Carpenters & Allied Workers Local 27 v. Italian Canadian Benevolent Corporation, 1992 CanLII 6770

[1994] OLRB Rep. October 1074

0158-91-R; 0790-91-R Carpenters & Allied Workers Local 27, United Brother­hood of Carpenters and Joiners of America, Applicant v. Italian Canadian Benev­olent Corporation (Toronto District) Respondent; Carpenters & Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Italian Canadian Benevolent Corporation (Toronto District); The Italian Cana­dian Benevolent Seniors' Apartment Corporation; and Italian Canadian Projects for Seniors Inc. (Toronto District), Respondents

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.

APPEARANCES: D. McKee and Luis Camara for the applicant; Michael Ho ran, P. Di Iulio and Ugo Di Federico for the respondents.

DECISION OF K. G. O'NEIL, VICE-CHAIR, AND BOARD MEMBER H. KOBRYN; October 8, 1992

1. This is the continuation of an application for certification and a related application under section 1(4) of the Labour Relations Act ("the Act"). Having regard to the agreement of the parties, these matters were consolidated.

2. It appears from the corporate records filed with the Board that the correct corporate name of the respondent in the certification application is, and is hereby amended to read: Italian Canadian Benevolent Corporation (Toronto District). It will be referred to as ICBC in the remain­der of the decision.

3. ICBC was established in 1971 and has organized a large number of projects in Toronto's Italian-Canadian community since that time. The applicant seeks bargaining rights for its carpen­ters and carpenters' apprentices in the industrial, commercial and institutional (ICI) sector of the construction industry as well as work in all other sectors of the construction industry in Board Area 8. The reply states that ICBC has no employees in the bargaining units sought.

4. The work at issue was performed on the construction site of a seniors' apartment build­ing known as Casa del Zotto, which opened in June, 1991. The parties were in dispute as to the nature of the work performed by persons on the Casa del Zotto project on the application date of the certification application. By decision dated July 16, 1992, the Board (somewhat differently con­stituted) determined that there were two carpenters at work in the bargaining unit on the date of application.

5. The section 1(4) application claims that ICBC is a related corporation to the two other respondents, being the Italian Canadian Benevolent Seniors' Apartment Corporation (ICBSAC) and Italian Canadian Projects for Seniors Inc. (Toronto District) which will be referred to as PSI in this decision. PSI says that it is the employer of the employees referred to in the application for certification. ICBSAC is the owner of the land on which Casa del Zotto was built, and since its opening, is its operator. All the respondents are non-profit corporations without share capital.

6. The thrust of the applicant's case in the 1(4) application is that for a certificate to have any meaning and for bargaining rights to be viable the certificate must issue for all three corpora­tions. The union maintains that the only ongoing economic vehicle is the ICBC, whereas PSI can disappear tomorrow and is already dormant. By contrast, the respondents maintain that the three corporations are not under common direction and control, and that in any event, and in the alter­native, the Board should not exercise its discretion in the circumstances of this case. The respon­dents describe the three corporations as playing the roles of developer (ICBC), owner (ICBSAC) and contractor (PSI) and say that the Board does not normally use section 1(4) to link entities in those traditional relationships in the construction industry. We turn now to the facts underlying this dispute in more detail.

7. Casa Del Zotto is a two hundred and two unit apartment building for seniors, which now stands adjacent to another seniors' apartment building, Caboto Terrace, which is also owned by ICBSAC. Faced with a long waiting list at Caboto Terrace, which was opened in 1984, the ICBC had market studies done which demonstrated that there was a pressing need in the Italian-Canadian community for more housing for seniors who wished to live an independent life. This identified need led to negotiations which resulted in a federal-provincial agreement on an alloca­tion of funds to permit the construction of the future Casa del Zotto. This allowed ICBC to appor­tion and sell a piece of land, evaluated by the Ministry of Housing and others at arm's length, to ICBSAC at the time of construction. The land still enjoys the tax exempt status which was given to ICBC by private statute. The tax exempt status survives as long as the project is consistent with the purposes of ICBC. The Board of the ICBSAC, which is composed of the same individuals who make up the executive committee of ICBC, had decided to proceed with the project and success­fully applied for Ministry of Housing funds, based on its good track record in running Caboto Ter­race.

