United Brotherhood of Carpenters and Joiners of America, Local 38 v. Ameri-Cana Motel Limited and 603185 Ontario Limited
[1989] OLRB Rep. October 1009
0708-89-R United Brotherhood of Carpenters and Joiners of America, Local 38, Applicant v. Ameri-Cana Motel Limited and 603185 Ontario Limited, Respondents
BEFORE: Michael Bendel, Vice-Chair, and Board Members R. W. Pirrie and P. V. Grasso.
APPEARANCES: David McKee and Arthur Varty for the applicant; B. W. Adams, N. DiBellonia and M. Glavcic for the respondents.
DECISION OF THE BOARD; October 4, 1989
This is an application under section 63 of the Labour Relations Act, in which it is alleged that Ameri-Cana Motel Limited ("Ameri-Cana") sold its business to 603185 Ontario Limited ("the number company") and that, as a result, the number company is subject to the Carpenters' provincial agreement. Coupled with the application under section 63 of the Act was a request for a declaration under section 1(4) of the Act that the two corporations constituted one employer for the purposes of the Act.
The main issue in dispute between the parties is whether the applicant has abandoned its bargaining rights. In 1972, the applicant was certified by the Board as the bargaining agent for the carpenters and carpenters' apprentices employed by Ameri-Cana. At that time, Ameri-Cana was engaged in some construction work at its motel in Niagara Falls. According to the applicant, it was unaware of any further construction work being performed at the motel until 1989, when the number company, which had bought the business in 1985, undertook some construction activity. It claims that, despite the passage of 17 years, its bargaining rights have remained intact. The respondent corporations, on the other hand, allege that substantial construction work was in fact in progress throughout much of the 17-year period and that the applicant, through its inactivity, has abandoned its bargaining rights.
No evidence or argument was presented in support of the request for a declaration under section 1(4) of the Act.
In the course of his submissions, counsel for the applicant argued that there could not, as a matter of law, be any abandonment of bargaining rights following the introduction of province-wide bargaining in 1978. He referred to Lorne's Electric, [1987] OLRB Rep. Nov. 1405 in support of that submission. Counsel for the respondents gave us no reason to doubt this interpretation of the case law or its applicability to the facts of this case. As a result, the Board must inquire into the question whether the applicant had bargaining rights in respect of Ameri-Cana's employees immediately prior to the introduction of province-wide bargaining. If it had rights at that time, we accept the applicant's argument that it has retained them. We must therefore examine the evidence relating to the work performed by Ameri-Cana between 1972 and 1978, and the steps taken by the applicant to assert its bargaining rights during that period.
The principal of Ameri-Cana, Mike Glavcic, gave evidence on the different stages in the construction of the motel. In 1959-60, a motel consisting of ten rooms and a restaurant was constructed. By 1971, it had been expanded to two adjacent single-storey buildings, with a 30 foot space between them, containing a total of some 42 rooms. Ameri-Cana planned to convert these two motels into a single, much larger hotel. Specifically, it planned to do the following:
(a) to add a second storey, with additional rooms, to each of the buildings ("the first phase");
(b) to close the space between the two buildings, part of which would become corridor space and part of which would permit the expansion of the existing rooms; to open doors from this corridor into each of the units and to close the outside doors to each of the ground floor units; and to remodel the units, with new bathrooms in the space adjoining the corridor ("the second phase"); and
(c) to construct a further 36 units at the rear (the south) of the building ("the third phase").
The first phase of this expansion commenced sometime in 1971 and was largely completed by July 1973. The second phase began in late 1973 and was completed by the end of 1974. Construction on the third phase started late in 1974. After the first floor units on the third phase were completed, the municipal building department, it appears, imposed new fire separation requirements. This led to some uncertainty on the part of Mr. Glavcic about completing the third phase. Work stopped for about a year. The second floor on the third phase was eventually completed sometime in 1976.
In addition to these three major phases of expansion of the premises, improvements were being made, according to Mr. Glavcic, on a continuous basis throughout the relevant period. Inside and outside work was undertaken. The living quarters for the owner were also improved.
Mr. Glavcic had had some experience in the construction industry. He did not use the services of a general contractor and he performed some of the work personally. Carpentry work figured prominently in each of the three phases of the expansion of the premises. In the first phase, about three carpenters, as well as a couple of helpers, were employed. On the other phases, one or two carpenters were employed, and Mr. Glavcic did some carpentry work himself. He hired the carpenters and helpers through the Manpower Centre. He paid no particular attention to whether they were union members nor not.
The applicant was certified by the Board as bargaining agent for carpenters and carpenters' apprentices on December 5, 1972. Mr. Glavcic had only a vague recollection of the certification process. According to the Board's decision certifying the applicant,
In paragraph 13 of its Reply, the respondent has stated:
I am building an addition to motel. I have hired on a casual basis two carpenters who work only when called from time to time and also a helper on the same basis. Their work will be completed in a matter of a few days.
