International Brotherhood of Painters and Allied Trades, Local 200 v. Preston & Lieff Glass Limited, 1991 CanLII 6091

[1991] OLRB Rep. March 373

0515-90-R; 2297-90-U; 2298-90-U; 2467-90-G; 2555-90-G; 3072-89-G International Brotherhood of Painters and Allied Trades, Local 200, Applicant v. Preston & Lieff Glass Limited, Preston & Lieff Glass Contracts Inc., Preston & Lieff Glass (1988) Limited, Preston & Lieff Door Ltd., Respondents; International Brotherhood of Painters and Allied Trades, Local 200, Complainant v. Preston & Lieff Glass Limited, Preston & Lieff Glass Contracts Inc., Preston & Lieff Glass (1988) Limited, Respondents; International Brotherhood of Painters and Allied Trades, Local 200, Complainant v. Preston & Lieff Glass Limited, Preston & Lieff Glass Contracts Inc., Preston & Lieff Glass (1988) Limited, Respondents; International Brotherhood of Painters and Allied Trades, Local 200, Applicant v. Preston & Lieff Glass Limited, Preston & Lieff Glass Contracts Inc., Preston & Lieff Glass (1988) Limited, Preston & Lieff Door Ltd., Respondents; International Brother­hood of Painters and Allied Trades, Local 200, Ottawa, Applicant v. Preston & Lieff Glass Ltd., Respondent; International Brotherhood of Painters and Allied Trades, Local 200, Applicant v. Preston & Lieff Glass Ltd., Respondent

BEFORE: Inge M. Stamp, Vice-Chair, and Board Members D. A. MacDonald and H. Kobryn.

APPEARANCES: S. B. D. Wahl, R. Tier and G. Caroline for the applicant/complainant; no one appearing for the respondents.

DECISION OF THE BOARD; March 19, 1991

[1]. These are a series of related matters. On the day scheduled for hearing no-one appeared on behalf of the respondents. The Board waited its customary half hour until 10:00 a.m. before proceeding with these matters. The Board's hearing notices clearly state:

"IF YOU DO NOT ATTEND AT THE HEARING, THE BOARD MAY PROCEED IN YOUR ABSENCE AND YOU WILL NOT BE ENTITLED TO ANY FURTHER NOTICE IN THE PROCEEDINGS."

[2]. The applicant requests a declaration that the respondents are a single employer for the purposes of the Labour Relations Act and/or successor employer bound to the collective agree­ments between it and the respondents. The applicant requests a declaration that the respondents have violated those collective agreements since February 1990.

[3]. Preston & Lieff Glass Limited became bound by the collective agreement with Local 200 in the mid-60's covering various areas of the glazing business including installation, service and maintenance. Prior to 1978 one collective agreement covered all construction work, maintenance work and the shop fabrication facilities. As a result of legislated changes in 1978 the collective agreement was replaced by two agreements. Industrial, commercial and institutional work came under the ICI agreement pursuant to the designation. The remaining work including the shop, ser­vice and residential work was covered by a separate agreement. The business of Preston & Lieff Glass Limited was the fabrication, glazing of windows and doors for construction industry installa­tion including glass curtain wall construction. The applicant and the respondents have had a long term bargaining relationship. The applicant has held bargaining rights for the respondents' employ­ees for more than twenty years.

[4]. Although the respondents chose not to appear at the hearing, in their reply to the sec­tion 1(4)/63 application the respondents make the following submissions:

1. Preston & Lieff Glass Limited is a non active company which has been dormant since on or about the month of June, 1988.

2. At or about the same time that Preston & Lieff Glass Limited became dormant, Pre­ston & Lieff Glass Contracts Inc. and Preston & Lieff Glass (1988) Limited began, in substance, its operations, such operations being a continuation of the business previ­ously engaged in by Preston & Lieff Glass Limited. Preston & Lieff Glass Contracts Inc. engaged in various areas of the glazing business and principally pursued jobs in the industrial commercial and institutional sector of the construction industry. Preston & Lieff Glass (1988) Limited engaged in servicing, retailing, wholesaling and small contractual undertakings in the glazing business in several sectors of the construction industry.

