[1990] OLRB Rep. November 1119
2527-86-R Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Century Store Fixtures Ltd., Century Interiors Ltd., Jasper Construction Inc., Respondents
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members W. Gibson and C. A. Ballentine.
APPEARANCES: David McKee and Dorrington Smith for the applicant; Michael Horan, F. Appugliesi and Carlo Osselome for Century Store Fixtures Ltd. and Century Interiors Ltd.; Walter Thornton and John Appugliesi for Jasper Construction Inc.
DECISION OF THE BOARD; November 9, 1990
The applicant is applying under section 1(4) of the Labour Relations Act for a declaration that the respondents are to be treated as one employer for purposes of the Act. The applicant further seeks a declaration that the respondent Jasper Construction Inc. (hereinafter referred to as "Jasper") is bound to the provincial collective agreement in the ICI sector of the construction industry.
The parties submitted a statement of agreed facts which was supplemented by viva voce evidence and numerous documents relating to the respondents' businesses. Highlights of the agreed facts and a history of the parties' proceedings are set out below. The parties were substantially in agreement on the facts which are material to this application.
Century Store Fixtures Ltd. ("hereinafter referred to as CSF or Century") was incorporated effective July 25, 1978. At this time CSF manufactured store fixtures at its shop and also performed general interior construction, including the installation of the store fixtures it manufactured. On July 17, 1979 CSF executed a short form collective agreement binding it to the carpenters' provincial collective agreement.
Jasper was incorporated on December 3, 1982 as a general contractor.
On May 2, 1986, Century Interiors Ltd. ("hereinafter referred to as CIL or Century") was incorporated. The function of CIL was to take over the construction portion of CSF's business. CIL advised the applicant, by letter dated July 8, 1986, that Century Interiors Ltd. was the new name for Century Store Fixtures Ltd.
On May 30, 1984, the Board, differently constituted, dismissed (on consent) a section
1(4) application brought by the applicant with respect to the above-named respondents and Jascan
Properties Inc. ("hereinafter referred to as "Jascan").
By decision dated September 26, 1988, the Board, differently constituted in part, dismissed an application for certification with respect to Jasper.
Jasper is a partnership owned by the Appugliesi and the DeGasperis families. Century is owned by the Appugliesi family exclusively.
The events that led to the filing of this section 1(4) application and the application for certification with respect to Jasper, referred to in paragraph 7 above, occurred in 1986. A number of carpenters hired through the Carpenters Hiring Hall and dispatched to Century wound up working on Jasper sites. Their time was kept by a Jasper supervisory person and sent to Century who then billed Jasper for the labour supplied to Jasper. The work performed by these carpenters is described in the Statement of Agreed Facts under paragraph 16(m) as follows:
(m) The work performed at the sites referenced in paragraph 16(f) was general carpentry including the making of templates, the setting of anchor bolts on concrete casings, the building of roof trusess [sic] the building of eaves and soffits around the edge of a roof, erecting of walls and partitions and placing of plywood sheathing on roofs. It did not include interior work.
The carpenters were directed by Jasper, the general contractor on the jobsite, transferred to other sites and laid off when the work was completed.
The Board, differently constituted in part, in paragraph 25 of its decision dated September 26, 1988 dealing with the certification application, found:
The three carpenters in question had no doubt whatsoever as to who their employer was. They knew they were employed by the intervener [Century]. It was the evidence of one of the carpenters that he assumed "Vince", the person noted on the referral slip, was with Century, since Century was the company that had hired him.
The referral slips for the carpenters were made out to "Century Store", "Century" and "Century Store Fix" and instructed the carpenters to "see Vince".
The carpenters were hired through the union hiring hall and paid by Century in accordance with the provincial collective agreement.
Century is an interior contractor who also is in the manufacturing business. Century does a large volume of business with Jasper and Jascan and has a number of other clients such as Kinney Shoes, Cadillac Fairview, Canada Trust, Bulk Barn Foods, Miracle Food Mart and others. Contracts varied from labour only to time and material to lump sum. The business of Jasper on the other hand is that of a general contractor.
