[1989] OLRB Rep. August 903
0821-88-R Tactix Construction Limited, Applicant v. United Brotherhood of Carpenters & Joiners of America, Local 27, Respondent v. Labourers' International Union of North America, Local 183, Intervener
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members D. A. MacDonald and H. Kobryn.
APPEARANCES: Nancy Courtney for the applicant; David McKee and Tony Bucci for the respondent; no one appearing for the intervener.
DECISION OF THE BOARD; August 21, 1989
1The applicant Tactix Construction Limited (hereafter "Tactix") is requesting a declaration under subsection 1(4) of the Labour Relations Act that it, together with Mark/Barry Holdings Limited, Stash Investments Limited and Danand Investments Inc. be treated as constituting one employer for purposes of the Act. The application was filed in support of an earlier request from Tactix for the Board to reconsider a decision by which the respondent United Brotherhood of Carpenters & Joiners of America, Local 27 (hereafter "the Carpenters Union") was certified as exclusive bargaining agent for carpenters and carpenters' apprentices employed by Tactix. Two certificates were issued to the union, one for the industrial, commercial and institutional ("ICI") sector of the construction industry in the Province of Ontario, and the other for all other sectors of the industry in the Board's geographic area #8. Tactix was seeking to have the latter certificate revoked.
2The certificate should be revoked, Tactix contended, because the Labourers' International Union of North America, Local 183 (hereafter "the Labourers' Union") held bargaining rights for carpenters and carpenters' apprentices employed by Tactix in sectors other than ICI at the time the Carpenters Union made its application for certification. According to Tactix, those bargaining rights are contained in the collective agreement between the Metropolitan Toronto Apartment Builders Association (hereafter "the MTABA") and the Labourers Union (hereafter "the MTABA Agreement") to which Tactix is bound. Tactix does not claim that it had become bound to that agreement by entering into a direct collective bargaining relationship with the Labourers' Union. Rather, it claims that it is bound to the MTABA Agreement because Mark/Barry and Stash had been bound to its 1976 predecessor and Tactix should be treated together with them and Danand as one employer for purposes of the Act.
3The Labourers' Union, also relying on the MTABA Agreement, sought standing to intervene in the application for certification to make its own request for reconsideration and revocation of the all other sectors certificate and filed an intervention in the application under subsection 1(4) of the Act. The Labourers' Union was asserting that, at the time the application for certification was made, it had exclusive bargaining rights under the MTABA Agreement for carpenters and carpenters' apprentices employed by Tactix because Tactix, through its relationship with Mark/Barry, Stash and Danand, was bound to that agreement.
4The Carpenters Union filed a reply to the Tactix application under subsection 1(4) of the Act. The Carpenters Union agreed that Tactix, Mark/Barry, Stash and Danand should be declared as constituting one employer for purposes of the Act, but it requested additional relief as follows:
(1) that Mark/Barry, Stash and Danand, which are not named either as applicants or respondents, be made respondents;
(2) that Jilsen Investments Inc. be added as a respondent;
(3) that the Board declare Mark/Barry, Stash, Danand, Jilsen and Tactix to constitute one employer for purposes of the Act;
(4) that the Board declare the five corporations to be bound to the carpenters provincial agreement in the ICI sector; and
(5) that the Board direct the five corporations to meet with the Carpenters Union, bargain in good faith and make every reasonable attempt to conclude a collective agreement with it (for all sectors except ICI in Board area #8).
5The Board dismissed Tactix' request for reconsideration without a hearing. Tactix requested reconsideration of that decision and a hearing into its application under subsection 1(4) of the Act. The Board's decision had not dealt with or determined either the subsection 1(4) application or the Labourers' Union's request for standing in and reconsideration of the Board's decision certifying the Carpenters Union. The Labourers' Union joined with Tactix in its request and asked that its own request for reconsideration be heard at the same time. However, since the issue of whether the Labourers Union held bargaining rights for carpenters and their apprentices under the MTABA Agreement was before another panel of the Board in proceedings to which both unions herein were parties, Tactix, the Carpenters Union, the Labourers Union and the other corporations agreed to adjourn all matters at issue until the bargaining rights issue was decided in the other proceedings. The issue was decided in a decision which issued December 8, 1988 and is reported in Ellis-Don Limited, [1988] OLRB Rep Dec. 1254.