3. The officers, shareholders and directors of Preston & Lieff Glass Contracts Inc. include Ted McGregor and Bernard Lieff.

4. The officers and directors of Preston & Lieff Glass (1988) Limited include Bernard Lieff and Ted McGregor. The shareholder of this company is Bernard Lieff.

[5]. As Preston & Lieff Glass Limited was at all material times bound to the collective agreements referred to in the application herein, and as Preston & Lieff Glass Con­tracts Inc. and Preston & Lieff Glass (1988) Limited have continued to carry on the business previously engaged in by Preston & Lieff Glass Limited, Preston & Lieff Glass Contracts Inc. and Preston & Lieff Glass (1988) Limited voluntarily agreed to be bound to the said collective agreements and have at all times complied with the terms, conditions and provisions of the said collective agreements.

[6]. On or about the month of September, 1988 Preston & Lieff Door Ltd. was incorpo­rated. This company was incorporated to engage in the remanufacturing of hollow doors and metal products including the installation thereof in addition to supplying and installing miscellaneous products such as hardware, loading docks and overhead doors and other products. The directors and officers of Preston & Lieff Door Ltd. include Robert Bourgeau, Ted McGregor and Bernard Lieff. The shareholders of this company are Ted McGregor and Door Northern Eastern Limited.

[7]. Preston & Lieff Door Ltd. has since June 18, 1990 been in receivership.

[8]. Preston & Lieff Glass Limited, Preston & Lieff Glass Contracts Inc. and Preston & Lieff Glass (1988) Limited, hereinafter referred to as Preston & Lieff Glass, and Pre­ston & Lieff Door Ltd., hereinafter referred to as Preston & Lieff Door, deny that any sale of a business has transpired within the meaning of Section 63 of the Labour Relations Act and further deny that they are involved in the operation of associated or related businesses or activities under common direction and control within the meaning of Subsection (4) of Section 1 of the said Act.

[9]. Preston & Lieff Glass and Preston & Lieff Door operate separate and distinct busi­nesses in premises unrelated to each other. The head office of Preston & Lieff Door is situated at 40 Jamie Avenue in the City of Nepean. The head office of Preston & Lieff Glass is located at 877 Carling Avenue in the City of Ottawa.

[10]. Preston & Lieff Door have at all material times been under the management and daily operational control and direction of Robert Bourgeau. Neither Bernard Lieff nor Ted McGregor either directed or controlted the business operations of Preston & Lieff Door.

[11]. Preston & Lieff Glass has been managed by and has been under the daily operational control of Ted McGregor and Bernard Lieff until very recently. In or about the month of May, 1990 Ted McGregor ceased his involvement in Preston & Lieff Glass. Bob Bourgeau at no time has been involved in the direction and control of Preston & Lieff Glass.

[12]. Preston & Lieff Door and Preston & Lieff Glass carry on and engage in separate busi­nesses. There is no intermingling of employees. Preston & Lieff Glass employs gla­ziers and metal mechanics whereas Preston & Lieff Door employs persons skilled in the carpenter and sheet metal trades.

[13]. Preston & Lieff Glass specifically deny the allegations contained in paragraphs e), f), g) and h) contained in Schedule "A" of the application herein.

[14]. Preston & Lieff Glass specifically deny that Preston & Lieff Door is a successor employer to Preston & Lieff Glass Limited in addition to specifically denying the alle­gations contained in paragraphs 6, 7, 8 and 10 of the application herein.

[15]. Preston & Lieff Glass states that in the event that the Ontario Labour Relations Board determines that Subsection (4) of Section 1 of the Act is applicable, which is not admitted but is specifically denied, then and in such event Preston & Lieff Glass requests this Board to exercise its discretion and not make the declaration pursuant to Section 1 (4) of the Act especially in this situation where it is clear that the applicant is attempting by this application to extend its bargaining rights rather than to preserve existing bargaining rights.

5. The evidence establishes that Preston & Lieff Door Ltd. (hereinafter referred to as the "Door Company") was engaged as a glazier contractor at the Carleton University project during February of 1990. The project involved installation of windows in an addition at Carleton Univer­sity. A grievance was filed, Board File 3072-89-G, to which the respondents replied that the work at Carleton was performed by the Door Company and not Preston & Lieff Glass. The applicant then applied under section 1(4)163 naming all four companies. Mr. Tessier gave evidence on behalf of the applicant. Mr. Tessier is the treasurer of Local 200 and has ten years experience in the glaz­ing trade. He observed the work performed at Carleton University and knew the subcontractor.

