[1984] OLRB Rep. May 715
1449-83-R Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen and International Union of Bricklayers and Allied Craftsmen, Local 2, Applicant, v. David Yan & Partner of Canada Limited and David Van Construction Ltd., Respondents
BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. Kobryn and R. Swenor.
APPEARANCES: B. Fishbein, J. Robbins and J. Zanussi for the applicant; Stanly D. Goldberg, Michael Granat and David Yan for the respondents.
DECISION OF THE BOARD; May 28, 1984
The name of one of the respondents appearing in the style of cause as David Yan Construction Limited" is amended to read: 'David Yan Construction Ltd.".
The applicant has applied to the Board under section 63 of the Labour Relations Act with respect to the bargaining rights of the applicant as a result of an alleged sale of a business by David Yan & Partner of Canada Limited to David Yan Construction Ltd. In the alternative, the applicant has alleged that the respondents should be treated as constituting one employer for the purposes of the Act in that, at all material times, they were carrying on associated or related activities or businesses under common control or direction within the meaning of section 1(4) of the Act.
It is the position of the applicant that David Yan Construction Ltd. or the respondents as one employer by virtue of section 1(4) of the Act, are bound by the provincial collective agreement between the International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen and the Masonry Employers' Council, effective from May 1, 1982, until April 30, 1984.
It is the position of David Yan Construction Ltd. ("Yan") that it is not bound by any collective agreement with the applicant and it further denies that the applicant has any bargaining rights (or ever had any bargaining rights) for employees of Yan. In the alternative, if it is found that bargaining rights once existed, it is the position of Yan that such bargaining rights have long since been abandoned. In the further alternative, Yan denies that it is or ever was carrying on associated or related activities or businesses under common control and direction within the meaning of section 1(4) with David Yan & Partner of Canada Limited. ("Yan & Partner"). In the further alternative, it was the position of Yan that should the Board find that the respondents carried on associated or related activities or businesses under common control and direction within the meaning of section 1(4), then the Board ought not to make any such declaration because of the failure of the applicant to bring this application in a timely fashion. The respondents also adopted the position that there had not been a sale of a business under section 63 and that, in the alternative, even if a sale had taken place, the Board ought not to make a declaration under section 63 because of the delay involved in bringing this application.
The initial issue before the Board in this matter was the assertion by the applicant and the denial by Yan & Partner that the latter was bound by a collective agreement with the applicant. The first contact between Mr. Zanussi, a business agent of the applicant, and Yan & Partner arose as a result of Mr. Zanussi becoming aware in about 1975 of masonry work being performed on a job in the City of Toronto. After making enquiries, he ascertained that the general contractor on the job and the masonry contractor were not bound by collective agreements with the applicant. He arranged to meet a person whom he believed to be David Yan in 1975, and asked that person if Yan & Partner would consider signing a collective agreement with the applicant. The person believed to be Mr. David Yan said he would think it over and nothing more was heard on the matter.
In August, 1975, Yan & Partner sent an application for membership in the Toronto
Construction Association together with a cheque in the amount of one hundred dollars. The application is neither dated nor signed. However, the cheque is signed and was received by the Toronto Construction Association. In a letter dated August 27, 1975, the director of labour relations of the General Contractors Section of the Toronto Construction Association wrote to Yan & Partner acknowledging receipt of its application and cheque regarding membership in the Toronto Construction Association General Contractors Section. The letter advised that the application for membership had been accepted and that the Building Trades Council of Toronto had been notified accordingly. According to the terms of the letter, Yan & Partner received at that time the 1975-76 membership directory and a copy of each of the Toronto Construction Association General Contractors Section's collective agreements with six trade unions, including the applicant. The letter invited Yan & Partner to take ten minutes out of their busy schedule to drop in at the Construction Centre for an informal discussion to cover the services offered and to ensure that they were getting full value for their dues.
On May 24, 1976, the General Contractors Section of the Toronto Construction Association and the applicant entered into a collective agreement. Attached to the collective agreement and bound by the collective agreement is a list of members of the General Contractors Section of the Toronto Construction Association. On that list is included the name of Yan & Partner. Paragraph three of the collective agreement states: "The attached list of Employers constitutes the General Contractors Section of the Toronto Construction Association".
Subsequent collective agreements were entered into which referred to Yan & Partner in a list attached to the collective agreements as members and former members. In a letter dated January 28, 1976, Yan & Partner notified the Toronto Construction Association of its change of address and in a letter dated January 20, 1978, Yan & Partner notified the chairman of the General Contractors Section of the Toronto Construction Association that Yan & Partner had decided to resign its membership effective January 1, 1978.
