[1988] OLRB Rep. February 141
2445-86-R; 0942-87-U United Brotherhood of Carpenters & Joiners of America, Local Union 27, Applicant v. F. T. Construction Inc., Respondent; United Brotherhood of Carpenters and Joiners of America, Local 27, Complainant v. Labourers' International Union of North America, Local 183 and F. T. Construction Inc., Respondents
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members D. A. MacDonald and C. A. Ballentine.
APPEARANCES: David A. McKee and Joe Almeida for the applicant/complainant; L. A. Richmond, Q. Ceolin and A. Pinto for Labourers' Local 183; Fernando Oliveira for F. T. Construction Inc., respondents.
DECISION OF THE BOARD; February 16, 1988
1Board File No. 2445-86-R is an application for certification. By decision dated December 19, 1986, pursuant to section 144(2) of the Labour Relations Act, the Board issued two certificates to the applicant United Brotherhood of Carpenters and Joiners of America, Local Union 27 ("Local 27"): one on its own behalf and on behalf of all other affiliated bargaining agents of its employee bargaining agency in respect of all carpenters and carpenters' apprentices in the employ of F. T. Construction Inc., in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman, and another to Local 27 in respect of all carpenters and carpenters' apprentices in the employ of F. T. Construction Inc., in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial, and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman. By letter from counsel dated June 3, 1987, the intervener, Labourers' International Union of North America, Local 183 ("Local 183") asserted that it had just discovered that the Board had issued those certificates and requested reconsideration of the Board's decision with respect thereto on the basis that, in December 1986, it had a collective agreement with F. T. Construction Inc., and, accordingly, ought to have been given notice of the application and an opportunity to participate therein. Local 27 opposed this request on the basis that Local 183 did not hold the bargaining rights asserted and also filed a complaint under section 89 of the Act (Board File No. 0942-87-U) in which it sought a declaration that Local 183 holds no bargaining rights with respect to F. T. Construction Inc., on the basis that the agreement on which Local 183 relies is void due to employer support, and that Local 183 had, in any event, abandoned any such bargaining rights.
2Fernando Oliveira is a principal of F. T. Construction Inc., ("F.T."). From July 1979 to sometime in 1985, Mr. Oliveira carried on business as a sole proprietor under the name of Minho Carpentry ("Minho"). On June 29, 1983, Minho and Local 183 entered into a collective agreement effective from January 4, 1983 to April 30, 1985. At the time they did so, Minho was a sub-subcontractor on a housing project which Philmor Developments Limited and Mor-Alice Construction Limited ("Philmor") together, as some sort of partnership or joint venture, was the general contractor. Local 183 had a collective bargaining relationship with Philmor and was in a legal strike position with respect to that employer pursuant to which it established a picket line at the project on June 29, 1983.
3The picket line effectively shut down the project and, within a matter of hours, Local 183 had obtained a commitment from Philmor that it would sign a new collective agreement. It was also agreed between them that all employees on the project would have to be members of Local 183, regardless of who actually employed them. Notwithstanding that no collective agreement had yet been executed (and none was until August 8, 1983), Philmor indicated to Local 183 that the latter could go onto the project for the purpose of signing all employees on the project into membership. Apparently, Philmor also advised its sub-contractors, of which one was Investments Carpentry which had in turn subcontracted work to Minho, of this. The principal of Investments Carpentry, Nick DeGiorgio, called a number of the persons working on the project, including Mr. Oliveira and the two persons the latter employed at the time, to a meeting at one of the uncompleted houses at the project. Mr. DeGiorgio told those so assembled that they had to become members of Local 183 in order to continue to work on the project. Although Mr. Oliveira's testimony was less than clear on the point, we are satisfied that Mr. DeGiorgio explained that Philmor was obligated to use only Local 183 sub-contractors and employees and that, as a result, so was Investments Carpentry. There was, however, no specific mention of a sub-contracting provision. A short time later, on the same day, a number of Local 183 business agents appeared and asked Mr. Oliveira and his two employees to become members of Local 183. All three signed applications for membership and paid $1.00 in respect thereof, in each others presence. Still later that same day, Mr. Oliveira executed the aforesaid collective agreement with Local 183 on behalf of Minho. Mr. Oliveira testified that he signed because "Investments said I had to".