The Door Company was the glazing contractor who subbed the work to Mr. V. Trudell. Based on his experience and the observations on the jobsite Mr. Tessier estimates there was two months' work for four men at forty hours per week.

6. In July of 1990 the activities of Preston & Lieff Glass Contracts Inc., the ICI field instal­lation company, appear to have been terminated and all members of Local 200 working for that company were discharged or laid off.

7. Shop work, non ICI work and maintenance activities continued with Preston & Lieff Glass (1988) Limited. However the Company no longer filed the remittances as required by the collective agreement. The failure to remit became the subject of a grievance in Board File 2038-90-G. There was a decision of the Board (differently constituted) declaring the collective agree­ments were binding and that the respondent violated the collective agreements and ordering pay­ment of damages. Remittances from July to October 1990 had not been paid as of the hearing.

8. The applicant was informed that all of its members were terminated or discharged from Preston &Lieff Glass (1988) Limited on November 14, 1990. This resulted in further grievances, a section 89 and a lock out application.

9. An article in the Ottawa Citizen on November 24, 1990 made reference to the Preston & Lieff Glass Group of companies quoting Mr. Robert Bourgeau as spokesperson. Mr. Tier, the union representative received reports that work covered by the collective agreement continues to be performed by the Door Company by persons who are not members of Local 200 or referred through the hiring hall as required under the union security provisions of both agreements. No call for men was received by Local 200 and no men were dispatched. At all material times qualified gla­ziers mechanics and apprentices were available for work on the "out of work" list.

10. A further grievance was filed with respect to the failure to remit under the collective agreement for the month of November which was due December 5, 1990. During the course of that grievance the union received from Mr. Bourgeau documents from Preston & Lieff Glass (1988) Limited showing what remittances are owed for the employees.

11. Mr. Tier was given business cards for the Preston & Lieff Group of Companies and the Door Company. The same company logo is on both cards. The Door Company card indicates the address at 40 Jamie Avenue in Nepean and R.L. (Bob) Bourgeau, President. The Preston & Lieff Group of Companies card indicates the address at 877 Carling Avenue, Ottawa and Edward McGregor, Managing Director. The articles of incorporation for Preston & Lieff Door Ltd. dated September 2, 1988 show the address of the "Registered or Head Office" as 877 Carling Avenue, Ottawa. On the same document the Directors' names and residence addresses are shown. Robert Bourgeau is listed as a Director and his residence shown as 40 Jamie Avenue, Nepean.

12. Mr. Tier approached Ted McGregor when he learned of the existence of the Door Company and asked Mr. McGregor on March 21, 1989 to sign a voluntary recognition binding that entity in addition to the other three companies (hereinafter referred to as Preston & Lieff Glass or the Glass Companies) to the collective agreements. The union was told by Mr. McGregor to speak to Mr. Bourgeau. Mr. Tier, Mr. Tessier and Mr. Bourgeau met on March 30, 1989 at the office of the Door Company. The applicant was advised their business involved hollow metal frame doors, windows and overhead doors. The respondent declined to sign any agreements stating they would not be doing work covered by the Painters jurisdiction. The applicant first became aware of the Door Company doing glazing work covered by its collective agreements, on the Carleton project in February of 1990.

13. On June 26, 1990 Deloitte & Touche Inc. advised the applicant as follows:

Dear Sir:

Re: Preston & Lieff Door Ltd.

We are in receipt of your application under Section 63 of the Labour Relations Act dated June 15, 1990.

Please be advised that the above named debtor corporation has been placed in receivership by a secured creditor and that Deloitte & Touche Inc. have been named as Receiver and Manager.

As Receiver and Manager we are attempting to sell the business assets pursuant to a Sale by Tender dated June 20,1990. The tender opening will be on June 27, 1990.

Should you have any further questions please contact the undersigned.

Yours very truly,

DELOITTE & TOUCHE INC.

Per: "Michael K. Carson"

Michael K. Carson, C.A.

