United Brotherhood of Carpenters and Joiners of America, Local Union 27 v. Square One Carpentry Inc., 1988 CanLII 3753

[1988] OLRB Rep. October 1112

1874-86-R; 2268-86-U; 3123-86-R; 0616-87-M United Brotherhood of Carpenters and Joiners of America, Local Union 27, Applicant v. Square One Carpentry Inc., Respondent; United Brotherhood of Carpenters and Joiners of America, Local 27, Complainant v. Labourers International Union of North America, Local 183 and Square One Carpentry Inc., Respondents; Labourers' International Union of North America, Local 183, Applicant v. Square One Carpentry and Square One Carpentry Inc., Respondents v. United Brotherhood of Carpenters and Joiners of America, Local 27, Intervener; Square One Carpentry Inc., Employer v. United Brotherhood of Carpenters and Joiners of America, Local 27, Trade Union v. Labourers' International Union of North America, Local 1~3, Trade Union

BEFORE: Ken Petryshen, Vice-Chair, and Board Members D. A. MacDonald and N. Wilson.

APPEARANCES: David A. McKee and Luis Camara for United Brotherhood of Carpenters and

Joiners of America, Local 27; L. A. Richmond and C. DeToni for Labourers' International Union

of North America, Local 183; Michele DiBiase and Carmine DiBiase for Square One Carpentry

Inc.

DECISION OF THE BOARD; October 2, 1988

1. The Board has before it a number of related matters. In a decision dated October 22,

1986 (Board File No. 1874-86-R), the Board certified the United Brotherhood of Carpenters and

Joiners of America, Local Union 27 ("Local 27") for all carpenters and carpenters' apprentices in

the employ of Square One Carpentry Inc. in the industrial, commercial and institutional sector of

the construction industry in the Province of Ontario and in all other sectors in Board Area #8,

save and except non-working foremen and persons above the rank of non-working foreman. Sub­sequent to the Board's decision certifying Local 27, the Labourers' International Union of North America, Local 183 ("Local 183") requested the Board to reconsider that decision and revoke Local 27's certificate on the grounds that it was a party to a collective agreement with Square One Carpentry Inc. covering carpenters and carpenters' apprentices which would bar Local 27's appli­cation and that it did not receive timely notice of Local 27's application for certification. Along with its reconsideration request, Local 183 alleges that the membership evidence filed by Local 27 in support of its application was obtained in a manner contrary to the Act and should not be given any weight by the Board. Board File No. 2268-86-U is a section 89 complaint in which Local 27 attacks the validity of the alleged collective agreement between Local 183 and Square One Carpen­try Inc. and seeks a declaration that the alleged collective agreement is null and void. Board File No. 3123-86-R consists of an application by Local 183 under subsection 1(4) and section 63 of the Act against Square One Carpentry and Square One Carpentry Inc. Board File No. 0616-87-M is a reference from the Minister of Labour pursuant to section 107 of the Act concerning the question of whether Local 27 has bargaining rights for the employees of Square One Carpentry Inc. and whether Local 27's request for conciliation is proper.

2. The above matters were consolidated and heard by a panel composed of Vice-Chair K. Petryshen and Board Members J. Redshaw and J. Wilson. Before the panel could issue a decision, Mr. Wilson passed away. Based on a joint submission from the parties, the Board proceeded with these matters on the following basis. The parties were given the opportunity to call additional evi­dence and on the basis of that evidence and the evidence heard previously, Vice-Chair Petryshen produced a statement of fact. That statement of fact was submitted by the parties to the present panel as an agreed statement of fact.

3. Hearing days were set to entertain additional evidence and the parties made submis­sions with respect to what the facts are based on the evidence heard. M. DiBiase gave evidence on behalf of Square One Carpentry and Square One Carpentry Inc. Local 183 called P. Baldassarra, L. Baldassarra, J. Morgado and L. Mendes to testify. Local 27 did not call any evidence. After considering all of the evidence and the parties' submissions relating thereto, Vice-Chair Petryshen found the facts to be as follows:

(1) Square One Carpentry was an entity which engaged in the business of house framing and was a partnership between M. DiBiase and R. Furlong. In September 1983, Square One Carpentry performed house framing work on a piecework basis pursuant to a subcontract with F.E.D. Construction Company ("F.E.D.") on a Greenpark Homes (the builder) site at Woodbridge, Ontario. Square One Car­pentry had worked as a subcontractor of F. E. D. on and off since 1980-81 and for most of 1983.

(2) Generally in 1983, there was little work for persons engaged in house framing. M. DiBiase believed that Greenpark Homes was one of the few builders constructing houses in 1983. The vast majority of F.E.D.'s work was performed by it as a contractor to Greenpark Homes. F.E.D. has a reputation of being one of the better contrac­tors. Greenpark Homes is a trade name and it is used under licence by various joint ventures. The principals of F.E.D. are involved in these joint ventures from time to time when house framing is done. They were part of the joint venture constructing the housing development at Woodbridge in 1983. Representatives of Local 183 were unaware of this joint arrangement.

(3) In September 1983, Greenpark Homes was bound to a collective agreement between Local 183 and the Toronto Housing Labour Bureau. This collective agreement was made an exhibit in these pro­ceedings. Attached and forming part of the collective agreement is the following Letter of Understanding:

LETITER OF UNDERSTANDING

Between:

Toronto Housing Labour Bureau

(the "Bureau")

- and -

Labourers' International Union of

North America, Local 183

(the "Union")

The Bureau and the Union agree that this Letter of Understanding forms part of the Collective Agreement between the Bureau and the Union dated the day of, 1983.

