[1991] OLRB Rep. February 225
1634-90-G; 2010-90-R Labourers' International Union of North America – Local 1059, Applicant v. M. Concrete Forming, Respondent; The Labourers' International Union of North America, Local 1059, Applicant v. 643210 Ontario Inc., operated by M. Concrete Forming and M. Concrete Forming Limited, Respondents
BEFORE: R. A. Furness, Vice-Chair, and Board Members W. N. Fraser and J. A. Redshaw.
APPEARANCES: L. A. Richmond and T. DaCosta for the applicant; Benjamin Melo for the respondents.
DECISION OF THE BOARD; February 8, 1991
1In Board File No. 1634-90-G the applicant has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding determination.
2In Board File No. 2010-90-R the applicant has applied to the Board under sections 63 and 1(4) of the Labour Relations Act with respect to its bargaining rights as a result of either a sale of a business by 643210 Ontario Inc., operated by M. Concrete Forming to M. Concrete Forming Limited which allegedly occurred on or about June 1, 1990, or, as a result of the respondents being associated or related employers within the meaning of section 1(4) of the Labour Relations Act.
3The Board heard evidence from Benjamin Melo who appeared before the Board as a result of a warrant for the arrest of a defaulting witness and also heard evidence from Tony Da Costa, a representative of the applicant.
4643210 Ontario Inc. was incorporated on November 21, 1985. Mr. Melo was the sole owner and director and was also the president and the secretary. M. Concrete Forming Limited (the "new company") was incorporated on April 30, 1990. Mr. Melo was the sole owner and director and was also the president, secretary and treasurer. At the time of the hearing both companies were in existence. The numbered company ceased commercial operations at the end of May 1990. The numbered company encountered financial difficulties and, acting upon legal and accounting advice, Mr. Melo caused the new company to be incorporated. Both companies performed the same work, namely, concrete forming with respect to foundation walls, floors, sidewalks, driveways and similar structures in concrete.
5The numbered company owned forms and a spray for the forms and used two trucks (1979 and 1981 models) which were and are personally owned by Mr. Melo. The new company purchased the forms from the numbered company. Mr. Melo personally paid some of the indebtedness of the numbered company with respect to concrete supplies. This left some $300,000 owing by the numbered company. He also believed that, in addition to leaving financial problems behind him with the new company, he could operate the new company without being bound by a collective agreement with the applicant. Accordingly, he did not pay the rates and did not make the contributions required by the collective agreement. Mr. Melo prepared the estimates, made the bids and did the lay-out work for both companies. Without Mr. Melo neither company would exist. He informed the Board that customers know they are dealing with him and that they do not care which company they are dealing with.
6The applicant and the numbered company are bound by a collective agreement in which the applicant is the bargaining agent for all construction employees engaged in concrete forming and finishing construction on all construction projects within the counties of Middlesex, Bruce, Elgin, Oxford, Perth and Huron, save and except non-working foremen and persons above the rank of non-working foreman, office clerical and engineering staff (the "collective agreement"). The collective agreement became effective on March 1, 1989, and remains in effect until February 28, 1991.
7In Walters Lithographing Co. Limited, [1971] OLRB Rep. July 406, the Board set forth the following criteria in determining whether there is common direction or control: 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. The Board in that case noted that no single criteria was likely to decide the issue and that the greater the degree of functional coherence and interdependence, the more probable it was that the entities would be treated as one employer. In the instant application under section 1(4) there is no doubt on the evidence before the Board that the first four criteria have been satisfied. Mr. Melo is the business in a very real sense. The numbered company was superseded by the new company for the purpose of avoiding liabilities. On all the evidence before it, the Board is satisfied that 643210 Ontario Inc. and M. Concrete Forming Limited are carrying on associated or related activities or businesses under common control or direction within the meaning of section 1(4) of the Labour Relations Act. Pursuant to section 1(4) the Board declares that 643210 Ontario Inc. and M. Concrete Forming Limited constitute one employer for the purposes of the Labour Relations Act and that 643210 Ontario Inc. and M. Concrete Forming Limited are bound by the collective agreement between the applicant and 643210 Ontario Inc. operated by M. Concrete Forming which became effective on March 1, 1989, and remains in effect until February 28, 1991.