Senior Vice President

14. On December 7, 1990 further correspondence from Deloitte & Touche Inc. advised the applicant:

Dear Sirs:

Re: Preston & Lieff Glass (1988) Limited & Lieff Glass Contracts Inc.

We acknowledge receipt of your letter dated November 28, 1990, addressed to the above com­panies, and to Preston & Lieff Door (1990) Limited and Preston & Lieff Glass Limited.

Please be advised that the above companies are in receivership. Deloitte & Touche Inc. was appointed Receiver and Manager on November 14, 1990 by a secured creditor.

The Receiver and Manager is not operating the business presently and therefore has not been in a position to hire any of the shop employees.

If you have any questions, please contact the undersigned or Paul A. Stehelin.

Your very truly,

DELOITTE & TOUCHE INC.

In its capacity as Receiver

and Manager of Preston & Lieff

Glass (1988) Limited and

Preston & Lieff Glass Contracts

Inc. and not in its personal capacity.

Per:

"Jervis C. Rodrigues"

Jervis C. Rodrigues, C.A.

15. Gabriel Azzie testified that he started to work for Preston & Lieff Glass Limited in 1964 and continued to work for the Preston & Lieff Glass Group of companies until November 14, 1990. Mr. Azzie is a qualified glazier and metal mechanic. He was promoted to shop foreman in 1983. The Glass Companies were located at 877 Caning Avenue, Ottawa. In July 1990 The Door Company moved in and maintained a warehouse area at the back of the Carling Avenue premises. There was a common receptionist. The Door Company used the same bank as the Glass Compa­nies. Paycheques issued by Preston & Lieff Door (1990) Ltd. to Gabriel Azzie show the address as 877 Carling Avenue, Ottawa.

[16]. Bob Bourgeau, President of Preston & Lieff Door Limited can be reached at the same telephone number as the Preston & Lieff Group of companies, at 877 Carling Avenue, at 725-1151. Customers of the Door Company come to the front office of the Glass Companies and are directed to Bob Bourgeau's office.

[17]. Employees of the Door Company were performing bargaining unit work on the Glass Companies' premises. Paycheques for September and October were signed by Bernard Lieff. Cheques issued on November 14 were signed by Robert Bourgeau for Preston & Lieff Glass (1988) Limited.

[18]. On November 14, 1990 Bob Bourgeau asked Mr. Azzie to see the Deloitte & Touche receiver, Jervis Rodrigues. Mr. Azzie understood from Mr. Rodrigues discussion that he would be working for the receiver for a couple of weeks until the receiver sees which way he is going to go.

[19]. All the employees of Preston & Lieff Glass Company are laid-off on November 14, 1990. Mr. Azzie estimated based on the orders received at the time that there was another two months worth of work for the laid-off employees.

[20]. On November 16, 1990 Mr. Bourgeau asked Mr. Azzie if he wanted to stay and work "without the union". Mr. Bourgeau asked Mr. Azzie to call all the employees to come in on Mon­day morning. Mr. Bourgeau then told Mr. Azzie to send the men home if they did not want to work non-union. Mr. Azzie advised Mr. Bourgeau he could convey this message to the men him­self and that he, Azzie, would continue to work for the receiver. Mr. Azzie was paid union wage rages while working for the receiver but no contributions were made to the benefit plans nor were union dues deducted and remitted.

[21]. Employees of the Door Company performed service work covered by the collective agreement. In the past service calls and orders from the front counter were passed on to Mr. Azzie. On November 15 and 16 Joe Young on instructions of Mr. Bourgeau assigned the service work to employees of the Door Company who are non-union.

[22]. Mr. Azzie was shocked to find his paycheque for November was issued by Preston & Lief Door (1990) Ltd. Mr. Azzie expected to be paid by the receiver. The person looking after the books for the different companies works for Mr. Bourgeau. Mr. Azzie was told that the Door Company was now paying the employees and that the receiver did not want to hire anyone from the union. No payments were made to the various union benefit funds and no union dues were deducted. The print-out of the Ministry of Consumer and Commercial Relations micro fiche does not show a corporation by the name of Preston & Lieff Door (1990) Ltd.

[23]. There was a shipment of glass for the Bank of Canada. However, there is no direct evi­dence on what happened to it.