Counsel for the applicant submits that the Board should declare the respondents one employer under the Labour Relations Act because Century engaged in the general contracting business when its carpenters worked on the Jasper sites. Century was not doing interior work. Both Jasper and Century are engaged in the same enterprise, that of general contracting. The control exercised by Jasper was such that Jasper determined the employment relationship. The applicant contends that Century is doing a portion of the general contractor's work, in a manner which is not in a contractor and sub-contractor relationship, but in an associated and related way of carrying on the business with common control and direction at the top and on the jobsite.
The applicant submits that it is concerned with the preservation of bargaining rights. In terms of a simple section 1(4), this is not a case of Jasper being bound and using Century. It is the other way around. There are not the same institutional interests of the trade union in this case but there is an issue that goes to the nature of the construction industry. In Industrial-Mine Installations Limited, [1972] OLRB Rep. Dec. 1029, para. 10, the Board found as follows:
Prior to the enactment of section 1(4), where such situations existed, it was difficult to define the employment relationship and to determine the proper employer for certain purposes under the Act. For example, in certification proceedings it was necessary to determine the proper employer in order to determine whether the union had sufficient membership among the employees to be certified.
When Century has so little control and Jasper is so dominant in the employment relationship, the control is in the hands of someone who is not bound by that collective agreement.
The applicant submits there are two companies carrying on associated or related activities, to the extent that the control of that portion of Century's business is in Jasper's hands. There is a threat to the bargaining rights with respect to Century.
Cases cited by the applicant in support of its position include: Frank Plastina Investments Ltd.,[1986] OLRB Rep. June 720; Warren Steeplejacks Limited, [1989] OLRB Rep. March 309; Stebill Limited, [1989] OLRB Rep. Apr. 384; Del Zotto Enterprises Limited, [1974] OLRB Rep. Aug. 533; J.H. Normick Inc., [1979] OLRB Rep. Dec. 1176; Donald A. Foley Limited, [1980] OLRB Rep. Apr. 436; Corp. of the City of Stratford, [1985] OLRB Rep. June 923; Industrial Mine Installations Limited, supra; United Shelters Ltd., [1981] OLRB Rep. June 796; Brink's Canada Limited, [1987] OLRB Rep. May 647.
The applicant submits that the Board should exercise its discretion because of the possibility of problems and the loss of opportunity in the employment relationship because of the lack of control which Century was able to exercise over the jobsites. There is a danger when there is a payroll problem, such as with Felix Brown, that Jasper might just say "get lost". It might have happened.
Counsel for Jasper submits that these are not related or associated businesses. He argues that the respondents have totally different clients or customers and the law in the cases cited support the finding that these businesses are not related or associated. The four jobs described in paragraph 16(f) of the Statement of Agreed Facts are not representative. Jasper's revenue in the relevant period was twenty-six million dollars, in relation to that of Century's, which was two million dollars. Counsel relies on two decisions, Candesco (1978) Ltd.,[1985] OLRB Rep. Jan. 44 and Arbis Construction Ltd., [1983] OLRB Rep. Dec. 1959. Counsel submits that Jasper's business is quite separate from Century's. The facts in Frank Plastina Investments Ltd., supra, do not exist here. The businesses have developed separately and do not rely on one another as a source of business.
Section 1(4) states:
1.-(4) Where, in the opinion of the Board, associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions concerned, treat the corporations, individuals, firms, syndicates or associations or any combination thereof as constituting one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate.
- In Walters Lithographing Company Limited, [1971] OLRB Rep. July 406, the Board set out certain indicia for making determinations with respect to section 1(4) of the Act. These are: (1) common ownership or financial control, (2) common management, (3) interrelationship of operations, (4) representation to the public as a single integrated enterprise, and (5) centralized control of labour relations. Before the Board may exercise its discretion under section 1(4) there are certain statutory prerequisites. These are:
(1) There is more than one entity, i.e., corporation, individual, firm, syndicate, association or any combination of these things.
(2) These entities are engaged in associated or related activities.
(3) The entities are under common direction or under common control.
With respect to the requirement that the entities be under common direction and control, only Century is owned solely by the Appugliesi family, while Jasper is owned by the DeGas-pens and Appugliesi families.