8The applicant also requested a declaration that there had been a sale of a business within the meaning of section 63 of the Labour Relations Act from 643210 Ontario Inc. operated by M. Concrete Forming to M. Concrete Forming Limited which was alleged to have taken place on or about June 1, 1990. The evidence with respect to the alleged sale was very limited and consisted of the sale of forms from one company to the other. Standing by itself the sale of forms appears to have been merely a sale of assets rather than the sale of a business. The respondents were vehicles by which Mr. Melo conducted his business. He was and is the business. The Board is not prepared to find on the limited evidence before it that there was a sale of a business within the meaning of section 63 of the Labour Relations Act. The request for relief under section 63 is therefore dismissed.
9With respect to the proceeding under section 124, the evidence established that M. Concrete Forming Limited performed work covered by the collective agreement using employees who were not members of the applicant and who had not been obtained from the applicant while there were unemployed members of the applicant who were qualified and ready, willing and able to perform the work in which M. Concrete Forming Limited was engaged.
10Article 2.01 of the collective agreement requires all employees when working in a position in the bargaining unit are required as a condition of employment to be members of the applicant. Under article 2.02 M. Concrete Forming Limited is required to deduct regular monthly dues and initiation fees where applicable. Article 2.03(a) requires M. Concrete Forming Limited to call the applicant for its supply of men. By article 14.01 M. Concrete Forming Limited is required to make pension, welfare and union administration contributions or remittances as provided for under the collective agreement and Schedule "A" thereto to the trust funds designated in Schedule "A" or as designated by the applicant no later than the fifteenth day of the month following the month for which the contribution or remittance is due.
11The evidence established that during June, July, August, September and October of 1990 M. Concrete Forming Limited employed Mr. Melo's son. In November of 1990 the son was laid off. Mr. Melo also worked and on some jobs other employees were working during this period. The son worked an average of three days a week from June 1 until November 1. Another employee named Manuel worked for 5 days during this period. In addition, since March 1, 1990, the respondents have made improper pension contributions to the applicant.
12The money owing by M. Concrete Forming Limited with respect to the four former employees for two weeks at forty-four hours per week is three hundred and eighty-seven dollars and twenty cents. Secondly, the money owing by M. Concrete Forming Limited with respect to Manuel for five days of work the contribution is forty-eight dollars and forty cents together with wages in the amount of seven hundred and twenty-two dollars and four cents which ought to have been received by a member of the applicant together with vacation pay in the amount of fifty-seven dollars and seventy-six cents for a total of eight hundred and twenty-eight dollars and twenty cents. Thirdly, with respect to Mr. Melo's son, the amount owing is based upon three days a week or twenty-six and two fifths of an hour each week for twenty-three weeks from the beginning of June until the end of October. On these figures the contributions amount to six hundred and sixty-seven dollars and ninety-two cents. The wages which ought to have been received by a member of the applicant amount to nine thousand nine hundred and sixty-four dollars and fifteen cents together with vacation pay in the amount of seven hundred and ninety-seven dollars and thirty-two cents for a total of eleven thousand four hundred and twenty-nine dollars and thirty-nine cents. Fourthly, during March of 1990 643210 Ontario Inc. underpaid the contributions by ten cents per hour for forty-five and a half hours for an additional amount of forty-five dollars and fifty-six cents.
13The amount owing by M. Concrete Forming Limited on its own behalf and on behalf of 643210 Ontario Inc. totals twelve thousand six hundred and ninety dollars and thirty-five cents.
14The Board pursuant to the provisions of section 124 of the Labour Relations Act directs M. Concrete Forming Limited to forthwith pay to the Labourers' International Union of North America, Local 1059, the sum of twelve thousand six hundred and ninety dollars and thirty-five cents ($12,690.35) together with interest calculated in accordance with the principles set forth in Hallowell House Limited, [1980] OLRB Rep. Jan. 35. The Board remains seized with respect to any issue which may arise with respect to the calculation of interest.