Ontario Labour Relations Board
Citation: United Brotherhood of Carpenters and Joiners of America, Local 1190 v. Karl Thier Construction Limited and Penka Carpentry Limited, 1985 CanLII 973 Date: May 2, 1985 File No.: 2133-84-R
Between: United Brotherhood of Carpenters and Joiners of America, Local 1190, Applicant and Karl Thier Construction Limited and Penka Carpentry Limited, Respondents
Before: N. B. Satterfield, Vice-Chairman, and Board Members F. W. Murray and C. A. Ballentine.
Appearances: David McKee and Tony Iannuzzi for the applicant Alex Zankl for the respondent Penka Carpentry Limited Karl Thier for the respondent Karl Thier Construction Limited
DECISION OF THE BOARD
This is an application under section 1(4) of the Labour Relations Act in which the applicant has requested that the Board treat Karl Thier Construction Limited and Penka Carpentry Limited as one employer for the purposes of the Act. For ease of reference, Karl Thier Construction Limited will be referred to as (KTC) and Penka Carpentry Limited will be referred to as (Penka).
The findings of fact set out in this decision are from the evidence of Karl Thier and Alex Zankl who testified on behalf of the respondents. No one testified on behalf of the applicant.
KTC was incorporated in 1973. KTC is owned by Thier. He and his wife are the only directors and officers. Thier runs the business and his wife keeps KTC's books. KTC carries on business as a house framing contractor and, prior to becoming incorporated, it operated as an unincorporated business in the name of Karl Thier Construction. For approximately nine years, until February, 1984, KTC's house framing work came almost exclusively from Bramalea Limited (Bramalea). Prior to performing house framing construction under contract from Bramalea, KTC and its unincorporated predecessor had performed similar work under contract from George Wimpey Limited. During the latter part of 1960, Karl Thier Construction had done some work for a house contracting company owned by Zanki and during approximately the two years proceeding this application, Zankl had done some house framing for KTC. With those exceptions, neither Thier nor Zanki had done business together to any significant degree. Zankl is Thier's uncle.
In December, 1982, KTC became bound to a collective agreement with the applicant and currently is bound to a collective agreement which expires April 30, 1985.
After February, 1984, KTC ceased getting contracts for house framing construction from Bramalea. Thier believes that this state of affairs resulted from Bramalea coming under a collective bargaining obligation to sub-contract work only to contractors who were in a collective bargaining relationship with a particular trade union. That union was not the applicant.
When Thier approached Zankl with the news that KTC was no longer able to get contracts from Bramalca, Zankl agreed to form a company for the purpose of obtaining jobs from Bramalea on condition that Thier would run any jobs obtained for the new company. Zanki was semi-retired at the time from his own house building business and was not interested in running a new business full time and if Thier was not available to do what was necessary to run jobs, Zankl would not carry on the new business. Penka was formed on April 26, 1984 with Zanld as the sole owner.
Penka was invited subsequently to take on a contract from Bramalca for work to be done at a stated price per square foot. Thier advised Zankl that the work described in the contract could not be done at that price and he worked out for Zanki a price at which he thought the work could be done profitably. Zanld accepted that advice, made a counter proposal to Bramalea which was accepted. Thier did Penka's hiring, decided who would get piece work sub-contracts and provided the day by day supervision of the work. Two of the persons whom he hired for Penka had previously worked for KTC. Thier also operated on Penka's projects a fork truck which was owned by KTC. Thier was being paid approximately one thousand dollars per month by Penka but it is clear from his evidence that he would not receive that much if the margin left over after Penka had satisfied its expenses was less than that amount. It was also agreed between Zanki and Thier that they would share equally in any profit remaining after completing the contract.
Section 1(4) of the Act provides 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.
It may been seen from the wording of the section that there are three conditions which must be met before the section has application. These are:
(1) there must be more than one corporation, firm, syndicate, association or individual;
(2) those entities must be under common control or direction; and,
(3) they must be engaged in associated or related businesses or activities.
The first condition is easily met on the facts of this case since there are two corporate entities:
Karl Thier Construction Limited and Penka Carpentry Limited. With respect to whether they are carrying on associated or related businesses or activities, the Board has described what constitutes related or associated businesses or activities in the following terms in its decision in Brant Erecting [1980] OLRB Rep. July 945, at paragraph 15:
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The relationship between the business entities is a functional rather than a temporal one. Businesses or activities are 'related' or 'associated' because they are of the same character, serve the same general market, employ the same mode and means of production