[1991] OLRB Rep. April 438
0562-90-G; 0563-90-R United Brotherhood of Carpenters and Joiners of America, Local Union 93, Applicant v. Bernard Normand, B & M Millwork Ltd., and Interior Wood Installations Inc., B. J. Normand (Quebec) Ltee, Respondents
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. Trim and J. Kurchak.
APPEARANCES: S. Wailer and Neil Melanson for the applicant; Michael S. Ruddy and Bernard M. Normand for the respondent.
DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER J. TRIM: April 9, 1991
Board File No. 0562-90-G is a referral to the Board of a grievance in the construction industry, pursuant to the provisions of section 124 of the Labour Relations Act. Board File No. 0563-90-R is an application for a relief under sections 1(4) and 63 of the Act.
At the request of the applicant, "B. J. Normand (Quebec) Ltde" was added as a respondent in both applications at the hearing on January 30, 1991 (the appropriate notices in that respect had been given earlier).
At the hearing, the parties agreed that:
(a) the three corporate respondents; that is B & M Millwork Ltd., Interior Wood Installations Inc. and B. J. Normand (Quebec) Ltee., meet the statutory preconditions for a declaration under section 1(4) of the Act; that is, they carry on associated or related activities or businesses under common control or direction;
(b) the sole issue between the parties in Board File No. 0563-90-R is whether or not the Board should exercise its discretion under section 1(4) by declaring that the three corporate respondents constitute one employer for purposes of the Act;
(c) if the respondent B & M Millwork Ltd. is declared to be one employer with the other two corporate respondents the applicant's grievance in Board File No. 0562-90-G should be allowed, the Board should declare that B & M Millwork Ltd. is bound to the provincial collective agreement between the Carpenters' Employer Bargaining Agency and the Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America with respect to the industrial, commercial and institutional sector of the construction industry, and that B & M Millwork Ltd. violated that collective agreement, and that the Board should order the respondents to pay $4,922.41 in damages, for which damages they would be jointly and severally liable;
(d) if the Board does not find it appropriate to make a section 1(4) declaration with respect to B & M Millwork Ltd. as requested by the applicant, the grievance in Board File No. 0562-90-R should be dismissed;
(e) the applicant would withdraw the applications as against Bernard Normand.
In addition, the applicant indicated it was not pursuing its application under section 63 of the Act.
We note that the applicant elected to not name B. J. Normand Ltd. as a respondent in this proceeding. Notwithstanding that the applicant is therefore not entitled to any relief with respect to B.J. Normand Ltd. in this proceeding, the Board heard a great deal of evidence and argument from the applicant with respect to that company.
Before dealing with the merits of the applicant's application under section 1(4), we find it appropriate to set out two evidentiary rulings we made in the course of the hearing.
First, the applicant sought to elicit certain evidence with respect to what was said during the course of the meeting between the parties convened by the Board Officer assigned by the Board's Manager of Field Services to try to resolve the matters in dispute between them without a hearing. Upon objection by the respondents, the Board ruled such evidence to be inadmissible. Such settlement discussions are generally privileged. In addition, section 111(6) of the Act contemplates the discussions between parties and Labour Relations Officers will be confidential, although it also gives the Board the discretion to allow these to be disclosed in appropriate circumstances. The applicant asserted that the evidence which it sought to elicit related to the credibility of Bernard Normand, a principal of the respondents and their sole witness herein. We were not satisfied either that such evidence was sufficiently cogent or that there was any other basis upon which it was appropriate for the Board to exercise its discretion to permit the evidence to be adduced.
Second, after calling its first two witnesses, the applicant requested an adjournment to enable it to call Wilt Clermont, a former assistant business agent of the applicant and whose name had figured prominently in the respondent's evidence, as a witness. The first indication that the applicant had given anyone that it might seek such an adjournment was earlier that same day. The respondent opposed the applicant's request.