8. A number of volunteers agreed to act as principals of a new corporation, PSI, which was incorporated in March, 1990, for the purpose of building the future Casa Del Zotto. With the approval of the Ministry of Housing, the contract for the construction of the building was given to PSI. The evidence before us was that the contents of the contract between PSI and ICBSAC were effectively dictated by the Ministry of Housing in that the funding was coming directly from the Ministry. The contract contemplates that PSI would also be executing a contract with ICBC respecting the construction of a day care centre on lands leased from ICBSAC (presumably this refers to the day care centre now operating within Casa del Zotto). ICBSAC obtained the funds and paid for the land and professional services. The money was dispensed to PSI by ICBSAC in payment of invoices from PSI. PSI was managed by way of a volunteer construction committee, which over the course of two years met almost every two weeks to oversee the contract. It called for bids at the sub-trade level, not at the general contractor level. PSI contracted out all the work on the construction of Casa del Zotto, with the exception of a small amount of work which is the subject matter of these applications. The Board's July 16, 1992 decision contains a description of some of that work, which ranged from clean-up to carpentry work. The carpentry trim contract was given to a "union" contractor.

9. The construction committee, whose mandate was to put up the building below or on budget, was composed of three volunteers with signing authority, recruited on the basis of their construction expertise and profile in the Italian community. The original Chair of the committee was Robert Fusco, Past President of ICBC, and thus a member of the Board of Governors of ICBC. He was succeeded by Silvio De Gasperis, who was also 2nd Vice-President of both ICBC and ICBSAC and President of three-member Board of Governors of PSI. Another member of the Board of Governors of PSI was Paul Pellegrini, also a member of ICBC's Board of Governors. The third member, Galli Tiberini, had no position on the Boards of ICBC or ICBSAC, but was known in the Italian community to have significant construction expertise as a builder/developer. During various stages of the construction of Casa del Zotto, the committee drew on other volun­teer resources. This included the regular attendance at the bi-weekly meetings of Palmocchio Di Iulio, Executive Director of ICBC, and Ugo Di Federico, Director of Finance of ICBC. Mr. Di Iulio and Mr. DiFederico had no named post in PSI but saw their roles as community helpers, a role that Mr. Di Iulio has played on a large number of projects in the Italian-Canadian community. On the Casa del Zotto project, he regularly gave his advice, toured the construction site, and recruited people through his contacts in the community. Di Iulio was involved in isolating two or three candidates for Superintendent of the Casa Del Zotto project.

10. Tiberini directed Superintendent Ted Di Angelis who called for and bundled bids to be brought back to the committee. Tenders were put out for each phase of the operations such as excavation, etc. Tiberini received tenders from the sub-trades and negotiated contracts with them. He also inspected the site and resolved problems with which the superintendent had difficulty. When PSI was in need of an accountant, Tiberini asked Di Federico to find one which he did. The accountant was then hired by PSI, reported to Messrs. Di Gasperis and Tiberini and has subse­quently gone to work for ICBSAC.

11. Prior to the incorporation of PSI, ICBC paid the salary of Ted Di Angelis, who later was superintendent of the construction of Casa del Zotto, and an employee of PSI. PSI was later charged for the salary of Mr. Di Angelis during that period. Mr. Di Angelis and his helper, Craig Gray were two long-term employees of PSI. Clean up and miscellaneous things were handled by the staff of a minimum of three and a maximum of seven. Mr. Di Angelis was in charge of who was to be hired and fired. PSI paid the employees involved in these applications. Individual employees talked to the committee and got their pay raised during the construction of Casa Del Zotto. Some applications filled out by prospective employees had "ICBC" handwritten at the top of application forms obtained from an unrelated firm. The evidence suggested that this may be explained by the fact that Mr. Di Angelis received his first several paycheques from ICBC before PSI was incorpo­rated and its payroll established. ICBC's name also appeared on the architects' plans, which the respondent explains by saying that ICBC was playing the role of project developer.

12. After the opening of Casa Del Zotto in June 1991, approximately 10 percent of the work was left including cleaning, deficiencies and odds and ends. Two employees of PSI helped out for about a week in August 1991 in readying a snack bar at the Columbus Centre, which is owned by the ICBC, for opening. PSI is now a dormant corporation with minimal assets limited to certain tools and supplies. It owns no land, equipment or other major assets.