The Bureau and the Union agree that:

1. Article 1 .03(a)(iii) concerning the subcontracting of frame carpentry work shall be read subject to the following conditions:

2. a) No member employer of the Bureau will be required to break exist­ing carpentry sub-contracts by reason that the carpentry subcontrac­tor is not in contractual relations with the Union. This exemption will be effective up to December 31, 1983.

b) Within one (1) week of the signing hereof, each member employer agrees to provide the Union with a list of his exist­ing carpentry sub-contracts, the location of the projects and the number of units to be constructed.

c) Any new carpentry sub-contracts will be let only to carpen­ters who have agreements with the Union.

d) The Union recognizes that there must be sufficient carpentry contractors with agreements with the Union for the mainte­nance of competitive bidding and a productive environment failing which members of the Bureau will not be bound to use only carpentry contractors who have agreements with the Union.

DATED at this day of , 1983.

TORONTO HOUSING LABOURERS' INTERNATIONAL LABOUR BUREAU UNION OF NORTH AMERICA, LOCAL 183

(4) In September 1983, F.E.D. was party to a collective agreement with Local 183 which was entered into on July 15, 1983 (the Residential Housing Carpentry Agreement). The relevant provisions of this col­lective agreement are as follows:

ARTICLE 1- RECOGNITION

1.01 The Employer recognizes the Union as the sole and exclusive bargain­ing agent for all employees of the Employer as outlined in Schedule "A" of this agreement engaged in the preparation of footings, the fabrication and erection of all phases of housing, save and except those persons above the rank of foreman, office, clerical and engineering staff, while working in and out of Board Area No. 8, specified by the Ontario Labour Relations Board as follows:

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 Township of Esquesing, and the Towns of Ajax and Pickering in the Regional Municipality of Durham.

1.02 This agreement shall apply to all residential housing construction employees such as carpenters, their apprentices and helpers, while working on and including single and semi-detached houses, maisonettes and town­houses.

ARTICLE 2- UNION SECURITY AND CHECK OFF OF UNION DUES

2.01 All employees shall, when working in a position within the bargaining unit described in Article 1 hereof, be required, as a condition of employ­ment, to be a member of or apply for membership in the Union and obtain a clearance slip from the Union as follows:

a) Where an employee is hired on Monday, Tuesday or Wednesday of any week, he shall apply for membership in the Union and obtain a clearance slip from the Union by no later than the following Satur­day;

b) Where an employee is hired on Thursday or Friday of any week, he shall apply for membership in the Union and obtain a clearance slip from the Union by no later than the second Saturday following,

and shall be required to maintain such membership while working within the bargaining unit for the duration of this agreement. The Union agrees that it will not refuse membership to any person who applies.

2.05 All bargaining unit work normally performed by the classifications of employees listed in the attached Schedule "A" shall be performed only by members of the bargaining unit.

ARTICLE 14- SUBCONTRACFING OF WORK

14.01 The Employer agrees not to subcontract work coming within the juris­diction of this Collective Agreement to subcontractors other than those who are in contractual relations with the Union, Local 183.

14.02 The Union agrees that the Employer may continue the practice in effect immediately prior to the commencement of this Agreement, of utiliz­ing piece-workers to perform bargaining unit work, so long as the person concerned agrees, in which event the Employer shall comply with Article 6. of Schedule "A" of this agreement in regard to the remittances as outlined, for bargaining unit employees performing piece-work; or such other arrange­ments as are mutually agreeable to the parties.

SCHEDULE "A"

ARTICLE 1- HOURS OF WORK AND OVERTIME

1.01 a) The standard hours of work for all employees shall be based on forty-four (44) hours per week exclusive of travelling time to and from the job.

b) All overtime work performed in excess of nine (9) hours per day, Monday to Thursday and eight (8) hours on Friday, and all Saturday work, shall be paid at the rate of time and one-half the regular rate.

1.02 In the event of inclement weather during the regular working week, the Employer may perform work on Saturday at the regular wage rate.

ARTICLE 2- VACATION PAY

2.01 The Employer agrees to pay as vacation and holiday pay an amount equal to 8% (eight per cent) of gross wages earned, payable on or before the fifteenth day of July in each year; it being understood that 4% (four per cent) is in lieu of statutory holidays and 4% (four per cent) is in lieu of vaca­tion pay.

ARTICLE 3- MAINTENANCE OF EXISTING RATES

3.01 It is agreed that no employee covered by this Collective Agreement shall receive a reduction in his rate of wages through the introduction of this schedule.

ARTICLE 4- PAYMENT OF WAGES

4.01 Employees shall be paid weekly or bi-weekly maximum, by cheque or cash at the option of the Employer, no later than Thursday in any week, and the employees' pay shall be accompanied by a slip outlining all hours of work, overtime hours, deductions for income tax, unemployment insurance, pension, Ontario Health Insurance Plan (OHIP) etc., where applicable.

4.02 In the case of layoff, all men shall receive two hours' notice or two hours' pay in lieu thereof, in advance of the layoff.

4.03 Whenever Unemployment Insurance Separation Certificates and Ontario Health Insurance Plan Form 104 and pay cheques and vacation pay monies are not given to the employee at the time of termination, they shall be sent by the Employer to the employee by registered mail, to his last known address on file with the Employer, within seventy-two (72) hours of the time of termination.

ARTICLE S - TRAVELLING AND ROOM AND BOARD ALLOWANCES

5.01 Zone 1 is a free travel zone as outlined on pages 14 and 15.

Zone 2 - An employee required to work in Zone 2 shall receive a per diem payment of a sum equal to six dollars ($6.00) per day.

Zone 3 - An employee required to work in Zone 3 shall receive a per diem payment of a sum equal to eight dollars ($8.00) per day.

N.B. Travelling zones outlined on pages 15 and 16.

5.02 Whenever employees covered by this Agreement are required to be away from their normal place of residence overnight, the Employer agrees to pay twenty-five dollars ($25.00) per day, to a maximum of one hundred and twenty-five dollars ($125.00) per week, to cover room and board. Effective October 1, 1983, the Employer agrees to increase the daily allowance to thirty dollars ($30.00) per day, to a maximum of one hundred and fifty dol­lars ($150.00) per week, or alternatively, the Employer will provide at his own expense, suitable room and board accommodation for the employees.