The applicant submitted that Clermont's evidence was necessary to its case, that the respondent would not be prejudiced by an adjournment, and that no labour relations purpose would be served by not granting one.
Both of these applications were filed with the Board on May 24, 1990. They were first scheduled to be heard on June 9, 1990. That hearing was adjourned sine die on consent of the parties. Subsequently, the applicant requested that they be scheduled for hearing again. They were so scheduled for October 31, 1990. Again the hearing was adjourned on consent of the parties and the hearing was rescheduled, in consultation with the parties, to take place on January30 and 31, 1991.
The applicant indicated that it had always intended to have Clermont available to testify and that it had been in touch with him with respect to the first two hearing dates scheduled in these matters. However, it was not apparent that the applicant had made any efforts to have Clermont present at the January 30 and 31, 1991 hearings. Indeed, apart from knowing that Clermont, who is now retired, is somewhere in Florida, the applicant did not even know where he was, how to contact him, or when, if ever, he might return to Ontario. Consequently, the applicant was unable to say when, if ever, Clermont might be available to testify.
In our view, the question was not what labour relations purpose would be served by not granting the adjournment. Rather, what labour relations purpose would be served by granting the adjournment? As the Court of Appeal has pointed out, labour relations delayed are labour relations defeated and denied (see Journal Publishing Co. of Ottawa Ltd. et al. v. Ottawa Newspaper Guild, Local 205, O.L.R.B. et al, March 31, 1977 (Ontario Court of Appeal), unreported). As the tribunal constituted to administer the Labour Relations Act, the Board must be and is sensitive to the problems of delay in labour relations matters, and the concerns often expressed in the labour relations community in that respect. As the applicant acknowledged, it did not have a right to an adjournment (see Re Flamboro Downs Holdings Ltd. and Teamsters Local 1879, (1979) 24 0. R. (2d) 400 (Div. Ct.) in that respect). Accordingly, and as is well known in the labour relations community, the Board will generally refuse to grant an adjournment except on consent of the parties or if it is satisfied that there are exceptional extenuating circumstances (see for example Teledyne Industries Canada Limited, [1986] OLRB Rep. Oct. 1441, among many others). Local 93 had long known that Clermont's evidence might be necessary. The applicant had specifically agreed to the January 30 and 31, 1991 hearing dates but had made no reasonable efforts to obtain Clermont's attendance at the hearing, and offered no cogent explanation for its failure to do so.
In the circumstances, the Board was not satisfied that there was any cogent basis upon which it was appropriate for it to exercise its discretion in the manner requested by Local 93 and its request for an adjournment was therefore denied.
Because the parties agreed that the respondents carry on associated or related activities or businesses under common control or direction, we find it unnecessary to review in detail the evidence which the Board heard in that respect. Suffice to say that Bernard Normand exercises the common control or direction. B.J. Normand Ltd. (which is not a respondent herein) was incorporated in 1961. It has been a signatory to the Carpenters' provincial agreement for approximately 20 years. In the industrial, commercial and institutional ("ICI") sector of the construction industry, it performs dry wall, steel studding, t-bar ceiling and stucco work on a sub-contract basis. It also does some stucco work in the residential sector.
B.J. Normand (Quebec) Lt6e. was formed in 1976. Since 1981 Bernard Normand has been the sole shareholder and since June 1982 he has been its sole officer and director. This company was incorporated to carry on business in the Province of Quebec and to do the same type of work that B.J. Normand Ltd. does in Ontario. B.J. Normand (Quebec) Ltde. has never done business in Ontario.
B & M Millwork Ltd. ("B & M") was incorporated in June 1986. Bernard Normand's wife is its sole shareholder but he is that company's president and directing mind. It is not bound by any collective agreements. The company is in the business of manufacturing (in its shop) and installing millwork (such as kitchen cabinets). Some sixty per cent of its work is in the ICI sector and the balance is in the residential sector. According to Normand, ninety per cent of B & M's work is manufacturing and ten per cent is trucking and installation. Normand purchased the equipment used by B & M from Malcolm Duys in Quebec and persuaded Duys to stay on to manage the company in Ontario until February 1989 when Duys returned to Holland.