13. The role of the ICBC in the Casa del Zotto project began with the genesis of the idea. In the construction phase the connection was that ICBC's Director of Finance and Executive Director attended the meetings of the Construction Committee and offered their advice and assis­tance liberally. Mr. Di Iulio agreed with union counsel's characterization of Casa Del Zotto as the fifth major project of ICBC. The other four were the construction of Villa Colombo Home for the Aged (1976), the construction of the Colombus Centre of Toronto (a community centre and fitness facility (1980)), Caboto Terrace (1984) and the development of the Vita Community Service of Toronto (1987), which services the developmentally handicapped. ICBC was also instrumental in developing the Joseph D. Carrier Art Gallery (1988) within the Colombus Centre. Money was raised to build both Villa Colombo and the Columbus Centre by the ICBC. After its establishment each organization has had its own Board of Directors. However, many of the people involved are the same. The evidence indicated that the track record of ICBC and ICBSAC in successfully mounting and maintaining these various projects was an important consideration in the Ministry of Housing's willingness to award the allocation to ICBSAC which enabled Casa Del Zotto to be built.

14. For the above organizations other than ICBSAC, ICBC covers deficits. These occur annually, in the case of Villa Colombo, Colombo Centre and Vita Community Living Service. Vita receives direct operating funds from the Ministry of Community and Social Services and capital funding indirectly from ICBC. ICBC has no intention of covering deficits for ICBSAC, which Di Iulio did not foresee in any event. Both Caboto Terrace and Casa del Zotto run on zero based budgeting, being entirely funded by government. Casa del Zotto's budget is entirely controlled by the funds made available by the Ministry of Housing. Surpluses and deficits are intended to be dealt with by the Ministry.

15. Nursing and non-nursing staff at the Villa Colombo Nursing Home are covered by col­lective agreements between the nursing home and ONA and CUPE, respectively.

16. ICBC's general mandate is to look for new ways to serve the community. This has mani­fested itself in the various projects which it has mounted. ICBC's direct operations include a cater­ing service in the Villa Colombo building which employs a hundred and five people and less than ten employees in administration including Mr. Di Iulio, Mr. Di Federico, some secretaries and clerks. ICBC owns the building which houses the Columbus Centre and Art Gallery and owns the houses which are operated independently by Vita Community Living Services of Toronto. PSI's accountant had his office in the Columbus Centre where Di Federico's office is as well. PSI was charged for the use of space by ICBC who owns the building. Columbus Centre is leased from ICBC, as is the Villa Colombo Building. Columbus Centre subleased to PSI as well as many other groups. ICBC also publishes a newspaper/magazine called Life-style which it sees as another means of outreach to the Italian Canadian community.

17. ICBC has no formal role in the ongoing operation of Casa Del Zotto. It is administered by the Administrator of Caboto Terrace, the other seniors' apartment building on land owned by ICBSAC. Mr. Di Iulio, through his contacts in the Italian Canadian community, passes resumes on to the administrator, refers people as they might be needed and gives his point of view if asked.

18. The construction committee used by PSI to get Casa del Zotto built was not dissimilar to the vehicle used for building Villa Colombo, Columbus Centre or Villa Caboto. Mr. Di Iulio agreed that in each case the concept started with the ICBC and was carried out by a committee whose members had a variety of relationships with ICBC which varied with the funding mecha­nism. Mr. Fusco, the original chair of PSI and its construction committee, earlier chaired the con­struction committee for the Colombus Centre.

19. During the life of Caboto Terrace's construction committee, Mr. Di Iulio was Assistant Executive Director of ICBC and attended a good number of the meetings. The members of the committee had no position with ICBC at the time. However, ICBC was the driving force behind the project. The general contractor was Caboto Terrace Apartment Corporation which has been essentially dormant since. It is an agreed fact that Caboto Terrace Apartment Corporation had been involved in building at the Lawrence and Dufferin site under a different name in respect of the construction of Villa Colombo following 1976. Its charter was revoked when its corporate returns were not filed for four to five years. It was the evidence of Mr. Di Federico that it would have been more trouble than it was worth to resurrect the inactive corporation to build Casa del Zotto; it was easier to incorporate a new entity. ICBC and ICBSAC were also apparently dissolved at one time but they were revived because they had assets which the Caboto Terrace Corporation did not. In respect of Vita Community Living Services, its active board performed the role of contractor for certain group homes. A committee was used to do the construction and ICBC applied for funds to build them on land it owned.