ARTICLE 6- WELFARE PLAN AND REMITTANCES

6.01 Commencing June 1, 1983, the Employer agrees to pay the sum of 75~ (seventy-five cents) per hour based on 130 (one hundred and thirty) hours per month, into Local 183 Members' Benefit Fund, for the purpose of pur­chasing weekly indemnity, life insurance, major medical, dental care, Ontario Hospital Insurance Plan coverage, or similar benefits for the employees covered by this agreement, represented by Local 183.

6.02 The Employer shall pay remittances, as specified in this agreement, on behalf of its employees who have worked for the Employer more than six (6) days in the month.

6.03 In the event that the cost of providing O.H.I.P. coverage is increased during the term of this agreement, the Employer agrees that the remittances as outlined above will be increased accordingly, upon notification in writing by the Union as to the date such increase is effective.

6.04 The prime contractor or Employer shall be responsible before final pay­ment is made to any subcontractor that all remittances for welfare and union dues are up to date in payment, in accordance with the terms of this agreement, it being understood that the said subcontractor shall be required to provide a letter from the Union confirming that payments are made.

6.05 In the event the prime contractor or Employer makes final payment to any subcontractor and such subcontractor is delinquent in remittances as out­lined in this agreement, then the prime contractor or Employer shall be responsible for payment to the Welfare Fund or the Union for all outstand­ing monies owed.

6.06 The prime contractor or Employer shall advise its subcontractors in writing that final payment for work performed is being ~withheld pending receipt of a letter from the Union confirming that all remittances are paid in accordance with the terms of this agreement.

6.07 Payments into the Welfare Fund are to be made by the 15th day of the month following the month for which payment was made.

6.08 The parties hereto acknowledge that they are familiar with the contents of the Agreements and Declarations of Trust establishing the said Local 183 Members' Benefit Fund and they agree to be bound by the terms and condi­tions of the said Agreements and Declarations as if original parties thereto and as if the same formed part of this Collective Agreement. In the event any of the terms and conditions of the said Agreements and Declarations are in any way altered, added to or amended, then the parties to this Collective Agreement shall be bound by the same as if original parties thereto and as if the same formed part of this Collective Agreement. The Chairman of the Board of Trustees shall notify each contractor signatory to this Collective Agreement, by registered mail, of any amendments or alterations to the said Agreements and Declarations.

ARTICLE 7-STATUTORY HOLIDAYS

7.01 The following are recognized by the Employer as Statutory Holidays:

New Year's Day Civic Holiday Good Friday Labour Day Victoria Day Thanksgiving Day Dominion Day Christmas Day Boxing Day

and any other holiday proclaimed as a holiday with pay by the Provincial or Federal Government.

7.02 Overtime at the rate of double the employee's current hourly rate shall be paid to all employees covered by this Agreement for all work performed on Sundays and Statutory Holidays.

ARTICLE 8- WAGES AND CLASSIHCATIONS

The following hourly wage rates shall apply:

Effective Effective Effective Effective Jan 4/83 Oct 1/83 May 1/84 Oct 1/84

Job Foreman $14.00 $14.25 $14.50 $15.00

Crew Leader $13.00 $13.25 $13.50 $14.00

Carpenter $12.00 $12.25 $12.50 $13.00

3rd Yr.

Apprentice $11.00 $11.25 $11.50 $12.00

2nd Yr.

Apprentice $ 9.50 $ 9.75 $10.00 $10.50

1st Yr.

Apprentice $ 7.50 $ 7.75 $ 8.00 $ 8.50

General

Labourer $11.00 $11.25 $11.50 $12.00

ARTICLE 9- TRAVELLING ZONES

(a) Zone 1 - is the geographic area bordered by Hwy. No. 9 on the north, Hwy. No. 25 on the west, and Brock Street on the east.

(b) Zone 2 - is the geographic area bordered by Hwy. No. 89 on the north, Brock Street on the east, Hwy. No. 9 on the south, and Hwy. 25 on the west.

(c) Zone 3 - is the geographic area north of Hwy. No. 89 on the north, Hwy. No. 25 on the west, Brock Street on the east, and Hwy. No. 89 on the south.

N.B. - See map, travelling zones, page 15.

LETITER OF UNDERSTANDING

This Letter of Understanding forms part of the Collective Agreement between F E D CONSTRUCITION COMPANY

and Labourers' International Union of North America, Local 183, dated the 15th day of July, 1983.

The parties to the Collective Agreement are agreed that all self-employed Piece Workers who perform work covered by, or falling under, the Collec­tive Agreement shall be signatories to an Agreement with Labourers' Inter­national Union of North America, Local 183, and shall be:

1. Members in good standing of Labourers' International Union of North America, Local 183; and

2. In good standing with regard to their contributions to the Local 183 Members' Benefit Fund.

DATED at Toronto this 15th day of July, 1983.

F E D CONSTRUCTION LABOURERS' COMPANY INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183 ''Illegible" "Illegible'' "Illegible"

(5) Prior to September 26, 1983, a representative of F.E.D. told M. DiBiase that he had to sign with Local 183 or he could not work on any of Greenpark Homes' sites. M. DiBiase had an association with the form carpentry indus­try for a number of years and he was familiar with the ongoing competition between Local 183 and Local 27 for members. M. DiBiase was aware of the fact that F.E.D. had signed a contractor's collective agreement with Local

183.