Interior Wood Installations Inc. (or "Interior") was originally incorporated on March 9, 1989 as 818861 Ontario Inc. On May 8, 1989, it became Interior Wood Installations Inc. It is the circumstances under which what became Interior came into being which are at the core of the dispute between the parties.
There is no dispute with respect to a number of the material facts in that regard. In October 1988, Thomas Fuller Construction Co. (1958) Limited ("Fuller Construction") sub-contracted some work to B .J. Normand Ltd. and some other, unrelated, work to B & M on its Cumberland Town Hall project. When the applicant learned of B & M's presence on the job site it filed a grievance against Fuller Construction which is bound to the Carpenters' Provincial agreement which covers such work. The grievance alleged that Fuller Construction had violated the collective agreement by subcontracting work to a non-union employer. The parties stipulated that this grievance was with respect to B & M and its presence on the Cumberland Town Hall job site. Because of the stage of the project, Fuller Construction was anxious to have B & M complete its work if possible. Similarly, B & M wanted to complete the work and the applicant wanted to ensure that the work was done by its members under its provincial agreement. After some discussions between the parties, Fuller Construction agreed to pay $24,000 to the applicant in settlement of the grievance and Normand caused 818861 Ontario Inc. to be incorporated. This company immediately entered into a voluntary recognition agreement with the Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America, on its own behalf land on behalf of the United Brotherhood of Carpenters and Joiners of America, and its available bargaining agents (of which affiliated bargaining agents the applicant is one of) and which we will hereinafter refer to as the "EBA". Pursuant to the agreement, the company recognized the EBA and its affiliated bargaining agents as the exclusive bargaining agent for all journeymen and apprentice carpenters, other than millwrights, employed by it in the ICI sector of the construction industry in the Province of Ontario. The numbered company and the EBA also specifically agreed that their agreement constituted a voluntary agreement within the meaning of the Labour Relations Act and that the company would be bound by the Provincial agreement between the Carpenters' Employer Bargaining Agency and the EBA.
818861 Ontario Inc. then completed the installation work which had been begun by B & M on the Cumberland Town Hall job site. To do so, it used three men who had been employed at the job site by B & M and who were accepted into membership by the applicant, and two men referred to it from the applicant's hiring hall.
B.J. Normand Ltd. and B & M have been active in the construction industry since that time. The numbered company, or Interior as it is now known, has not been active since it finished work on the Cumberland Town Hall job site in late April or early May 1989. The parties part company with respect to what was intended by the agreement which led to the creation of what is now Interior.
Bernard Normand testified that 818861 Ontario Inc. was incorporated in response to the applicant's grievance against Fuller Construction and for the specific purpose of completing the installation on the Cumberland Town Hall job site of millwork manufactured by B & M, which installation work had been begun by B & M. He testified that although the numbered company's agreement with the EBA was for that one job, he later developed the notion that it could be used to install B & M manufactured millwork in other similar circumstances; that is, on other unionized job sites. He caused the numbered company to be renamed Interior because he thought it would be better for business purposes if the company had a name rather than a number. Normand testified that it was his intention and understanding that B & M would be completely unaffected by the arrangement which led to the incorporation of 818861 Ontario Inc. and its agreement with the EBA. He testified that he had expressed his concerns to Clermont and received the assurances he sought in that respect.