20. In argument, employer counsel stressed that the emphasis must be on the locus of man­agerial control, as found in the Court of Appeal's decision in Ontario Legal Aid Plan v. OPSEU, [1991] November OLRB Rep. 1327. In the Court's view, the Board erred in not taking into account the statutory basis for the Ontario Legal Aid Plan's involvement in the affairs of the legal clinics with whom it had been declared by the Board to be a common employer, and thus miscon­strued a regulatory relationship as an employer-employee relationship.

21. Employer counsel also argued that the following cases should be of assistance to the Board. In Dalton Engineering [1988] June 567 a 1(4) declaration was refused on the basis that even if the preconditions existed it would not be a proper case for the exercise of the Board's discretion, because the owner kept control over the work and contracted directly with the subcontractors argued to have been engaged in breach of the general contractor's obligation to subcontract to unionized outfits. In Specialized Transit [1991] OLRB Rep. July 900 the Board held that the TTC who had contracted out transportation services for the disabled had not retained managerial con­trol. Therefore it was not included in the 1(4) declaration that covered two related suppliers of transportation services for the disabled. The Board said that bargaining rights attached to a defin­able commercial activity, rather than the legal vehicle through which the activity is carried on.

22. The employer also argued that a 1(4) declaration would have an unnecessary and con­fusing effect on the ongoing operations of the organizations housed in the buildings referred to above. These include a home for the aged, a catering business, a restaurant, a fitness facility, a day-care centre, an art gallery, as well as services to the developmentally handicapped. Union counsel responded that the declaration could be limited to the bargaining unit applied for.

23. The union's position is that PSI is nothing more than a legal form for ICBC's and ICBS­AC's ongoing construction activity. Union counsel referred to Beacon Vanier, [1984] Dec. OLRB Rep. 1682. In that case, the Board stated that in a situation of a certification application and a related 1(4) application, the Board looks not only for related activities, but a form of joint control over important aspects of the employment relationships which would be the subject of collective bargaining. The Board granted the declaration with a certification application where a prima facie case was made out and no reason was advanced not to grant it, the respondents having failed to appear.

24. The union's argument also made reference to the following cases: In Gottcon, [1989] July 757 the Board said that a 1(4) would be granted to create a viable bargaining unit within an integrated workforce, prevent undue fragmentation and prevent the possible erosion of bargaining rights. In Tactix, [1990] April 467, where there was no common ownership, but construction was under the control of one person, the statutory conditions for a 1(4) declaration existed. The poten­tial for erosion of bargaining rights led led the Board to grant the declaration. York Condominium, [1977] October 645 was cited for the factors for determining who was the true employer.

25. Both counsel referred to Walters Litho graphing, [1971] OLRB Rep. July 406 for the tra­ditional indicia of the presence of the prerequisites for a section 1(4) declaration. As the Board indicated in that case, the appraisal under section 1(4) is based on all of the criteria in light of the particular facts; the greater the degree of functional coherence and interdependence, the more likely a declaration is to follow. Looking at those criteria, the following comments about the facts of this case may be made:

(a) Common ownership of financial control: Since the three corporations

involved are corporations without share capital ownership is not a factor which assists in the analysis of these facts. Financial control over the construction of Casa del Zotto was held by the volunteer construction committee, which utilized the advice of ICBC's Mr. Di Federico from time to time.

(b) Common management: The only managerial employee was Mr. Ted de Angelis, who had no managerial role outside PSI. The managerial control over Mr. De Angelis was exercised by the volunteer con­struction committee. Two of the signing officers of PSI were on the Board of Directors of either or both of ICBC and ICBSAC at all material times. An unusual aspect of this fact situation is that the committee which exercised managerial control was entirely volun­teer, and none of them stood to gain financially. In this respect, the signing officers, the "official committee", were indistinguishable from the other volunteers, including Di Federico and Di Julio, who were regularly involved in the decision making meetings as advisers, although they were being paid by ICBC. Di Iulio did recruiting for PSI.

(c) Inter-refationship of operations: The construction of Casa del Zotto was an interrelated operation, but the only one. PSI was set up to do the project. There was no integrated work force; the fact that some of PSI's employees worked at the Columbus Centre for a short period of time is not sufficient to establish one. On an ongoing oper­ational basis, there is no relationship between PSI and the other two respondents as it is dormant. Between ICBC and ICBSAC the ongo­ing interrelation amounts to physical proximity and the regular use by ICBSAC of ICBC personnel as resource people.