The Board finds from the evidence before it that resignation of Yan & Partner was never communicated to the applicant, either by the General Contractors Section of the Toronto Construction Association or by Yan & Partner.
By virtue of the provisions of section 5 1(1) of the Act any collective agreement between the General Contractors Sector of the Toronto Construction Association (the "Association") and the applicant is binding upon the Association and each person who was a member of the Association at the time the collective agreement was entered into and on whose behalf the Association bargained with the applicant as if it was made between each of such persons and the applicant. If such person ceases to be a member of the Association during the term of operation of the collective agreement, he shall, for the remainder of the term of the operation of the collective agreement, be deemed to be a party to a like agreement with the applicant. Section 51(2) provides for a duty of disclosure when the Association commences to bargain with the applicant. It is required to deliver to the applicant a list of the names of the employees on whose behalf it is bargaining and, in default of so doing, it shall be deemed to bargain for all members of the Association for whose employees the applicant is entitled to bargain and to make a collective agreement at that time, except an employer who, either by himself or through the Association, has notified a trade union in writing before the collective agreement was entered into that it would not be bound by a collective agreement between the Association and the trade union.
In Great Lakes Fabricating, [1982] OLRB Rep. June 872 and in Baker Gurney & McLaren Ltd., [1976] OLRB Rep. March 78, the Board considered similar situations where an employer had joined an employers' organization which was bargaining with various trade unions. In those cases employers had joined employers' organizations. In Baker Gurney & McLaren Ltd., sup ra, the Board found that by joining an employers' organization and authorizing it to sign a collective agreement on its behalf an employer had through its agent voluntarily recognized the trade union as the exclusive bargaining agent for certain of its employees. In Great Lakes Fabricating, supra, the Board found that pursuant to the provisions of a by-law, an employers' organization was enabled to bargain on behalf of an employer who had become a member of the employers' organization. In the instant case, the constitution of the Association provides that its objects are, inter alia, to represent members and to enter into agreements respecting wages and all other matters as may appear to be in the best interest of the construction industry. The constitution of the Association also provides for the negotiation of agreements, for signing them and for ratification.
Yan & Partner became bound by a collective agreement with the applicant because it joined the Association which subsequently entered into a collective agreement on its behalf. By this process, bargaining rights arose as a result of voluntary recognition of the applicant by Yan & Partner. Thereafter, successive collective agreements were entered into which were binding on the applicant and Yan & Partner by virtue of the provisions of section 51 and the lack of any notice of any change in circumstances to the applicant.
It appears clear that the Toronto Construction Association accepted the application for membership and the failure of Yan & Partner to actually sign and date the application is not determinative. The application was accompanied by a signed cheque and was accepted by the Toronto Construction Association. Thereafter, as evidenced by the notification of change of address, Yan & Partner clearly intended to join the Toronto Construction Association and behaved until January of 1978, as if it was a member of the Toronto Construction Association. Yan & Partner argued that there was no evidence that Yan & Partner had seen the constitution or had seen the collective agreements referred to in the letter of August 27, 1975. Yan & Partner also pointed out that there was no evidence that Yan & Partner had ever lived up to the collective agreement and referred to section 16 of the constitution that applications for membership shall be signed by the applicant.
The fact that the evidence is not as complete as might be desired is, in large part, due to the fact that David Yan, who was present at the hearing, did not give evidence before the Board. There was no evidence before the Board from Yan & Partner about the constitution. Clearly the Association was satisfied and accepted Yan & Partner into membership. On the balance of probabilities the Board is satisfied that Yan & Partner was aware of the significance of becoming members of the Association. In these circumstances, the Board is denied the opportunity to examine evidence of Mr. Yan with respect to the dispute over bargaining rights in this application. Similarly, there is no evidence before the Board as to whether Yan & Partner did or did not employ employees under the various collective agreements through the Association. Yan & Partner may, of course, have employed persons under the various collective agreements unknown to the Association or the various trade unions. There is no way of knowing on the evidence before the Board. Similarly, the fact that an employer may disregard a collective agreement and remain undetected is not, of course, a ground for finding that a trade union does not have bargaining rights or that bargaining rights have been abandoned. Yan & Partner became bound by a series of collective agreements and in 1978, by virtue of the provisions of sections 145(3) and 147(2) of the Act, became bound by the first and subsequent collective agreements in the industrial, commercial and institutional sector of the construction industry.
The Board accordingly finds that the applicant and Yan & Partner are bound by the current industrial, commercial and institutional collective agreement and the Registrar is directed to list this matter for continuation of hearing.