Claude Cournoyer described himself as a representative of the General President of the United Brotherhood of Carpenters and Joiners of America. As such, he controlled the applicant's affairs from August 1988 to March or April 1990 and was responsible for the filing and resolution of the grievance against Fuller Construction as aforesaid. He was directly involved in making the arrangements for the agreement between 818861 Ontario Inc. and the EBA. Indeed, he signed that agreement on behalf of the EBA. Notwithstanding his direct involvement, Cournoyer's recollection of the grievance was unclear. Indeed, he was unable to recall either what the grievance concerned or even if it related to B & M. He also indicated that he had spoken with Tom Fuller (President of Fuller Construction) with respect to the grievance, which he could not have done since Fuller was out of the country at the time. Nor was Cournoyer able to recall who else he spoke with about the grievance or who he met with at the hearing at the applicant's offices between the parties with respect to the matter. His recollection of what was discussed, either by telephone or at the meeting was similarly vague. However, Cournoyer testified that Clermont did not have the authority to give the assurances Normand alleged he had, and that he understood that the agreement between the numbered company and the EBA meant that the numbered company would do all subsequent installation of B & M manufactured millwork, whether on unionized job sites or otherwise. However, he conceded that there was no specific mention of future work in the discussions between the parties and that, at best, he had contemplated that the numbered company would do all installation work on unionized job sites. He also conceded that there was no reason to incorporate a new company if all future installation work was to be done under the provincial agreement. Cournoyer claimed to be unaware that 818861 Ontario Inc. had no employees at the time it entered into the agreement with the EBA, or of the arrangement regarding the persons who completed the installation of B & M manufactured millwork on the Cumberland Town Hall job site as employees of the numbered company.
Wilfred Chretien was the applicant's business manager during the material times. He is now retired. It is evident from his testimony before the Board that his memory of events in 1989 is flawed. For example, he was unable to make the connection between the grievance against Fuller Construction regarding the Cumberland Town Hall job site and which led to the incorporation of 818861 Ontario Inc., and B & M. In addition he had little direct involvement in the events material to these proceedings and particularly in a pivotal meeting between the parties in March 1989. His testimony both in that respect and generally was vague and confused.
William Fuller is the President of Fuller Construction. His testimony with respect to the events surrounding events in February and early March regarding the applicant's grievance with respect to the Cumberland Town Hall job site, and its resolution, was clear and unequivocal. He testified that, in early March 1989, he met with Malcolm Duys and Claude Cournoyer at the applicant's office (he said that Chretien was present part of the time). The purpose of his attendance on behalf of Fuller Construction was twofold: to settle the grievance and to see if an arrangement could be arrived at to allow B & M to complete the work it had begun. Although the formal agreement came later, the grievance was resolved on the basis that Fuller Construction would pay $24,000 to the applicant and the remaining work would be done in accordance with the provisions of the applicant's provincial agreement. Fuller testified that Cournoyer offered to options with respect to B & M:
(a) that B & M itself sign a collective agreement (which option was rejected by B & M because it did not want to become bound to a collective agreement); or
(b) enter into an arrangement whereby B & M's shop and operations on non-unionized job sites would be unaffected but which would enable it to complete its work for Fuller Construction on the Cumberland Town Hall job site.
Although he was not present during discussions regarding the details of how the second option, which was accepted by B & M, would be accomplished, Fuller testified that it was Cournoyer who suggested that a new company could be incorporated.
- Section 1(4) of the Act provides that:
(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.
Section 1(4) modifies, for labour relations purposes, the common-law notion of privity of contract and commercial law assumptions based on the separation of legal identities between corporations. It contemplates that the corporate veil may be pierced for purposes of the Labour Relations Act in circumstances where two or more otherwise distinct legal entities are engaged in related economic activities under common control or direction such that they should be treated as one employer for purposes of the Act.
The purpose of section 1(4) is to preserve the integrity of bargaining rights and collective bargaining from the disruptions which might be caused by changes in corporate form or structure. As a result, collective bargaining rights need not be congruent with the corporate framework.