4Subsequently, Mr. Oliveira caused F. T. to be incorporated on September 16, 1985 and ceased to operate as Minho. In September of 1985, F. T. was engaged at a job site in Mississauga as a subcontractor for Mattamy Homes. In October 1985, Local 183 discovered Mr. Oliveira working on that job site. One of Local 183's business agents approached Mr. Oliveira who advised him that he was operating as F. T., not as Minho. When asked to sign a collective agreement to F. T., Mr. Oliveira refused and Local 183 established a picket line to persuade him to do so. In the circumstances, Mr. Oliveira felt compelled to capitulate and on November 20, 1985, F. T. entered into a collective agreement with Local 183.
5At the time that Mr. Oliveira and his two employees signed Local 183 membership cards, there was no collective agreement in effect between Local 183 and any of Philmor, Investments Carpentry, or Minho. Accordingly, the validity or effect of a sub-contract clause is not in issue. Nor did there exist a kind of situation contemplated by either section 46(1)(a) of the Labour Relations Act or approved by the Board in Nicholls-Radke, [1982] OLRB Rep. July 1028. Minho (which had no legal existence separate from Mr. Oliveira) and its two employees were told, by the employer which had brought Minho onto the job site, that, if they wanted to continue working on the site, they would have to become members of Local 183. Later that same day, a number of Local 183 business agents descended upon the job site. In the course of a flurry of signing activity, the two Minho employees signed Local 183 membership cards, in the presence of their direct employer who also signed. It is clear that Philmor, Investments Carpentry and Minho all assisted Local 183 by effectively and improperly compelling the employees of Minho to become members of Local 183. Further the collective agreement between Local 183 and Minho was not freely entered into. It was a direct result of coercion by Philmor and Investments Carpentry.
6It is fundamental to the Labour Relations Act that there be an arms length relationship between trade unions and employers and that every person be free to join or not join any given trade union. We are satisfied that the actions of the employers as aforesaid have violated those fundamental principles and constitute improper "other support" to Local 183 within the meaning of clause (a) of section 48 of the Act. Accordingly, the agreement between Local 183 and Minho must be deemed not to be a collective agreement for purposes of the Act.
7No declarations under either sections 1(4) or 63 of the Act have been made (or sought) with respect to Minho and F. T. Nevertheless, Local 183 asserted, in its Reply, that the two were either one employer for purposes of the Act, or F. T. is a successor employer to Minho, and the case was argued on that basis. There was no suggestion that the validity of the collective agreement between Local 183 and F. T. was anything other than dependent upon the one said to exist between Local 183 and Minho. The mere fact that the second agreement was entered into does not, in our view, cure the improprieties that led to the first. Consequently, just as the first fell, so must the second. Accordingly, pursuant to clause (a) of section 48 the agreement between Local 183 and F. T. must also be deemed not to be a collective agreement for purposes of the Act. Indeed, absent the foundation of a collective agreement with Minho, the activity of Local 183 which led to an agreement with F. T. constitutes a recognition strike which constitutes a breach of the Act and would lead to the same result (see Traugott Construction Limited, [1981] OLRB Rep. Nov. 1680; request for reconsideration denied at [1982] OLRB Rep. June 958; application for judicial review dismissed at 1984 CanLII 2011 (ON HCJ), 45 O.R. (2d) 129 (Div. Ct.)).
8In the result, the Board declares that Labourers' International Union of North America, Local 183 holds no bargaining rights with respect to either Minho Carpentry or F. T. Construction Inc. Nor, in the Board's view, is it appropriate to revoke or in anyway vary its decision dated December 19, 1986 in Board File 2445-86-R and the same is hereby affirmed.