(d) Representation to the public as a single integrated enterprise: Evi­dence established that ICBC and ICBSAC were regularly referred to in ICBC publications as engaged in companion activities to service the Italian Canadian community. ICBC is sometimes referred to as the parent organization. This did not go so far as a representation to the public that the enterprises were structurally integrated. The man­agerial personnel of the ICBC and ICBSAC were regularly identified as attached to one or the other organization, and not to both. In the. 1989 Annual Report of ICBC, ICBSAC was said to be building Casa del Zotto. It is also noted in ICBC publications that the location of ICBSAC's buildings puts tenants close to the services and programs of Columbus Centre and Villa Colombo. PSI was not mentioned in the materials distributed to the public.

(e) Centralized control of labour relations: PSI's employee di Angelis did the hiring and firing. The construction committee set the wages of the employees. ICBC personnel were used as resource people and a signing officer of PSI was on the Boards of ICBC and ICBSAC.

26. Having carefully reviewed the facts and submissions of the parties, we are of the view

that the prerequisites for a section 1(4) declaration are present on these facts. Section 1(4) reads as follows:

(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.

27. In our opinion, the construction of Casa del Zotto qualifies as a related activity within the meaning of section 1(4), carried out by or through more than one entity, being ICBC, ICBSAC and PSI. It is this activity that produced the employment which is the subject matter of the applica­tions before us. See Brantwood Manor Nursing Homes Limited [1986] OLRB Rep. Jan. 9, among others, for a discussion of the breadth of the meaning of the terms "related activity or business." The Casa del Zotto project was described as the fifth project of ICBC. ICBSAC was integral to the project as it was its track record that attracted the Ministry of Housing's attribution of the housing unit funding. ICBC's tax-exempt status applies to ICBSAC. ICBC's senior staff regularly partici­pated in PSI's managing committee.

28. A number of factors indicate common control and direction both in a general and spe­cific sense. Generally, ICBSAC and PSI are the products of the ICBC's concepts for serving the Italian-Canadian community by providing housing for senior citizens. It can fairly be said that the three are jointly carrying out this portion of ICBC's mandate. Insofar as this construction project is concerned, they are functionally interdependent. See Kennedy Lodge Inc. [1984] OLRB Rep. July 931 at paragraph 53. Although in an abstract sense it is true that the three corporations played the role of developer (ICBC), owner (ICBSAC) and contractor (PSI), at a practical level the unique facts of this case do not conform to the usual commercial configuration for these roles. They are not entities with independent genesis and mandates such as in Dalton Engineering, supra. Rather, the three entities together were responsible for the activity of building the senior citizens home to serve the Italian-Canadian community.

29. Specifically, there is overlap in the directorships of all three entities. Moreover, the role of ICBC's senior staff in the management committee of PSI is significant. There is no indication that it was any less than the unpaid volunteers on the construction committee which managed the construction of Casa del Zotto.

30. We must then decide if our discretion to give the declaration requested should be exer­cised. As stated in KNK Limited, [1991] OLRB Rep. Feb. 209, where the legal requirements for s. 1(4) and the mischief at which the section is aimed have been established, the declaration should ordinarily issue unless there is either particular prejudice or compelling policy reasons for not doing so. Section 1(4) is designed to protect bargaining rights from erosion or enable them to be established where they are in danger of not being viable because of the real structure of the employer, or where there is difficulty in tying down the employment relationship. That is the "mis­chief' which the legislature was seeking to deal with, particularly, although not exclusively, where there were attempts to circumvent or avoid dealing with a unionized workforce.

31. This is not a case where it is alleged or shown that the arrangement among the respon­dents was in any way an attempt to avoid the union. There is evidence indicating otherwise; for example, the trim carpentry contract was let by PSI to a union contractor. Similarly, there is no evidence before us to suggest that ICBC or ICBSAC has or intends to conduct itself in the future in a manner intended to avoid unionization. The Casa del Zotto project is finished. The union says

PSI may disappear tomorrow, and another corporate vehicle appear to do the ongoing construc­tion work of the ICBC and ICBSAC.

