[1984] OLRB Rep. June 795
0299-84-R Labourers' International Union of North America, Local 506, Applicant, v. Carswell & Norton Limited, Respondent
BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. Kobryn and I. Stamp.
APPEARANCES: Linda Rothstein, Tony Neil and Mike Mihalovic for the applicant, David P. Cars well for the respondent.
DECISION OF THE BOARD; June 13, 1984
The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on September 6, 1978, the designated employee bargaining agency is The Labourers' International Union of North America and The Labourers' International Union of North America Ontario Provincial District Council.
The respondent requested a hearing of this application for certification and stated in paragraph 13:
Carswell & Norton Limited is a corporation licensed to practise professional engineering in the Province of Ontario. We are not a contracting firm. As an agent of the Owner, we do not consider ourselves as an employer in the definition of the Labour Relations Act.
On the date of the filing of this application the respondent employed two construction labourers. The respondent acts as an agent on behalf of an owner-client. Ninety-eight per cent of the work on the project in the City of Toronto is contracted out to other employers. The respondent administers and co-ordinates the work on the project and has hired the two labourers to maintain safety on the project — such as building fences and guards. In addition, the two construction labourers have done backfill work and finished concrete. This is the first time that the respondent has engaged in such activities. The present project commenced some thirteen months ago. The primary purpose of the respondent is to engage in professional engineering and not general contracting.
The two construction labourers receive paycheques from the respondent and deductions are made on behalf of Revenue Canada. Supplementary benefits under the provincial collective agreement have been remitted by the respondent in its own name. The two construction labourers' day-to-day activities are directed and supervised by the respondent. Layoffs and hiring back have been made at the instance of the respondent. The two construction labourers have been performing the work of construction labourers in the construction industry as defined in section 1(1)(f) of the Labour Relations Act and perceive the respondent to be their employer. The respondent agrees that it is the employer and hired the two construction labourers for their skills.
The evidence establishes that the respondent has been engaged for more than a year in performing work within the construction industry — albeit on a small scale — on a project in the City of Toronto. The Board has on many occasions considered employers such as the respondent in relation to the definition of employer in section 117(c) which states:
"employer" means a person who operates a business in the construction industry, and for purposes of an application for accreditation means an employer for whose employees a trade union or council of trade unions affected by the application has bargaining rights in a particular geographic area and sector or areas or sectors or parts thereof.
In The Municipality of Metropolitan Toronto, [1980] OLRB Rep. Jan. 62 at pages 70-71, the Board stated:
The Board has previously considered the meaning to be given to section 106(c) [now section 117(c)] of the Act. In the Tops Marina Motor Hotel case, 64 CLLC ¶ 16,004, a registered partnership consisting of an investor, a salesman, a lawyer and a builder was formed for the purpose of building and operating a motor hotel. This was the first venture of the partnership. The Board found that the work which was being performed fell within the definition of construction industry in section 1(1 )(da) [now section l(l)(f)] of the Act and that the partnership was the employer of the carpenters who were affected by the application. The Board rejected a contention that in order to operate a business in the construction industry the construction work must be for persons other than those engaged in the work and stated that it was not disposed to place such a general restriction on the word "business". The Board also considered whether the primary or predominant purpose of the operation ought to be the test under section 90(a) [now expressed in section 117(c)] of the Act and stated at page 645:
"This brings the Board to counsel's second argument that the primary or predominant purpose of the operation ought to be the test. The legislation does not use this language, and if that had been the intention of the Legislature, it would have been a simple matter to have said 'employer means a person who operates a business primarily in the construction industry' or some similar wording. Furthermore, it seems to the Board that an employer whose primary business is that of manufacturing but who in addition to selling his products to others, operates a construction division for the purpose of erecting his product at a construction work site, would be excluded automatically from the definition if the test suggested by counsel were to be adopted. Again, the Board is not disposed at the present time to place such a general restriction on the word 'business' as it appears in the section.
There remains for consideration, however, the question as to whether the respondent is operating a business in the construction industry. As has already been noted, the respondent's sole activity at the present time is that of constructing a building. In that sense therefore, its present and sole 'profession', 'trade', 'employment', 'engagement', or 'occupation' (to take some of the meanings of the word 'business') is construction work. However, assuming the present intentions of the partnership are carried through to fulfilment, the partnership will then be engaged in the operation of a motor hotel and in the construction of a second motor hotel. If this turns out to be the case, then in the Board's view the respondent's 'profession', 'trade', 'employment', 'engagement', or 'occupation' is that of building and operating motor hotels. While it may be that in the long run the respondent will be occupied more with operation than with building, the construction activity is an important and concrete part of its objects. Thus it appears to the Board that whether attention is focused only on the respondent's present activity or on its present activities and future plans, the respondent is operating a business, perhaps not its main business, but nevertheless a business in the construction industry within the meaning of The Labour Relations Act."
- In the instant application the respondent, far from being engaged intermittently in undertaking the work which is being performed by the temporary carpenters, is regularly and continuously engaged in such work. Moreover, while the dollar volume of such work is small in comparison to the construction work which is performed on a tender basis, the dollar volume of such work performed by the carpenters exceeds the dollar volume of many employers who work solely in the construction industry. In addition, the respondent employs more trades than many employers in the construction industry. As the Board stated in the Tops Marina Motor Hotel case, supra, it is not necessary that the business of an employer in the construction industry is the predominant or primary business. The soundness of that position has become clear over the years when the Board considers the number of large construction projects which have been accomplished by owner-builders and developers. In addition, as the Board stated in the Kapuskasing Board of Education case, 72 CLLC ¶ 16,057, there is no requirement that in order to operate a business an operator of such business must necessarily carry on such venture with a view to making a profit. See also Canada Labour Relations Board et at. v. City of Yellowknife, 1977 CanLII 230 (SCC), 76 D.L.R. (3d) 85. Similarly, in The Board of Trustees of the Roman Catholic Separate Schools for the City of Windsor case, [1966] OLRB Rep. March 920, this Board, in a proceeding under section 47a [now section 63(1)] of the Act, stated at page 922:
"In the instant case, the term 'business' should be given that interpretation most consistent with the other provisions of The Labour Relations Act and which will best effect the purposes of that section of the Act in which the term appears. It should be borne in mind that the Act does not distinguish between public and private business, and contemplates the existence of bargaining rights held by trade unions with respect to 'employers' generally and not simply those engaged in commercial enterprises. Nothing in the Act would suggest that any limitation on the continuance of these bargaining rights should be imposed by virtue of the non-commercial nature of any employer's 'business'. The term 'business' as it appears in The Labour Relations Act, therefore, ought not to be qualified by the addition of the adjective 'commercial', but should rather be read as referring generally to the undertaking of any employer whose operations are subject to this Act."