6The Board in that case found that the MTABA Agreement did not establish bargaining rights for the Labourers' Union respecting carpenters and carpenters' apprentices. As soon as the decision issued, the Carpenters Union requested the Board to list the subsection 1(4) application for hearing. The other parties asked the Board to defer any hearing into the application and into the requests to reconsider and revoke the decision to certify the Carpenters Union until the Ellis-Don panel dealt with requests for reconsideration of that decision. Nonetheless, the Board did list for hearing the reconsideration requests and the subsection 1(4) application. The hearing was adjourned on consent of the parties. During the adjournment, the Ellis-Don panel refused the requests for reconsideration in a decision which issued March 7, 1989. See Ellis-Don Limited, [1989] OLRB Rep. March 234.
7Following that decision, Tactix and the Labourers' Union requested leave to withdraw their requests for reconsideration herein and Tactix asked leave to withdraw the application under subsection 1(4) of the Act. The Board directed that the reconsideration requests be withdrawn. Tactix' request to withdraw the subsection 1(4) application was supported by the Labourers' Union and other corporations, but was opposed by the Carpenters Union which asked the Board to refuse the request and to decide the application on its merits either as filed, or by making Local 27, the applicant and Tactix and the other corporations respondents. In these circumstances, the Board listed the application for hearing to allow the Carpenters Union ". . .to show cause why the Board should determine the application on its merits, or in the alternative amend the application to treat it as an application of [the Carpenters Union]".
8Counsel for the Carpenters Union submitted at the hearing that the Board should determine the application for two reasons. First, the reply was both its defence against having the Board grant relief to Tactix in the form of a declaration that Tactix was bound to the MTABA Agreement and its claim for the relief referred to above. Counsel acknowledged that the Carpenters Union could have filed its own application requesting the same relief as asked for in the reply and asked to have its application consolidated with that of Tactix. To have done so, counsel contends, would have been a change in form only and would not have altered anything of substance when compared with how the Carpenters Union chose to proceed. Counsel analogized the way the respondent has proceeded with filing a defence to a claim and a counterclaim in a civil proceeding. According to counsel, if the claim was withdrawn or dismissed, the court would still decide the counterclaim. Second, counsel submits that, were the Board to allow the application to be withdrawn without dealing with the Carpenters Union's request for relief, it would be left in a position where it would have to file its own application in order to pursue the relief, creating substantial prejudice to its interests. The prejudice would arise out of two circumstances according to counsel, the appearance of delay in making the application and a claim that the parties to the MTABA Agreement have amended it, ostensibly to make the Labourers' Union the exclusive bargaining agent for carpenters employed by employers bound to that agreement. The appearance of delay to which counsel referred was the lapse of ten months since the claim for relief was made in the reply. The prejudice would be in not knowing how the Board might deal with the lapse of time. With respect to the MTABA Agreement, the prejudice would arise were the Board to find that it had been amended to cover carpenters. Counsel's view of the Board's jurisprudence is that a finding of bargaining rights held by another union at the time a subsection 1(4) application is made would be fatal to the application.
9Counsel for Tactix argued that the application should not be decided on its merits because there was no longer any valid labour relations purpose for the Board issuing a one employer declaration. There is no mischief in the form of erosion of bargaining rights or undue fragmentation of businesses such as was referred to in Industrial Mines Installations Limited, [1972] OLRB Rep. Dec. 1029 which would cause the Board to exercise its discretion, and the Board has stated that its discretion is not to be exercised in every case where the statutory preconditions exist for it to have the discretion to make a one employer declaration. (Bramalea Carpentry Associates, [1981] OLRB Rep. July 844, at para. 11.) Counsel submits that there had been a valid labour relations purpose to the application when Tactix made it in conjunction with its request to have the Carpenters Union's certificate revoked. Tactix had claimed that it was bound by means of its association with the other corporations to the MTABA Agreement which contained pre-existing bargaining rights for the Labourers' Union in its certificate. That conflict of bargaining rights was the mischief which Tactix was seeking to have cured by a one employer declaration. The mischief evaporated when the Ellis-Don panel found that the MTABA Agreement did not include bargaining rights for carpenters. On the other hand, counsel argues, the facts alleged in the application and reply do not establish any mischief directed at the Carpenters Union on which it could rely to support its counterclaim for relief. This is because the other corporations are inactive and pose no threat to the bargaining rights held by the Carpenters Union. Absent any mischief, there is no ground on which the Board should exercise its discretion to make the one employer declaration and the other directions sought by the Carpenters Union.