32. The construction activity referred to by the union as ongoing has been intermittent with spaces of three to five years between the projects. The evidence indicated there is none planned at the moment, although the search for ways to serve the Italian-Canadian community, which was described as moving north and west from the current sites, may in fact result in more construction.

33. We are satisfied, that although not crystallized at the moment, the potential for erosion of any bargaining rights obtained for the construction activity described above exists were we to refuse to grant the declaration and the respondents generate another vehicle to do construction. The incorporation of PSI to build Casa del Zotto was a matter decided on the basis of convenience from a corporate point of view. There is no reason for future construction to necessarily be done through PSI rather than some other corporate vehicle as has been done on previous construction projects. As was indicated by the Board in West York Construction Limited [1978] Sept. 879, Kustom Insulation Ltd., [1979] OLRB Rep. June 531 and Tactix, supra, the union is not required to wait until the actual erosion has taken place to apply for a one employer declaration. There was no prejudice cited by the respondents flowing from a declaration under s. 1(4) other than potential confusion to the situation with other employees of the respondents. We are satisfied that this can be dealt with by limiting the declaration to employees in the bargaining sought. There are no com­pelling policy reasons to refuse the declaration, and its refusal might result in future litigation of the same issue, a result which it is good policy to avoid.

34. For all of the above reasons, we grant the declaration sought, limited to the bargaining unit agreed to which is as follows:

all carpenters and carpenters' apprentices employed by the employer in the industrial, commer­cial and institutional sector of the construction industry in the Province of Ontario; and

all carpenters and carpenters' apprentices employed by the employer in Board Area 8 excluding the industrial, commercial and institutional sector, save and except non-working foreman and persons above the rank of non-working foreman.

35. Having regard to the findings of the decision of the Board dated July 16, there were two people in the bargaining unit. There are no remaining issues outstanding in the certification appli­cation, so we will deal with it here.

36. In this application for certification the applicant filed two certificates of membership. The certificates are signed by the members and indicate that monthly dues of $20.00 have been paid for at least one month within the six-month period immediately preceding the terminal date of the application. The certificates are checked and certified correct by an officer of the applicant. The money was collected by one person. The applicant also filed a duly completed Form 80, Dec­laration Concerning Membership Documents, Construction Industry.

37. The respondent filed a reply and a list of employees within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure.

38. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 141(1) of the Act on April 10, 1980, the designated employee bargaining agency is the United Brotherhood of Carpenters and Joiners of America and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of Amertca.

39. The Board further finds that this is an application for certification within the meaning of section 121 of the Labour Relations Act and is an application made pursuant to section 146(1) of the Act which provides that:

An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in the definition of sector" in section 119 shall he brought by either,

(a) an employee bargaining agency; or

(b) one or more affiliated bargaining agents of the employee bargaining agency,

on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection (3) or by voluntary recogni­tion.

40. The Board further finds, pursuant to section 146(1) of the Act, that all carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institu­tional sector of the construction industry in the Province of Ontario and all carpenters and carpen­ters' apprentices in the employ of the respondent in all other sectors in the Municipality of Metro­politan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.

41. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on April 25, 1991, the terminal date fixed for this application and the date which the Board determines, under section 105(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

42. Section 146(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:

……the Board shall certify the trade unions as the bargaining agent of the employees in the bar­gaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.

[emphasis added]

Therefore, pursuant to section 146(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 38 above in respect of all carpenters and carpen­ters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working fore­men and persons above the rank of non-working foreman.

43. Further, pursuant to section 146(2) of the Act, a certificate will issue to the applicant trade union in respect of all carpenters and carpenters' apprentices in the employ of the respondent in all sectors of the construction industry in the Municipality of Metropolitan Toronto, the

Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.

DECISION OF BOARD MEMBER W. N. FRASER; October 8, 1992

1. I dissent.

2. I do not agree that the Board should exercise its discretion under s. 1(4) in finding that ICBC, ICBSAC and PSI constitute one employer for purposes of the Act.

3. I do not believe that the Board should engage in speculation, as indicated in paragraph 33 of the decision. Should any future construction activity by ICBC or ICESAC actually come to pass, that would seem to be a more appropriate time for the union to organize and certify any employees not already represented.

4. For the foregoing reasons, I cannot agree with the decision of the majority. I would have dismissed the application for certification.