(6) On September 26, 1983, the partnership Square One Carpentry was an employer with one employee, P. Arsenault, who was paid on an hourly basis. During the work day of September 26, 1983, Peter Baldassarra, a busi­ness agent of Local 183, attended at the Greenpark Homes site at Wood-bridge. P. Baldassarra knew that Local 183 had a collective agreement with F.E.D. that contained a standard subcontracting clause and his purpose in attending at the Greenpark Homes site was to ensure that the terms of the F.E.D. collective agreement were being complied with. His general approach was to attempt to sign up the workers as members in order to put them in good standing and then to attempt to sign a collective agreement with the relevant entity. On September 26, 1983, M. DiBiase, R. Furlong and P. Arsenault became members of Local 183 when they signed membership cards in each others presence at the same time after being approached by P. Baldassarra. After becoming members of Local 183, M. DiBiase and Fur­long signed Local 183's Residential Housing Carpentry Agreement on behalf of Square One Carpentry and P. Baldassarra signed on behalf of Local 183 ("the first agreement"). This agreement, which is identical to the F.E.D. col­lective agreement, was entered into on September 26, 1983 and made an exhibit in these proceedings. On September 26, 1983, P. Baldassarra was not aware of the Letter of Understanding referred to in paragraph (3) herein.

(7) Both M. DiBiase and Furlong were active on the site in that they per­formed carpentry work. In the house framing industry it is not unusual for the principals of a subcontractor to perform carpentry work and be members of a trade union. The standard Local 183 collective agreement at the time provided that self-employed pieceworkers who perform work covered by the collective agreement shall be signatories to an agreement with Local 183, shall be members in good standing of Local 183 and shall be in good standing with regard to their contributions to Local 183's Members' Benefit Fund.

(8) On September 26, 1983, M. DiBiase did not feel threatened in any way by any representative of Local 183. He did not want to sign an agreement with Local 183, but decided to do so. M. DiBiase also understood that if he did not work as a subcontractor to F.E.D., Square One Carpentry would be unable to secure a contract with other contractors of Greenpark Homes. When asked to sign an agreement with Local 183, M. DiBiase recognized that, as a practical matter, he had two choices. He could walk off the site and seek work somewhere else or sign a collective agreement with Local 183 and keep working as a subcontractor to F.E.D.

(9) In January 1984, after discussions with his accountant, M. DiBiase incor­porated a company by the name of Square One Carpentry Inc. The first directors were M. DiBiase, his brother Carmine and R. Furlong. Shortly after the incorporation, Furlong's involvement with Square One Carpentry Inc. ceased. From a practical point of view, the incorporation did not alter the nature of the business. Square One Carpentry ceased to exist and Square One Carpentry Inc. became involved in the business of performing work in the house framing industry under the control of M. DiBiase. M. DiBiase did not take the position with Local 183 that Square One Carpentry Inc. was not bound to the agreement signed with Local 183 by representatives of Square One Carpentry. Beginning in February 1984, the remittance forms sent to Local 183's administrator were in the name of Square One Carpentry Inc.

(10) The agreement between Square One Carpentry and Local 183 expired on April 30, 1985. By letter dated May 23, 1985, the parties were advised that the Minister of Labour appointed a conciliation officer and by letter dated June 24, 1985, the parties were informed that the Minister decided not to appoint a Board of Conciliation (commonly referred to as a "no board report").

(11) During February 1986, Square One Carpentry Inc. performed house framing work on a piecework basis pursuant to a subcontract with Laurier Homes, a builder. At the relevant time, Laurier Homes was bound to a col­lective agreement between Local 183 and the Toronto Housing Labour Bureau. The relevant provision of this collective agreement, which was made an exhibit in these proceedings, is Article 1.03(a):

1.03(a) The Employer agrees to sublet the following work only to Contractors who are in contractual relations with the

Union:

i) Basement forming;

ii) Concrete and Drain;

iii) Frame Carpentry.

(12) Approximately a week prior to February 11, 1986, a representative of Laurier Homes met with M. DiBiase at the offices of Laurier Homes. At this time, Square One Carpentry Inc. had completed about five houses pursuant to its contract with Laurier Homes. The representative advised M. DiBiase to sign an agreement with Local 183 or get off the job.

(13) During the work day of February 11, 1986, P. Baldassarra, along with another representative of Local 183, M. Lago, attended at the Laurier Homes job site where Square One Carpentry Inc. was performing work. In discussions with M. DiBiase, P. Baldassarra referred to the no board report and to the collective agreement Local 183 had that bound Laurier Homes. He also advised M. DiBiase that he would have to sign an agreement if he wanted to stay on the job. At this time, Square One Carpentry Inc. employed a few employees but P. Baldassarra made no attempt to get them to sign membership cards on that day, but signed them on a subsequent occa­sion in the back of a van in the presence of M. DiBiase. On February 11, 986, M. DiBiase and C. DiBiase signed Local 183's Residential Housing Car­pentry Agreement on behalf of Square One Carpentry Inc. and P. Baldas­sarra and M. Lago signed on behalf of Local 183 ("the second agreement"). This agreement remained in effect until April 30, 1987 and was made an exhibit in these proceedings. In signing the agreement on February 11, 1986, M. DiBiase was primarily motivated by a desire to keep Square One Carpen­try Inc.'s contract with Laurier Homes.

(14) In the spring of 1986, the Metropolitan Toronto area began to experi­ence the start of a housing boom. M. DiBiase was unable to obtain from Local 183 the number of persons Square One Carpentry Inc. needed. In Sep­tember 1986, and for a number of months thereafter, Square One Carpentry Inc. performed house framing work pursuant to a subcontract with Landford Developments Ltd. During this period of time, Landford Developments Ltd. was a party to a collective agreement with Local 183.

(15) In early September 1986, a representative of Local 27 approached M. DiBiase on a job site and asked him if Local 27 could supply him with some crews. M. DiBiase and his brother made the decision to go with Local 27 and M. DiBiase advised the Local 27 representative that he could send crews consisting of Local 27 members to Square One Carpentry Inc. Local 27 did send such crews to Square One Carpentry Inc. It was understood that while the Local 27 members worked for Square One Carpentry Inc., the company would remit benefit trust fund contributions and working dues on their behalf. Square One Carpentry Inc. did remit such amounts for at least the months of September, October and November 1986. Square One Carpentry Inc. did not enter into a collective agreement with Local 2'7. If Square One Carpentry Inc. had been able to secure Local 183 members, it would have remitted the appropriate contributions on their behalf to Local 183.