The classic example of the mischief which section 1(4) is designed to remedy is when an employer bound to a collective agreement seeks to avoid the restrictions of the collective agreement by forming another company to carry on essentially the same business (see, for example, Napev Construction Ltd., [1976] OLRB Rep. Mar. 109 (application for judicial review dismissed by the Divisional Court on May 24, 1977, unreported), B rant Erecting and Hoisting, [1980] OLRB Rep. July 945 and Oct. 1353, Roy Brandon Construction, [1981] OLRB Rep. Feb. 219 and Metro Century Construction Ltd., [1983] OLRB Rep. July 1122). However, section 1(4) is neither an unfair labour practice nor a "penalty" provision. It also applies to bona fide commercial transactions or restructuring which affect established rights under the Labour Relations Act, whether the impact thereof is direct or incidental.
Like many employers before them, the respondents in this proceeding argued that a trade union should not be allowed to use section 1(4) as a substitute for certification. Indeed, there are a number of decisions in which the Board has indicated that it will not exercise its discretion under section 1(4) in circumstances where it would amount to allowing the trade union to use it as a substitute for certification (see, for example, Harold R. Stark Ltd., [1978] OLRB Rep. Oct. 945, Acto Builders (Eastern) Ltd., [1979] OLRB Rep. June 465, WMI Waste Management of Canada Inc., [19811 OLRB Rep. Mar. 409), particularly where a previous application for certification by the same applicant did not succeed (as in D. L. Stephens Contracting Niagara Ltd., [1978] OLRB June 531), or where there was no evidence of any erosion of bargaining rights (as in, for example, Ellwall & Sons Construction Ltd., [1978] OLRB Rep. June 535 and Subito Contracting (Drywall & Painting) Co. Ltd. [1981] OLRB Rep. Oct. 1494).
Having regard to the purpose of section 1(4) and for the reasons suggested at paragraph 15 of Great Atlantic and Pacific Company of Canada Limited, [1981] OLRB Rep. Mar. 285, we attach little significance to any distinction between an application for certification and a request for relief under section 1(4). There is nothing in the Act which suggests that such a distinction is appropriate. On the contrary, section 1(4) was added to a pre-existing statutory scheme which already included a certification process. It was intended to stand on its own as an independent basis for relief and circumstances for existing bargaining rights for impaired or otherwise threatened by corporate adjustments.
The Board's power under section 1(4) is discretionary. A declaration will not necessarily follow in every case in which its statutory preconditions are satisfied. In exercising its discretion under section 1(4), the Board must consider the purpose of the provision in the context of the case before it.
In argument, counsel for the applicant stated that B.J. Normand Ltd. is bound to the Carpenters provincial agreement and that if it had been used to perform the installation work on the Cumberland Town Hall job site begun by B & M and completed by 818861 Ontario Inc., they would have had to do so in accordance with that collective agreement. He pointed out that B & M came to the applicant's attention as a non-union sub-contractor on a unionized job site and he argued that the installation work in question should have been done under the collective agreement using members of the applicant because Fuller Construction was a unionized contractor and because B & M is related to B.J. Normand Ltd. Counsel suggested that the respondent's assertion that a declaration under section 1(4) is inappropriate is merely wishful thinking.
The applicant's argument is seriously flawed. There is nothing in the evidence before the Board which suggests either that B.J. Normand Ltd. has ever performed any installation work of the kind in question here, or that it should have done so on the Cumberland Town Hall job site. In addition, the applicant consciously chose to not make B.J. Normand Ltd. a respondent in these proceedings and there is no agreement or decision of the Board (or anything else) to the effect that B & M and B.J. Normand Ltd. are related in a manner such that they should be considered to be one employer for purposes of the Act or for the purposes of this application.
Of the cases referred to in arguing by counsel for the applicant, Stebill Limited, [1989] OLRB Rep. Apr. 384, Eighty-Five Electric, [1987] OLRB Rep. June 833, Frank Plastina Investments Ltd., [1986] OLRB Rep. June 720, and Penka Carpentry Limited, [1985] OLRB Rep. May 711 were not "discretion" cases as such and are of little assistance to us in this case. In Warren Steeplejacks Limited, [1989] OLRB Rep. Mar. 309, the Board was urged by at least one of the respondent employers to not exercise its discretion under section 1(4) because doing so would extend rather than preserve the trade union's bargaining rights. Although the Board did find it appropriate to issue the requested declaration in that case, the circumstances were not analogous to those before the Board in these proceedings.