- In paragraph 14(2) of its Reply, the respondent has consented to the application being disposed of by the Board without a hearing by the Board and has made the following representations thereon:
This doesn't seem to make any sense to me. I am not in the construction business and don't intend to be. When addition is complete I will have no need of any carpenter.
The fact that an employer hires employees on a casual basis and that their work will soon be finished has not been held by the Board to be a ground for denying certification to a trade union.
It appears from the material filed with the Board that although the general nature of the respondent's business is the operation of a seasonal motel, it has, nevertheless, entered the field of construction for the purpose of building an addition to its motel.
Mr. Glavcic could not state what work he might have had in mind when he made the reply attributed to him in the Board's decision; he could not even remember having made that reply. He could not recall being notified by the Board of its decision to certify the applicant. All that he could recall from this period was being summoned to a meeting at a local hotel by some government department, possibly the Ministry of Labour, in the fall, although he was not sure of the year. The union was represented at the meeting, as was the government department. He remembers being told that the union had signed up some members and that, if he hired non-union carpenters, there would be a strike. The meeting lasted about 30 or 45 minutes. It was not a formal hearing.
Mr. Glavcic testified that, apart from the meeting at the local hotel, he had no other contact that he could recall with the applicant. He engaged in no negotiations with the applicant. He signed no collective agreement. He remitted no dues to the applicant. He had no correspondence with the applicant. He had no visits from any officers or representatives of the applicant. When he sold the business to the number company, it did not occur to him to mention the applicant.
The applicant was not able to contradict any of Mr. Glavcic's evidence concerning contacts between the applicant and Ameri-Cana. Its business representative in the Niagara Falls area at the relevant time is now deceased. The applicant's existing records from that era contain no reference to Ameri-Cana (except for the certificate from the Board).
Extensive evidence was presented on the "visibility" of the work undertaken by AmeriCana. The front of the motel is on Lundy's Lane, Niagara Falls, which is Highway 20, a major artery in the area. Construction materials were delivered from Lundy's Lane, and materials piled in the parking lot could be seen from Lundy's Lane. The construction on the first two phases was apparent to guests at the motel, which remained open for business throughout most of the construction (except for its regular winter closing). Much of the construction work on the first two phases was also apparent to people passing along Lundy's Lane. There was no sign advertising the construction work, but the building permit was displayed. Only a small part of the third phase of the construction was visible from Lundy's Lane, but it could all be seen from Kalar Road, the road at the side and rear of the premises. Although current photographs of the view of the property from Kalar Road suggest that the view would have been obstructed by foliage for much of the year, Mr. Glavcic testified that, at the time of the construction of the third phase, the trees and bushes in question were newly planted and would not have obscured the view.
Evidence was presented on behalf of the applicant by Mr. Arthur Varty, its full-time business agent in the Niagara Falls area since 1977, about his practices in keeping track of the performance of work in respect of which it has bargaining rights. Mr. Varty stated that, upon being elected to his position in 1977, he went through the applicant's certificates and collective agreements, as well as its minutes, to determine the extent of its bargaining rights. In this way, he learned of the applicant's rights in respect of Ameri-Cana. In order to keep informed of construction activity within its jurisdiction, he attends meetings of the Building and Construction Trades Council and maintains contacts with people in the business, including other business agents. In the course of his travelling within the area, he varies his routes so as to check on possible construction activity. He testified that it was pointless for a business agent to just wander around in the hope of discovering previously unknown construction sites. The applicant has bargaining rights at three hotels or motels. The irregularity of construction work made it impractical, he stated, for him to visit these employers as a means of keeping himself informed of work being undertaken. He would only visit these employers if he became aware of information suggesting that construction work was being carried on. He also testified that, on the occasions he had visited any of these employers, he had the distinct impression he was not welcome there. Mr. Varty testified that he learned a lot of his job as business agent from his predecessor, Mr. Hap Haig, who is now deceased, and that Mr. Haig's practices were essentially the same as his.
Mr. Varty testified that, despite travelling regularly on Highway 20, he was never aware of construction going on at the motel, until shortly before this application was brought. He could not say for sure whether Mr. Haig travelled along Highway 20. He acknowledged, however, that a lot of construction had taken place in the area of the motel in the past 17 years, including a major shopping centre just one block away. He asserted that there would rarely have been any reason for Mr. Haig or himself to travel along Kalar Road, from which, it seems, the construction of the third phase could have been seen.
Mr. Varty testified that the applicant's practice, prior to the advent of province-wide bargaining, had been to negotiate basically two collective agreements, with the same term, with two employer associations and to seek to bind all of the employers with which it had bargaining rights to one or other of them. The collective agreements were for the period from 1973 to 1975, and 1975 to 1977. These last agreements were extended for a year with the approach of provincial bargaining in 1978.