[24]. On November 22 the answering service for Preston & Lieff Glass forwarded three emergency calls to Mr. Azzie. Mr. Azzie did the service calls and gave the information to Joe Young in the morning. Mr. Bourgeau requested that they be invoiced by the Door company.

[25]. On the 10th of January Mr. Azzie was visiting the shop and observed three persons from the Door company carrying sheet glass, putting it on the table and cutting it for a customer waiting at the front counter. This was work that was done by the Glass Companies and is bargain­ing unit work.

[26]. Mr. Guy Deschesne had been with the company since 1981 doing shop work, field work and emergency calls. Mr. Bourgeau called everyone in on the 14th at 4:00 o'clock. He said this company is going into receivership and everyone is laid-off. The next day Mr. Bourgeau called Mr. Deschesne and asked him to work for him non-union for more money and higher pension plan. Guy Deschene refused. Mr. Bourgeau again asked Mr. Deschesne to work non-union in January 1991. Mr. Bourgeau asked Mr. Deschesne "even if I don't buy the Company - Preston & Lieff Glass (1988) Ltd., and start my own shop under another name, would you work for me?"

[27]. It is the applicant's position that when work is channelled away from the unionized entity, damages are appropriate and the work and employment be restored to Preston & Lieff Glass as in Plaza Fibreglass Manufacturing Limited, [1990] OLRB Rep. Feb. 192. The applicant submits Mr. Bourgeau is the operating mind in all of the entities, and he was responsible for chan­nelling the work away from the organized entity. Mr. Bourgeau approached each of the laid-off employees and offered them work provided they agreed to work non-union.

[28]. As of January 9,1991 a search of the personal property security registration system in respect of equipment and vehicles shows the owner as Preston & Lieff Door Ltd.

[29]. The applicant is requesting an order and declaration that the named respondents are a single employer for the purposes of the Labour Relations Act and are bound as a single employer to the collective agreements.

[30]. The applicant further requests an order and declaration that Preston & Lieff Door Ltd. is a successor employer to the Glass Companies. The respondent in its reply acknowledged that three of the companies are under common direction and control. The applicant submits all corpo­rations are jointly and severally liable for the damages with regard to the remittances in Exhibit 5 and with respect to the grievance in Board File 2555-90-G.

[31]. With respect to the Carleton University project, File No. 3072-89-G, the respondents have failed to observe the full terms and conditions of the collective agreement, and damages should be awarded as set out in the summary provided to the Board.

[32]. The applicant submits with respect to the section 89 complaint in Board File 2298-90-U, the circumstances clearly substantiate that the employer locked out the employees, a cessation of employment motivated by anti-union animus. Bob Bourgeau, fired all the union members and told them they could all come back to work for the Door Company if they agree to work non-union. The evidence shows that the Door Company was prepared to pay union or higher rates and there­fore, the applicant submits the only conclusion to be drawn is that there is anti-union animus involved. It need only be a factor and not the entire motivation to bring it in line with Plaza Fibreglass, (supra) see page 192. The applicant submits its appropriate in the circumstances to declare that the employer has engaged in an unlawful lock out of all the employees covered by the collective agreement. Work was channelled away from the Glass Companies in order to defeat the bargaining rights of the union.

[33]. Accordingly, an order of damages should issue with respect to the work at hand as per the evidence of Mr. Azzie for eight weeks work for all the employees locked out, for work per­formed by non-union persons in the employ of the Door Company contrary to the collective agreement. This is an appropriate remedy under section 93 as an unlawful lock-out and appropriate under the section 89 as a refusal to employ and continue to employ under section 66 and an attempt to impose a condition of employment under section 66. It is a violation of section 64 to interfere in the representation of employees by a trade union.

[34]. The applicant takes the position that each of the subsections of section 64 have been violated by imposing a condition of employment that employees be non-union and by refusing to employ or continue to employ them because they are members of the union. The respondents wanted the workers to work for them. They think they are good workers but they don't want them to be unionized.