(16) On October 1, 1986, Local 27 made an application for certification for a bargaining unit of carpenters and carpenters' apprentices employed by Square One Carpentry Inc. The terminal date for the application was Octo­ber 20, 1986. M. DiBiase posted the Notice to Employees but did not file with the Board a reply, a list of employees or specimen signatures. M. DiBi­ase agreed to the certification of Local 27. Local 183 was not given any notice of Local 27's application for certification for Square One Carpentry Inc. By decision dated October 22, 1986,the Board certified Local 27 for a bargaining unit of employees of Square One Carpentry Inc. as described in paragraph 1 herein. During October 1986, and prior to October 20, 1986, L. Baldassarra attended at a Square One Carpentry Inc. job site as part of a general control of job sites and noticed that certain employees were working for the company who were not members of Local 183. L. Baldassarra advised M. DiBiase that all the men should be members of Local 183. Local 183 filed a grievance dated October 20, 1986 alleging a contravention of Local 183's agreement with Square One Carpentry Inc.

(17) J. Morgado and L. Mendes worked as pieceworkers for Square One Carpentry Inc. in the fall of 1986. Both Morgado and Mendes signed mem­bership cards for Local 27 in early October 1986. Prior to signing a Local 27 card, Morgado had a discussion with C. DiBiase at work in which C. DiBiase advised him that his union was Local 27 and Morgado should belong to Local 27. C. DiBiase had been a member of Local 27 since at least January 1984. Prior to signing a Local 27 card, Mendes had a discussion with M. DiBiase in which M. DiBiase told him to sign up for Local 27 without giving him any reason. At the time of these discussions, there was no legal obligation requir­ing Morgado and Mendes to sign Local 27 membership cards.

4. In accordance with the agreement of the parties, the statement of fact was put before the present panel and the parties were given the opportunity to make submissions. Although given notice of that hearing, no one appeared on behalf of Square One Carpentry or Square One Car­pentry Inc. The parties' submissions, which essentially focused on whether or not the first agree­ment was valid, are as follows.

5. Counsel for Local 183 argued that the Board should grant Local 183 the relief it requested in its section 63 and subsection 1(4) application. Counsel noted that the same business with the same principals continued with the incorporation of Square One Carpentry Inc. Counsel for Local 27 concentrated on the subsection 1(4) application. He noted that the basic elements nec­essary for subsection 1(4) relief were present and that a single employer declaration would have been appropriate if such an application had been made in 1984. However, counsel argued that the Board should not exercise its discretion in favour of granting subsection 1(4) relief given the pas­sage of time, and because Local 183, who treated the two entities separately, was now improperly attempting "to boost" its bargaining rights.

6. Counsel for Local 27 argued that parties could not enter into a valid voluntary recogni­tion agreement when an employer has only one employee. Counsel submitted that since the Board is precluded from certifying a trade union for a one employee bargaining unit, the Act implicitly recognizes that a trade union should not obtain bargaining rights for a bargaining unit of less than two employees. Counsel referred to the only two Board decisions on point of which he was aware of: Peter Walter Dow, [1981] OLRB Rep. June 692 and J. C. Milne Const. Co. (Canada) Inc., [1979] OLRB Rep. Mar. 220. These cases take different approaches to the issue and counsel asked us to adopt the approach in Peter Walter Dow, supra. In essence, counsel for Local 183 asked us to follow the approach in J. C. Milne Const. Co. (Canada) Inc., supra. Counsel noted that the Peter Walter Dow decision makes no reference to the earlier decision and that both were decided prior to Nicholls-Radtke, [1982] OLRB Rep. July 1028 where the Board found, given the circumstances, that a collective agreement was valid even though it was signed when the employer did not employ anyone falling within the bargaining unit.

7. The remaining submissions concentrated on the issue of whether the first agreement was invalid due to employer support contrary to section 48 of the Act. These submissions focused

essentially on the statement by the F.E.D. representative to M. DiBiase that he had to sign with Local 183 or he could not work on any of the Greenpark Homes' sites and the way in which Local

183 obtained the membership evidence on September 26, 1983 prior to signing the first agreement.

8. Counsel for Local 183 submitted that the subcontracting provision in the F.E.D. collec­tive agreement was a valid provision. Counsel for Local 27 conceded, in essence, that the relevant subcontracting provision was legal in an abstract sense. Counsel for Local 183 then characterized the central issue in this case as one of whether Local 183 could enforce the subcontracting provi­sion since this, he submitted, was all Local 183 did. Counsel argued that the comment of the F.E.D. representative to M. DiBiase does not constitute employer support given the presence of the subcontracting clause and the other circumstances of this case. He noted that F.E.D. was sim­ply attempting to ensure there was compliance with its collective agreement. Counsel suggested there could not be employer support in these circumstances since there was no evidence that Local 183 representatives were aware of what the F.E.D. representative said to M. DiBiase. Counsel also noted that it is clear from the facts that M. DiBiase was not threatened and did not want to sign with Local 183. Counsel submitted that membership cards and a collective agreement were signed not because of anything Local 183 did but because of what the F.E.D. representative said. He argued that faced with certain economic realities, Square One Carpentry made a business deci­sion to sign the agreement and remain working on the site. Counsel submitted that Local 183 took a practical, economical and common sense approach. Rather than have Square One Carpentry kicked off the job site, it gave the employer and employees the right to sign and continue working. In counsel's submission, the existence of the subcontracting provision with F.E.D. gave Local 183 the right to put F.E.D. in compliance with its collective agreement and as long as it pursued this objective, the precise manner in which compliance was achieved is irrelevant. For example, when membership cards were signed in relation to the signing of a collective agreement or how the mem­bership cards were signed are irrelevant.