The Board in paragraph 14 of Arbis Construction Ltd., [1983] OLRB Rep. Dec. 1959 has addressed the question of "associated or related" as follows:
The question of whether Arbis and Mar are "associated or related" requires the Board to consider the nature of their business activities. As the Board pointed out earlier, Arbis and Mar are engaged in different aspects of property development and construction. As the Board stated in Brant Erecting and Hoisting, [1980] OLRB Rep. July 945, businesses or activities are "related" or "associated" because they are of the same character, serve the same general market, employ the same mode and means of production, utilize similar employee skills and are carried on for the benefit of related principals. In our view, Arbis and Mar are neither of the same character nor serve the same general market.
Jasper is a general contractor who has been in business since 1982. Century has been in business since 1978. The business of Century since inception has been to manufacture and install store fixtures. There is no evidence to suggest that Jasper has any interest in becoming a specialty contractor manufacturing and installing store fixtures. It is Century who signed a voluntary recognition agreement giving bargaining rights to the Carpenters. There is absolutely no evidence to suggest that Century was trying to avoid its obligation under the collective agreement by having Century's carpenters working on Jasper sites and being supervised by Jasper in its capacity as the general contractor on site. At no time was there any misunderstanding as to whose employees these, carpenters were, either by the employees themselves, Jasper or the dispatcher of the hiring hall. The Board, differently constituted in part, in its decision in the application for certification arising out of the same circumstances stated:
It is not unusual in the construction industry for the general contractor to supervise sub-trades. It is also not unusual for tradesmen to be "loaned out". The criteria used to determine who exercises fundamental or overriding control rather than immediate control is somewhat different in the construction industry due to the transitory nature of the industry and the requirement for unionized contractors to hire through the hiring hail. Even though the respondent's representative called the union's hiring hall and was the person named on the referral slip, there was no doubt in the minds of the dispatcher (as indicated by the referral naming the intervener as the employer) nor the employees who were emphatic that they worked for the intervener.
There is no significance in the circumstances of this particular situation that the respondent's representatives advised the employees that the job was completed. Construction workers generally are quite aware when a given project or work assignment nears completion and would attach no more significance to it other than "the job is finished" as it was in this case.
- The relationship between the intervener and the respondent, by virtue of their personal relationship, is close and some of the business transactions between the respondent and the intervener are somewhat casual, but they are however separate entities who carry on their separate businesses. Both entities have separate WCB numbers and treat their direct-hire employees differently. There was no evidence of any carpenters other than those employed by sub-contractors. In the case before us, there was no improper purpose nor any attempt to circumvent the collective agreement.
The intervener referred to in the certification application above is Century, the respondent is Jasper.
At all relevant times the employment relationship of the carpenters working on the Jasper sites was covered by the collective agreement between Century and the applicant. More importantly, the employees were never in any doubt as to who their employer was. In paragraph 26 of the decision (differently constituted in part) in the application for certification the Board found as follows:
No intention to create an employment relationship exists in this case. The three carpenters were dispatched from the hiring hail to a union contractor who had been in a contractual relationship with the union for some time. The carpenters would not have worked for the respondent under conditions of employment as existed for example for Mr. Theriault.
In the cases cited by the applicant there is either real or potential erosion of bargaining rights. This is not the case before us. In the instant case the unionized firm is not directing work to a non-union firm. The union's bargaining rights with respect to Century are in no danger. At all relevant times Century's carpenters were covered by the collective agreement. Any opportunity Century has to perform carpentry work for Jasper, or any other general contractor, is work that is covered by the collective agreement between Century and the applicant.
The fact that carpenters employed by Century (as the Board had found in the certification application) did "general" carpentry work does not make Century a general contractor. The market for the manufacture and installation of store fixtures is not the same market as that of a general contractor. These businesses operate in different aspects of the construction industry. This section 1(4) application would extend bargaining rights rather than protect the existing bargaining rights held by the applicant with respect to Century. There is no evidence that Jasper is going into the business of manufacturing and installing store fixtures. However, even if Century were to act as a general contractor, Century is bound to the Carpenters' provincial agreement and the applicant holds bargaining rights for Century regardless of the type of carpentry work performed by Century.
Accordingly, the application under section 1(4) is hereby dismissed.