[35]. In line with Plaza Fibreglass, (supra) and Board of Education of Windsor, [1984] OLRB Rep. Aug. 1145, the applicant submits the orders requested in its section 89 complaint are appro­priate. These are:

(a) An Order that the Respondents cease and desist from interfering with the administra­tion of a trade union, namely, the Complainant or the representation of employees by a trade union, namely the Complainant;

(b) an Order that the Respondents cease and desist from refusing to employ or to con­tinue to employ the Grievors because they are members of a trade union, namely, the Complainants and participate in its lawful activities;

(c) an Order that the Respondents cease and desist from seeking by threat of dismissal or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel the Grievors to refrain from becoming, to refrain from continuing to be or to cease to be a member of a trade union, namely, the Complain­ant and participating in its lawful activities;

(d) an Order that the Respondents cease and desist from imposing any condition in a con­tract of employment or proposing the imposition of any condition in a contract of employment which seeks to restrain the Grievors from exercising their rights under the Act, including joining a trade union of their choice, namely, the Complainant, and participating in its lawful activities;

(e) an Order that the Respondents cease and desist from altering any terms and condi­tions, rights or privileges and duties of employment in the absence of consent from the Complainant;

(f) an order of Reinstatement and Damages against the Respondents to compensate the Grievors for all loss of earnings and other employee benefits occasioned by the afore­mentioned violations of the Act;

(g) an Order of Damages against the Respondents in respect of all losses to the Com­plainant by reason of the aforementioned violations of the Act;

(h) an Order that the Respondents must pay both pre-ruling and post-ruling interest on all amounts owing pursuant to the award of damages requested herein;

(i) an Order that the Respondents post a notice at its premises and on each job site informing employees of their rights under the Act and the findings and orders of the Board with respect this Complaint;

(j) such further and other relief as may be appropriate in the circumstances.

I. Further the applicant requests:

(i) declare that the Respondent Companies be treated as constituting one employer for the purposes of the Labour Relations Act in that, at all material times, they were car­rying on associated or related businesses or activities under common direction and control within the meaning of Section 1(4) of the Act;

(ii) declare that the Respondent Companies as a single employer under Section 1(4) of the Labour Relations Act are bound by the Collective Agreements referred to in para­graph II hereof;

(iii) order that the Respondent Companies, as a single employer under Section 1(4) of the Act, forthwith apply the full terms and conditions of the Collective Agreements referred to in paragraph II hereof to all work performed by the Respondent Compa­nies.

II. An Order that the Respondents are bound by and must observe the following Collec­tive Agreements:

(a) Collective Agreement between the Architectural Glass and Metal Contractors Associ­ation and the International Brotherhood of Painters and Allied Trades, et al ("the ICI Agreement");

(b) Collective Agreement between Preston & Lieff Glass Limited, et al and the Ontario Council of International Brotherhood of Painters and Allied Trades ("the Non-ICI Agreement").

IV An Order the Respondents to compensate its employees for all losses incurred as a result of the unlawful lockout.

[36]. The applicant further requests an order to cease and desist to channel work away from the unionized entity, an order binding jointly and severally each of the companies, their officers, officials or agents.

[37]. The applicant submits that the receiver Deloitte & Touche, in line with the Board's jurisprudence, is bound by the orders against the respondent and further that notice of these pro­ceedings to the respondent constitutes notice to the receiver.

Decision:

[38]. Board File 0515-90-R

This is an application pursuant to section 63 and section 1(4) of the Act. The respondents in their reply to the 1(4)/63 application acknowledged that

Preston & Lieff Glass Limited

Preston & Lieff Glass Contracts Inc. and

Preston & Lieff Glass (1988) Limited

are under common direction and control. The respondents further acknowledged in their reply that Preston & Lieff Glass Limited was at all material times bound to the two collective agreements and that Preston & Lieff Glass Contracts Inc. and Preston & Lieff Glass (1988) Limited voluntarily agreed to be bound to the two collective agreements and have at all times complied with the terms, conditions and provisions of the said collective agreements.

[39]. The respondents took the position that Preston & Lieff Door Ltd. manufactures and installs hollow doors and metal products. The respondent denied section 1(4) is applicable or in the alternative the Board should exercise its discretion and not make the declaration pursuant to sec­tion 1(4).