9. In response to the above comments, counsel for Local 27 argued that the existence of a subcontracting provision did not entitle Local 183 to ignore the provisions of the Act in its quest to put a subcontractor such as Square One Carpentry in compliance. Counsel submitted that such an approach ignores the section 3 rights of employees and the general scheme of the Act which has as one of its bases the principle that employees have the right to freely choose a bargaining agent. He argued that no matter how efficient or practical the approach, the decision as to whether a valid bargaining relationship has been created cannot be based solely on whether an employer made a wise business decision. In arguing that the first agreement was void due to employer support, coun­sel referred to the circumstances in which Local 183 obtained its membership evidence. Counsel noted that the employee signed a membership card in the presence of the partners who also signed membership cards. He emphasized the responsive nature of the employer-employee relationship and submitted that from the evidence the only inference the Board can draw is that the employee signed because the owners did. It was argued that a voluntary recognition entered into when there are no employees or where the trade union does not represent any of the employees is void for employer support (the Nicholls-Radtke exception was noted). Counsel argued that since the mem­bership card of the only employee was obtained with employer support, there was no valid mem­bership evidence. He argued in essence then that this is a case where Local 183 entered into a col­lective agreement when it did not represent any employees. Counsel submitted that the presence of the subcontracting provision cannot legitimize what occurred here which was the selection of a bar­gaining agent for its employee by Square One Carpentry. Counsel for Local 183 responded by again emphasizing the importance of the F.E.D. subcontracting provision and argued that the cir­cumstances in which the membership cards were signed should not lead the Board to infer that the employee did not join Local 183 voluntarily.

10. Counsel for Local 27 argued that when examining the significance of the relevant sub­contracting provision, one must have regard to the Letter of Understanding between Local 183 and Greenpark Homes (see paragraph (3)), specifically 2(a) and (d) of that document. 2(a) provided for a period of exemption for the operation of the subcontracting provision in the Greenpark Homes' collective agreement while 2(d) recognized that the development of a particular situation would nullify the operation of the subcontracting provision. In counsel's view, these provisions raised the issue of whether there was in fact an enforceable subcontracting provision at the relevant time. Counsel conceded that the Letter of Understanding was not a part of the F.E.D. collective agreement which contained the subcontracting provision relied on by Local 183. However, he referred to the relationship that existed between F.E.D. and Greenpark Homes and the Letter of Understanding and argued that there was some doubt as to the enforceability of F.E.D.'s subcon­tracting provision. Counsel noted he was not alleging that F.E.D. and Greenpark Homes consti­tuted a single employer for the purposes of the Act. Counsel for Local 183 countered by arguing that Greenpark Homes and F.E.D. were two separate entities and were each bound by a separate collective agreement with Local 183. He submitted that since the Letter of Understanding was not a part of the F.E.D. collective agreement, its terms were irrelevant to a consideration of the sub­contracting provision contained therein.

11. Counsel for Local 27 argued that, even if one ignored the relationship between F.E.D. and Greenpark Homes, 2(b) of the Letter of Understanding constitutes employer support which renders the first agreement void. 2(b) requires the builders to provide Local 183 with a list of exist­ing carpentry subcontracts and the location of the projects within one week of the signing of the Letter of Understanding. It was argued that this provision was intended to assist Local 183 in its organizing efforts since in the construction industry access to the sites is access to the employees. Counsel submitted that since Square One Carpentry worked for F.E.D. throughout 1983, the year that the Greenpark Homes' collective agreement was executed, it was by means of 2(b) that Local 183 was able to locate Square One Carpentry. In support of this argument, counsel relied on Tn-Canada Inc., [1981] OLRB Rep. Oct. 1509. In response, counsel for Local 183 noted that one must read 2(a) and (b) of the Letter of Understanding together. He submitted that the information the builders were required to provide to Local 183 was necessary in order to determine what enti­ties were entitled to the exemption contained in 2(a). Counsel also argued that there simply was not any evidence to suggest that the builders were assisting Local 183 in its efforts to organize house framing subcontractors.

12. The Board is satisfied that it is appropriate in the circumstances to grant Local 183 a remedy under section 63 and subsection 1(4) of the Act. In early 1984, the business of Square One Carpentry was transferred to Square One Carpentry Inc. The evidence also indicates that these two entities were engaged in the same business under common control and direction. The circum­stances warrant the Board's exercising its discretion in favour of granting a subsection 1(4) declara­tion. This is not a case where Local 183 is attempting to extend its bargaining rights. Accordingly, the Board declares that there has been a sale of a business from Square One Carpentry to Square One Carpentry Inc. and that these two entities constitute a single employer for purposes of the Labour Relations Act.

13. As noted earlier, the Board was referred to two cases which address the issue of whether parties can enter into a valid voluntary recognition agreement at a time when there is only one employee that would fall within the scope of the bargaining unit description. In Peter Walter Dow, supra, a section 89 complaint, the Board addressed the issue very briefly and commented at paragraph 31 that "we are of the view that the requirement of 'more than one employee' is also mandatory for a voluntary recognition agreement as evidenced by the wording of sections 15(3) and 52". In reaching this conclusion, there is no indication that the panel considered the following paragraphs in J. C. Milne Const. Co. (Canada) Inc., sup ra:

13. The second memorandum is a voluntary recognition agreement covering construction lab­ourers in the employ of the respondent in Board Area 8. On July 14, 1978 the respondent did in fact employ one construction labourer in Board Area 8 and that construction labourer was a member of the intervener. At the hearing, however, the question was raised as to whether a bargaining unit must include at least two employees before a valid voluntary recognition agreement could be entered into. In this regard reference was made to section 6(1) of the Act which stipulates that upon an application for certification any bargaining unit determined by the Board must consist of more than one employee. Section 6(1), however, is referable only to the certifi­cation process and makes no reference to voluntary recognition. The Labour Relations Act rec­ognizes the voluntary recognition process as a completely separate method by which trade unions can acquire bargaining rights. Therefore, statutory limitations on the Board's ability to define a bargaining unit on an application for certification cannot be assumed to also restrict the right of an employer and a trade union in drafting the bargaining unit in a voluntary recognition agreement.

