliance on the part of the IBEW that is necessary for the principle of estoppel to apply. If as a result of a 1(4) declaration the IBEW feels its position will be improved vis-a-vis Webb's shop employees in Hamilton, that is a matter that the union can follow up on. In the circumstances, however, we do not view it as a basis for refusing to make the requested 1(4) declaration.

19. We are satisfied this is an appropriate case in which to grant the requested 1(4) declaration. Spider and Webb are engaged in a single integrated operation in which Spider operates essentially as a division of Webb. Prior to 1968 Webb employed IBEW members directly, and since that date it has employed IBEW members through Spider. Any electrical work required to be contracted out has been contracted out by Webb to IBEW contractors. In these circumstances, the IBEW' s claim that Webb is somehow distinct from Spider rings hollow. In our view, a 1(4) declaration would serve to bring the "form" of the relationship between Webb and the IBEW into conformity with the existing reality.

20. Having regard to the above, the Board is of the opinion that the preconditions for the application of section 1(4) have been made out, and accordingly, the Board will treat Spider and Webb as constituting one employer for the purposes of the Act. The Board further declares that Webb is bound by the terms of the IBEW provincial agreement. In these circumstances, the Board is satisfied that in accordance with section 91(14) of the Labour Relations Act the jurisdictional dispute in issue is not one that should be dealt with by this Board, but rather, it should be dealt with in accordance with article 509 of the IBEW provincial agreement.

21. The complaint is accordingly dismissed.