The authorities cited for counsel by the respondents were more apposite to the circumstances before us. The Board's decisions in Bramalea Carpentry Associates, [1981] OLRB Rep. July 844, Gerald Davidson Plumbing & Heating, [1984] OLRB Rep. Mar. 462 and ValIance & Levy Eng. Contractors Ltd., Board File No. 2403-83-M, August 16, 1984, unreported), demonstrate that the Board has not found it appropriate to make a section 1(4) declaration in circumstances where a non-unionized company pre-exists a company which is incorporated by the same principal(s) and voluntarily enters into a collective bargaining relationship with a trade union in order to be in a position to perform work on unionized job sites, where there is no common pool of employees (as there was in Industrial Mine Installations Limited, [1972] OLRB Rep. Dec. 1029, for example) or interchange of employees between them and there is no indication that work destined for the unionized company has been diverted to the non-union company or that the non-union company has been surreptitiously used on unionized job sites to the detriment of the unionized company and the trade union. It is also evident from the jurisprudence that the Board does not look favourably upon an applicant which seeks a section in a 1(4) declaration after first participating in the very corporate restructuring which is the object of its application.
Upon assessing the testimony and the demeanour of the witnesses, we find ourselves unable to give Chretien's evidence any weight except where it is corroborated by other reliable evidence. Similarly, Cournoyer's evidence was unsatisfactory. It was vague, very generalized, and tended to be inconsistent with the objective facts. On the other hand, we found William Fuller to be a very credible and reliable witness. Fuller's testimony supplements and corroborates that part of Normand's evidence which conflicts of the evidence of Conway or which is otherwise challenged by the applicant.
On the basis of the evidence before the Board, we are satisfied that the non-unionized B & M pre-existed 818861 Ontario Inc. which latter company was created with the knowledge and active agreement of the applicant. After entering into a voluntary recognition agreement at a time when the newly created company had no employees, 818861 Ontario Inc. and the applicant entered into an arrangement whereby employees of B & M who had been on the Cumberland Town Hall job site became employees of the numbered company and were admitted into membership by the applicant, and two new employees were referred to the company by the applicant from its hiring hall (which suggests that the applicant must have known the numbered company had no employees when it entered into the voluntary recognition agreement). The arrangement between the parties applied specifically to the Cumberland Town Hall job site and, to the extent that it was considered at all, contemplated at most that the numbered company (now Interior) would do the installation of B & M manufactured millwork on unionized job sites while B & M would operate as before on non-unionized job sites. It was neither the agreement nor the intention of the parties that all future installation work would be done by the numbered company (Interior) and it was only the numbered company which the parties intended would be bound by the voluntary recognition agreement entered into by it and the EBA. Although there is some suggestion of it in the evidence, we are not satisfied, on a balance of probabilities, that any work destined for Interior has been redirected to B & M in a manner which has "eroded" or otherwise threatened the applicant's bargaining rights, or at all. Indeed, we observe that the applicant could adequately protect its bargaining rights in circumstances where Interior operates on a unionized job site by filing the appropriate grievance against the unionized general contractor.
In the result, we are not satisfied that this is a case in which it would be appropriate for the Board to issue the section 1(4) declaration sought by the applicant and we decline to do so. The application in Board File No. 0563-90-R is therefore dismissed.
Accordingly, and having regard to the agreement of the parties, the grievance in Board File No. 0562-90-G is also dismissed.
DECISION OF BOARD MEMBER J. KURCHAK; April 9, 1991
I dissent. In my opinion, the Board should have exercised its discretion and granted the section 1(4) declaration as requested by the applicant.