14. Section 52 of the Act does contain a requirement that at the time a trade union is voluntarily recognized it must represent "the employees in the bargaining unit". The use of the word "em­ployees" in this requirement does suggest that more than one employee must be in the bargain­ing unit for which a union is voluntarily recognized. However, such a suggestion ignores the effect of section 27 of The Interpretation Act which reads, in part, as follows:

In every Act, unless the contrary intention appears

(j) words importing the singular number or the masculine gender only include more persons, parties or things of the same kind than one, and females as well as males and the converse.

15. In our view the Labour Relations Act does not express an intention that the word "employ­ees should not also be interpreted to include a single employee. Indeed, if anything the con­trary is true. Because of the fluctuations in employment (particularly in the construction indus­try) it sometimes happens that there is only one employee in a bargaining unit, even though at the time the union obtained its bargaining rights there were two or more employees. Notwith­standing this fact, the term "employees" is used throughout the Act with respect to provisions which would appear to be applicable to a single employee in an established bargaining unit. An example of this is section 42 of the Act which states that a collective agreement is "binding upon the employer and upon the trade union that is a party to the agreement ... and upon the employees in the bargaining unit defined in the agreement" (emphasis added). In light of these considerations we are satisfied that the term "employees" when used in the Labour Relations Act should be interpreted to include a single employee. Therefore, we are of the view that the reference in Section 52 of the Act to a union being entitled to represent the employees in a bar­gaining unit at the time it is voluntarily recognized also has reference to a single employee within such a bargaii₁ig unit, and that accordingly, there is no impediment in the Act to having an employer voluntarily recognize a trade union as bargaining agent for a bargaining unit con­sisting of only one employee.

14. We agree with the conclusion in I. C. Milne Const. Co. (Canada) Inc., supra, on this point and adopt the reasons set out in the paragraphs quoted above. We conclude that, having placed a restriction on the numerical size of a bargaining unit for the purposes of a certification application but not in the case of a bargaining unit created through the process of voluntary recog­nition, the Legislature did not intend to preclude parties from entering into voluntary recognition agreements where the bargaining unit consists of one employee.

15. As a general comment, the Board does not view this case as dealing with the issue of whether Local 183 can enforce the subcontracting provision contained in the F.E.D collective agreement. The Board has determined that subcontracting provisions can be a legal means by which a trade union preserves its work jurisdiction (see The Metropolitan Toronto Apartment Builders Association, [1978] OLRB Rep. Nov. 1022). Enforcement of Local 183's subcontracting provision with F.E.D. would generally involve Local 183 dealing with or instituting proceedings against F.E.D. This is not to suggest, however, that Local 183 cannot attempt to obtain bargaining rights for employees of a particular subcontractor, such as Square One Carpentry, whose presence on a job site may be in contravention of a subcontracting provision. l3ut in attempting to obtain compliance with a subcontracting clause, a trade union may not be able 1:0 legitimately use the exis­tence of such a clause as a defence to conduct which ignores the section 3 rights of employees and contravenes other provisions of the Act.

16. In determining whether a trade union has been the beneficiary of employer support within the meaning of sections 13 and 48 of the Act, the Board has regard to the purpose of those provisions. In Edwards & Edwards Limited, 52 CLLC ¶17,027, the Board expressed the following views on what is now section 13 of the Act:

The unfair practice sections of the Act (including section 45 which prohibits the type of employer conduct referred to in section 9) [which latter section in its relevant parts was the pre­decessor of the present section 101 are, in large part, designed to safeguard the freedom of employees to join and to bargain collectively through the trade union of their own choice which is granted in section 3. That purpose is furthered by the provisions of section 9 which places upon the Board the obligation to satisfy itself that no employer has meddled in the affairs of an applicant for certification. The section is clearly aimed at "company-dominated" trade unions which are not entitled to be certified, on the theory that a trade union fostered by an employer cannot be considered as having been freely chosen by employees. The section designates con­duct by means of which an employer might seek to confine the broad right conferred by section 3 and is therefore to be called into play where that purpose appears. We consider it is intended to be applied where employer activities are of such a character or are of such proportions that it is reasonable to infer that the employees have not exercised a free choice in the matter of the selection of a bargaining agent, or where an employer has given material assistance to a trade union in connection with its organizational or other activities; where, in other words, the partic­ular applicant is not truly the chosen bargaining agent of the employees concerned.

In Canada Crushed Stone, [19771 OLRB Rep. Dec. 806, the Board also commented on the pur­pose of section 13 at paragraph 27:

The broad purpose of the section, simply stated, is to preserve the integrity of the collective bar­gaining process by barring the application of any trade union which, because of employer sup­port, does not owe its sole allegiance to those whom it seeks to represent. A trade union which has accepted the support of any employer whose interests may be affected by its representation places itself in a potential conflict of interest and thereby undermines itself as a union "qualifi­ed" to act on behalf of those it seeks to represent. 5ection 12 catches both the "sweetheart" arrangement between the parties directly affected and also the accepted support of any outside employer whose interests may be affected by the collective representation of those whom the union seeks to represent. In both instances the union's acceptance of employer support activates the Section 12 bar.

17. After an extensive review of the Board's jurisprudence in this area, the Board in Cabral Foods Inc., [1985] ORLB Rep. Feb. 165 noted at paragraph 35 that "if a trade union's ability to be certified or to enter into binding collective agreements could be destroyed by unsolicited employer behavioua of which the union was totally unaware, sections 13 and 48 would cease to serve as pro­tections from employer interference in employees' selection of a bargaining agent and, instead, become potent instruments for effecting just such interference".