As the Board has held on many occasions, whether a bargaining agent has abandoned its bargaining rights is a question of fact. In J. S. Mechanical, [1979] OLRB Rep. Feb. 110, the Board reviewed the factors that might support a finding of abandonment:
In assessing the bargaining relationship between the union and the employer to determine whether or not a union has abandoned its bargaining rights, the Board considers various factors. Among other possible indicators, the Board looks to the length of the union's inactivity, whether it has made attempts to negotiate or renew a collective agreement, whether the union has sought to administer the collective agreement through the grievance and arbitration provisions in the collective agreement, whether terms and conditions of employment have been changed by the employer without objection from the union as well as whether there are any extenuating circumstances to explain an apparent failure to assert bargaining rights.
As this passage indicates, "extenuating circumstances" might exist to "explain an apparent failure to assert bargaining rights". The most obvious such circumstance is where the employer has been inactive in the relevant geographical area. The Board explained its approach to this element in Barkman Builders Ltd., [1984] OLRB Rep. April 565:
The fact of inactivity, as in this case, does not in and of itself establish abandonment. (See Inducon Construction (Northern) Inc., supra and the cases referred to therein.) In the construction industry an employer must be working within the geographic area for which the union holds bargaining rights and, especially where the bargaining rights are in respect of an area such as the District of Kenora, there must be a reasonable basis upon which to conclude that the union ought to have known that the employer was active. In this case we are satisfied that, with the exception of the mini-mall job, the union did not know that Barkman was active in the area nor, on the evidence, ought it to have known. We do not accept that the union was required to search all of the building permits issued in the area in respect of house renovations and cottage building. The Homestake job was a renovation that was not visible from the road and the apartment complex job was carried on under the name of Barkman's partner. We are satisfied that Mr. Sherman conducted himself in a manner designed to keep himself abreast of the work being carried on in the area and that he had no reasonable way of knowing that Barkman was active in the area.
We concur with the statement made by the Board at paragraph 13 of the Inducon case, supra that a "trade union is not required to perform academic exercises with an employer in the construction industry in order to represent non-existent employees." Although there were employees in this case the union had no knowledge of them and, as we have found, there is no reasonable basis upon which it ought to have known. In these circumstances, there was no requirement upon the union to file for conciliation services and push for a "no-board" report. The failure of the union to do so or to otherwise actively pursue its bargaining rights therefore does not support a finding of abandonment.
The evidence, although somewhat vague, suggests that the applicant became certified after the first phase of construction had been largely completed. During this phase, Ameri-Cana employed three carpenters and a couple of helpers. The applicant must have been aware of that phase of the construction, which led it to seek certification. We are prepared to accept that the applicant had no actual knowledge of the subsequent phases of construction at the motel. The question we have to consider is whether there was some reasonable basis upon which it ought to have known.
Both parties sought to draw support for their positions from the fact that this employer's main business was the operation of a motel. The applicant says that construction work was not being performed with sufficient regularity to warrant efforts on its part to maintain contacts with this employer. The number company says that this was a "fixed" employer, in the sense that, unlike the vast majority of employers in the construction industry, it operated from a single fixed location, which made it easy for the applicant to keep abreast of any construction work being performed. We share the number company's perspective on this question. As the Board stated in Barkman Builders Ltd., supra, the question is whether the business agent "conducted himself in a manner designed to keep himself abreast of the work being carried on in the area and [whether] he had ... [any] reasonable way of knowing that [the employer] was active in the area". When a construction union becomes certified as bargaining agent for employees of an employer whose main business is not construction, it seems to us that it cannot reasonably follow the same approach to ensuring that its bargaining rights are respected as it does in the case of employers whose principal business is construction. On the one hand, its traditional means of learning whether the employer is active within its geographical area - e.g. maintaining contact with other business agents; attending meetings of the local building and construction trades council; looking for signage; monitoring bidding and sub-contracting through trade newspapers - are less likely to bear fruit. On the other hand, there exists a very simple way for the applicant to learn of construction activity by the "fixed" employer, namely through visiting its premises. We are not persuaded that it would have been onerous or impractical for the business agent to have periodically attended at the motel or driven past the motel to see if there was any evidence of construction work. We are satisfied that if the applicant's business agent had visited the premises periodically between 1973 and 1977 or even if he had made a point of driving by the premises periodically, he could not have failed to become aware of Ameri-Cana's ongoing expansion of its motel.
We are not called upon to pinpoint the moment at which the applicant must be taken to have abandoned its bargaining rights. We are satisfied, however, that it failed to take reasonable steps to ensure that its bargaining rights were honoured throughout the period from 1973 to 1977. We find that, prior to the introduction of province-wide bargaining in 1978, the applicant had abandoned its bargaining rights for Ameri-Cana's employees.
This application is dismissed.