Labourers' International Union of North America, Ontario Provincial District Council v. 713537 Ontario Inc. c.o.b. as H.T. Lawrence Excavating
[1991] OLRB Rep. October 1160
2156-90-R; 2402-90-R Labourers' International Union of North America, Ontario Provincial District Council, Applicant v. 713537 Ontario Inc. c.o.b. as H.T. Lawrence Excavating, Respondent; Labourers' International Union of North America, Ontario Provincial District Council, Applicant v. 713537 Ontario Inc. c.o.b. as H.T. Lawrence Excavating and 756298 Ontario Ltd. c.o.b. as Lawrence Construction, Respondents
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members W. H. Wightman and P. V. Grasso.
APPEARANCES: Elizabeth Mitchell, Robert Leone and James Rodey for the applicant; W. R. Her-ridge, Q. C. and Domenic Vozza for the respondents
DECISION OF VICE-CHAIR, INGE M. STAMP AND BOARD MEMBER, P. V. GRASSO; October 28, 1991
[1]. This is an application for certification (Board File No. 2156-90-R) in which the respondent 713537 Ontario Inc. c.o.b. as H.T. Lawrence Excavating (hereinafter referred to as "Excavating") takes the position that it is not the employer of the employees affected by this application.
[2]. In its reply Excavating stated its business is "construction management" and that "no unit of labourers is appropriate since the respondent does not employ labourers." The reply further stated that "Respondent believes applicant is making application for certification for the wrong company."
[3]. The applicant requested relief under section 63/1(4) of the Act (Board File No. 2402-90-R). It is the applicant's position there has been either a sale of a business between Excavating and 756298 Ontario Ltd. c.o.b. as Lawrence Construction (hereinafter referred to as "Lawrence Construction") or that these two entities are one employer for the purpose of the Labour Relations Act and are carrying on associated or related businesses or activities under common direction and control within the meaning of section 1(4) of the Act.
[4]. At the hearing of these matters counsel for the respondents submitted that in the present circumstances section 1(4) is inherently inapplicable as the purpose of section 1(4) is not to expand a union's bargaining rights but to prevent erosion of the union's bargaining rights. Counsel disagreed with the Atway Transport Inc. decision, [1989] OLRB Rep. Feb. 101. Counsel submits the Board in Atway, (supra) proceeded on a wrong principle. A rule of the Board's should not be interpreted as to alter the meaning of a statutory provision. It is the statutory provision that governs and the rule is subordinate to it.
[5]. Counsel for the respondent refers the Board to Landmark Contracting Ltd., [June 1990] OLRB Rep. 660 which refers to the decision in The John Hayman & Sons