18. Given the purpose of section 48 and the principles referred to above, the Board finds that the statement by the F.E.D. representative to M. DiBiase that he had to sign with Local 183 or he could not work on any of the Greenpark Homes' sites does not constitute employer support in the circumstances of this case. F.E.D. was bound to a collective agreement with Local 183 which contained a valid subcontracting provision. The statement of the F.E.D. representative was designed to ensure that F.E.D. complied with its contractual obligation and within this legal con­text we cannot conclude that Local 183 was the beneficiary of employer support. In addition, there was no evidence to suggest that Local 183 put any pressure on F.E.D. or that any of Local 183's representatives were aware of what the F.E.D. representative said to M. DiBiase. The facts dis­close as well that there was not a "sweetheart" arrangement between Square One Carpentry and Local 183. M. DiBiase was not particularly anxious to sign a collective agreement with Local 183 but did choose to do so when confronted with the practical realities of the situation. When con­fronted with the choice of leaving the job site or entering into a collective agreement with Local 183 so as to make Square One Carpentry a subcontractor which F.E.D. could legitimately use without contravening its collective agreement, M. DiBiase chose the latter.

19. In concluding that Local 183's collective agreement with F.]B.D. contained a valid sub­contracting provision, the Board had regard to Local 27's submissions concerning the effect of sec­tion 2(a) and (d) of the Letter of Understanding which formed part of Local 183's collective agree­ment with Greenpark Homes. In the Board's view, it is not appropriate to assess the validity of the relevant subcontracting provision with reference to the terms contained in the Greenpark Homes collective agreement. Since it is not alleged that F.E.D. and Greenpark Homes constitute one employer for the purposes of the Act, they must be treated as separate entities. The relationship which does exist between the two entities does not lead us to conclude that sections 2(a) and (d) of the Letter of Understanding apply to F.E.D. The fact that the F.E.D. representative advised M. DiBiase to sign with Local 183 or, in effect, to get off the job site indicates that F.E.D. was not of the view that section 2(a), the exemption provision in the Letter of Understanding, applied to it.

20. The Board also cannot accept Local 27's submissions relating to section 2(b) of the Let­ter of Understanding. When one reads section 2(a) and 2(b) together, it is evident that the purpose of 2(b) was not to have the builders provide Local 183 with organizing assistance. In section 2(a), Local 183 gave the builders an exemption for a period of time from the subcontracting provision with respect to carpentry subcontracts existing at the time the agreement was signed. Section 2(b) requires the builders to provide Local 183 with certain information concerning those subcontracts. Clearly, the purpose of the information was to assist Local 183 in ensuring that the builders were complying with section 2(a). The existence of a provision such as 2(b) within the context of an established bargaining relationship (which is quite different from the circumstances in Tri-Canada Inc., supra) does not raise, on the facts before us, the mischief which section 48 was designed to avoid. The Board notes that there was nothing before us to suggest that Local 183's presence on the Greenpark Homes job site at Woodbridge on September 26, 1983 was a result of any informa­tion supplied by Greenpark Homes.

21. The Board now turns to the issue of whether the way in which Local 183 obtained its membership support on September 26, 1983 constitutes employer support. There is an onus on Local 27 to satisfy the Board on the balance of probabilities that the employee of Square One Car­pentry did not become a member of Local 183 voluntarily. The Board is asked to infer this simply from the fact that the employee signed a membership card in the presence of and at the same time as the partners signed membership cards. Although recognizing the sensitive nature of the employer-employee relationship, the Board is not satisfied that the facts warrant the conclusion that the employee signed a membership card with Local 183 because of employer support. There are no facts which indicate that M. DiBiase or Furlong discussed joining the union or directed the employee to join Local 183. It is a common practice in this sector of the construction industry for the principals of small businesses to perform work and hold a membership card in a trade union. When one reviews all of the circumstances, it appears probable that the prime reason the employee signed with Local 183 was because he wished to remain working at that site and realized that this would not be possible unless he joined Local 183, in view of the subcontracting clause. The Board notes that the Square One Carpentry agreement with Local 183 had been in effect for a number of years with no indication from employees that they did not want Local 183 to represent them until the time of Local 27's certification application. Taking all of these circumstances into account, the Board is not satisfied that there has been employer support within the meaning of section 48 of the Act which nullifies the application for membership signed by Square One Carpentry's employee on September 26, 1983.

22. For the foregoing reasons, the Board finds that Square One Carpentry and subsequently in January 1984, Square One Carpentry Inc., were bound to a two-year collective agreement with Local 183 which expired on April 30, 1985. Having determined that Local 183 obtained bargaining rights for Square One Carpentry Inc., the Board also finds that Local 183 and Square One Carpen­try Inc. were parties to a collective agreement for a period commencing in February 1986 until April 30, 1987 and that this collective agreement was a renewal of the previous collective agree­ment. Given these findings, it is unnecessary for us to deal with the parties' submissions concerning the validity of Local 27's membership evidence filed in support of its certification application.

23. Under these circumstances, it is appropriate to reconsider the decision dated October

22, 1986 certifying Local 27 for a unit of carpenters and carpenters' apprentices employed by Square One Carpentry Inc. Local 27's application was untimely since it was made at a time when the second collective agreement between Square One Carpentry Inc. and Local 183 was in opera­tion and not in an open period. The Board hereby revokes the certificates issued to Local 27 and Square One Carpentry Inc. dated October 22, 1986 and directs Local 27 to return the certificates to the Registrar forthwith. With respect to Board File No. 0616-87-M, the Board advises the Minister that a conciliation officer should not be appointed since Local 27 does not hold bargaining rights for carpenters and carpenters' apprentices employed by Square One Carpentry Inc.