In reviewing the evidence, several issues stand out:
(a) It seemed that the absence of Wilfred Clermont, the assistant business representative of the Local Union, at the time the Provincial Agreement was signed by B. M. Normand and Claude Cournoyer, was made to be a crucial issue at the hearing;
(b) A "deal" was said to have been made between W. Clermont, and B. Normand regarding the extent of the Agreement. Was it to terminate at the end of the Cumberland Town Centre project? Was it to extend to only "Union" jobs, or was it to be applied to all ICI projects in the future?
In my opinion, I don't think that W. Clermont's testimony was particularly needed. If he was to be there to deny B. Normand's claim that a "deal" was made with him regarding a "one shot deal", then it would have been of no consequence, since a site agreement is not in accordance with the Ontario Labour Relations Act. This aside from the fact that the man had no authority to make deals.
The issue of whether the agreement extended to all ICI projects, or exclusively to union jobs in the future, was dealt with by C. Cournoyer, & B. Normand's partner, Malcolm Days. Of the two, only Cournoyer was at the hearing as a witness. Although his memory was bad, the probability is slim indeed that he agreed to, or suggested a double-breasted operation. His testimony that the Agreement was signed to cover all future installations is consistent with normal practice in the industry as I have known it over many years. Then again, of course, W. Clermont is the one who was supposed to have made the "deal". Cournoyer suggested the "second option" of using a numbered company, to appease Malcolm Days' concerns about the agreement extending to his "shop" work. This constituted about 90% of B & M Millwork's operations.
On the question of future "union" jobs, the issue becomes hazy. Whether the agreement covers those projects seems somewhat lost at this point. The respondents did acknowledge that at least this work was covered, in this reply to the 1(4) application. In paragraph 9 of their Schedule "A" it states:
.was accordingly agreed that in the future, and to avoid the same type of difficulties which arose on the Town Hall project, whenever B & M Millwork Ltd. was engaged on a project on which members of the Union were required to be employed as directed by the General Contractor or otherwise, the said work would be carried out by 818861 Ontario Inc. with unionized labour in accordance with the Carpenters Provincial Collective Agreement. B & M Millwork Ltd. and 818861 Ontario Inc. and its successor Interior Wood Installations Inc. have complied with its agreement with the Applicant in all respects. The Applicant ought not now be permitted to undermine the agreement arrived at and ought to be compelled to honour its obligations under the agreement arrived at.
[my emphasis added]
The current grievance against the Respondents, lodged by Local 93, deals with work performed on a union job at the Lord Elgin Hotel. This is with Dillan Construction, a General Contractor under agreement with the Carpenters' Provincial Council. A settlement of $4,922.41 was reached by the parties to resolve the grievance. A section 1(4) declaration will determine whether or not it will be paid.
Further, I believe that there were extenuating circumstances that should be considered in this determination. C. Cournoyer was appointed as a Trustee to take charge of the Local. This, in itself, indicated trouble. He discharged W. Clermont, (the missing witness) who was an officer of the Local for thirteen years. W. Clermont was re-instated, by action of the membership, six months later. Such internal disruptions can only have a serious affect on how a union functions. The consequences could be serious if external problems are not properly addressed. A lack of proper response to labour-management related issues could be detrimental to the membership and to the industry concerned. In the case at hand, B & M Millwork, a non-union carpentry sub-contractor was on a union project for about three months before action was taken. My experience tells me that something indeed was wrong. This, particularly in view of the fact that B. J. Normand Limited, a union contractor under the Carpenters' Provincial Agreement, was engaged on the same project. A section 1(4) application was in order, and I believe, would have been successful if properly processed.
I believe that all of this should be taken into consideration. In my opinion, from a practical labour-relations point of view, the Board should have exercised its discretion under section 1(4) of the Act, by declaring that the (three) corporate respondents constitute one employer for purposes of the Act.