10It is not argued that the Board lacks jurisdiction either to require that the application be heard on its merits or to treat it as though it had been made by the Carpenters Union. It is Tactix' position that the Board should not hear and decide the application or entertain the Carpenters Union's request for relief because there is no valid labour relations purpose to be served by the Board declaring that Tactix and the other corporations be treated as constituting one employer for purposes of the Act. That position is correct with respect to Tactix' own purpose in making the application, but not with respect to the claim for relief of the Carpenters Union.
11Its reply relies on the facts alleged by Tactix that it, Mark/Barry, Stark and Danand have at one time or another been engaged in construction under common control or direction and that one person has been active in the operations of all four corporations. The Carpenters Union has asked that Jilsen be added as a party and makes the same allegations about it. The claim for relief in the reply is based on the alleged threat to the bargaining rights for Tactix' carpenters and carpenters' apprentices posed by the other corporations which are admitted by Tactix to have carried on businesses in the construction industry and Jilsen which is alleged by the Carpenters Union to be or have been similarly engaged. Had the Carpenters Union brought its own application under subsection 1(4) alleging those circumstances, the Board would not have been prepared to say that the application did not make out a case for the relief sought without first hearing the parties' evidence. Nor would the Board have been prepared to say that the Carpenters Union's claim for relief was without any valid labour relations purpose and should not be heard. Therefore, there is nothing in the union's claim for relief that, of itself, would cause the Board to refuse to entertain it. The question, then, becomes one of whether the Board will allow the applicant to withdraw the application and require the Carpenters Union to formally reapply for the relief it seeks.
12The Board normally will not refuse a party leave to withdraw an application or complaint unless the proceeding has reached a stage where the Board will dismiss it (for examples of the latter, see the Board's Practice Note No. 7). Nor will the Board insist on an application or complaint being litigated where all the parties are content that it not continue. However, where a party is seeking relief independent of and different from the party seeking to withdraw an application, as is the case here, that request for relief should not necessarily be terminated because the other party is seeking to withdraw its own request. From a practical point of view, it would not make much labour relations sense in this case to grant leave to Tactix to withdraw its application and require the Carpenters Union formally file its own application. That would only delay matters and expose the union to the risk of the potential prejudice referred to in the submissions.
13Therefore, in these circumstances the Board will not grant leave to Tactix to withdraw its application and it will allow the Carpenters Union's request for a hearing into its own claim for relief as set out in its reply to the application. To do so is consistent with the purpose of section 31 of the Board's Rules of Procedure which states:
Subject to the giving of notice and the provision of particulars, nothing contained in sections 27 to 30 shall prevent an applicant from claiming relief under subsection 1(4) of the Act in any proceeding under the Act.
This would allow a respondent to an application under subsection 1(4) to claim relief under the subsection independent of any relief the applicant may be seeking.
14The Board finds it unnecessary at this time to decide which party or parties are to be treated as applicants and respondents. If it is a matter of dispute, or if there is any dispute about which party or parties has or have the burden of adducing "... at the hearing all facts within their knowledge that are material to the allegation" that Tactix and one or more of the other named corporations are or were under common control or direction, the parties can make their submissions on that issue at the hearing.
15In the result, in all of these circumstances, the Board will proceed as follows. The application will be listed for hearing by the Board on its merits. While employees of Tactix and the other corporations were given notice of the application, they were not given notice of the separate claim for relief made by the Carpenters Union. Therefore, the Board will fix a new terminal date for the application and employees will be given notice of the application, of the claim for relief made by the Carpenters Union and of the hearing into the application.
16Accordingly, this application is referred to the Registrar for the fixing of a terminal date, for the serving of notice in Form 32, together with a copy of this decision, on the applicant, respondent, intervener and each of the following:
Danand Investments Inc.,
Jilsen Investments Inc.,
Mark/Barry Holdings Limited,
Stash Investments Limited;
and for the serving of notice in Form 33 on the employees of:
Danand Investments Inc.,
Jilsen Investments Inc.,
Mark/Barry Holdings Limited,
Stash Investments Limited,
Tactix Construction Limited.
The notice in Form 33 is to include notice of the claim for relief made by the Carpenters Union.