[40]. We are satisfied that the statutory preconditions for a section 1(4) declaration have been met. We are further satisfied on the evidence before us that the applicant's bargaining rights have been undermined by the actions of the respondents. The Board in Donald A. Foley Limited, [19801 OLRB Rep. Apr. 436 stated:

One of the significant purposes of section 1(4) is to guard against the dilution or undermining of bargaining rights already obtained such, for example, as occurs when work is diverted from a unionized employer to an associated, newly created non-union one as in Evans-Kennedy Con­struction Limited, [1979] OLRB Rep. May 388; or when there is a risk or threat that bargaining rights may be eroded, as in West York Construction Limited, [1978] OLRB Rep. Sept. 879. For a more detailed review of the purpose of section 1(4), however, see Industrial Mine Installations Limited, [1972] OLRB Rep. Oct. 1029 at paragraphs 9 to 13 inclusive.

Absent any evidence to the contrary the only conclusion the Board can draw from the absence of the respondents and the statements in the respondents reply, that there was a deliberate undermin­ing of bargaining rights by diverting work from the unionized entity to a newly created non-union entity.

[41]. Accordingly, the Board declares that Preston & Lieff Glass Limited, Preston & Lieff Glass Contracts Inc., Preston & Lieff Glass (1988) Limited and Preston & Lieff Door Ltd. are one employer for the purposes of the Labour Relations Act and are bound to the collective agreements between:

(1) The Architectural Glass and Metal Contractors Association and the International Brotherhood of Painters and Allied Trades, et al ("the ICI agreement").

(2) Preston & Lieff Glass Limited, et al and the Ontario Council of International Brotherhood of Painters and Allied Trades ("the non­ICI agreement").

The Board further directs the respondent companies to apply the full terms and conditions of the above collective agreements.

[42]. In view of our declaration under section 1(4) and the remedies available under the sec­tion 89 complaint, the section 63 issue is academic and the Board does not consider it necessary to deal with the matter.

[43]. Referral of Grievance - Board File No. 2467-90-G

There is insufficient evidence with respect to the remedy requested. This application is dismissed without prejudice to a new application being filed.

[44]. Referral of Grievance - Board File No. 2555-90-G

On the evidence we find that the respondents have violated the collective agreement as alleged in the applicant's letter dated December 27, 1990. The Board hereby directs the respondents to pay forthwith the remittances owing for the month of November in the amount of $4,122.37 together with interest as set out in article 13:03 of the ICI agreement.

[45]. Referral of Grievance - Board File No. 3072-89-G

On the evidence we find that the respondents have violated the collective agreement as alleged in the grievance filed by the applicant dated March 1, 1990. The work that is the subject of this griev­ance is clearly bargaining unit work covered by the applicants agreement. The Board hereby directs the respondent to pay to the applicant the sum of $28,529.92. This amount represents the cost for four persons at forty hours per week for eight weeks.

[46]. Board File No. 2297-90-U

We do not propose to deal with the section 93 application in Board File No. 2297-90-U. The allega­tions giving rise to the section 93 application are the same allegations as in the section 89 com­plaint. The remedies requested are available under the section 89 complaint and the section 93 application is therefore dismissed.

[47]. Board File No. 2298-90-U

This is a complaint under section 89 of the Act, alleging various sections of the Labour Relations Act have been contravened. On the evidence we find that the respondents have contravened sec­tions 64, 66 of the Labour Relations Act. Sections 64 and 66 provide for:

64. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contrib­ute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

65. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to com­pel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

[48]. For the foregoing reasons, the Board hereby orders the respondents, Preston & Lieff Glass Limited, Preston & Lieff Glass Contracts Inc., Preston & Lieff Glass (1988) Limited and Preston & Lieff Door Ltd. who have been declared to be one employer for the purposes of the Act forthwith:

(1) cease and desist from breaching sections 64 and 66 of the Act;

(2) to compensate the applicant and its members for losses arising out of the violations of the Act, for bargaining unit work performed by other than members of the applicant together with interest as set out in Hallo well House Limited, [1980] OLRB Rep. Jan. 35. (See Prac­tice Note No. 13 of the Board's Practice Notes); and

(3) reinstate members of the applicant to perform all bargaining unit work.

[49]. The Board remains seized to deal with any matters arising out of the implementation of the Board's orders and directions.