International Brotherhood of Electrical Workers, Local 353 v. Agincourt Electric, 1991 CanLII 6117

[1991] OLRB Rep. February 209

0003-90-R International Brotherhood of Electrical Workers, Local 353, Applicant v. Agincourt Electric and/or Agincourt Electrical Contracting Company and/or KNK Limited, Respondents

BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members J. Lear and P. V. Grasso.

APPEARANCES: Elizabeth Mitchell and Bill Martindale for the applicant; Pamela Yudcovitch for the respondents.

DECISION OF THE BOARD; February 27, 1991

I

1. This is an application under section 1(4) of the Labour Relations Act. The applicant union contends that the respondents, "Agincourt" and "KNK", should be declared to be "one employer" for labour relations purposes. The relevant provisions of the Act are as follows:

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.

(5) Where, in an application made pursuant to subsection (4), it is alleged that more than one corporation, individual, firm, syndicate or association or any combination thereof are or were under common control or direction, the respondents to the application shall adduce at the hear­ing all facts within their knowledge that are material to the allegation.

If a section 1(4) declaration were made, KNK (an ostensibly "non-union" firm) would be bound by the collective agreement previously binding Agincourt.

2. The parties agree that the legal requirements for a section 1(4) declaration are present; namely: Agincourt and KNK carry on related business activities under the common control and direction of Lorne Harvey, their owner. KNK contends however that no section 1(4) declaration should issue. In KNK's submission, the union was aware of KNK's existence for some time prior to this application and, accordingly, having "slept on its rights", should not now be entitled to a sin­gle employer declaration.

3. The facts are not substantially in dispute. Many of them are contained in an agreed statement filed with the Board. Others were established by witnesses familiar with the respon­dents' operations. Credibility is not in issue.

II

4. Lorne Harvey, the principal of both respondents, became a journeyman electrician in

1968 and eventually became a union member. In 1979, he began carrying on business as an electri­cal contractor. In 1980 he registered the business name of Agincourt Electrical Contracting. Aginc­ourt's head office was located at 1466A Kingston Road, Scarborough.

5. On December 21, 1979, Lorne Harvey, on behalf of Agincourt, executed a voluntary recognition agreement with the union. As a result, Agincourt became bound to the provincial col­lective agreement between the electrical trade bargaining agency of the Electrical Contractors Association of Ontario and the Ontario Construction Council of the IBEW. The collective agree­ment sets out the wages