[1992] OLRB Rep. February 137
2957-92-R; 3183-92-G; 3221-92-G; 3222-92-G; 3223-92-R; 3287-92-G; 3288-92-G; 3289-92-G Ontario Council of the International Brotherhood of Painters and Allied Trades, Local Union 1891, Applicant V. Malvern Drywall Systems Ltd. and 950337 Ontario Inc. c.o.b. as Lakeridge Acoustics, Responding Parties; Drywall Acoustic Lathing and Insulation Local 675, Applicant v. 950337 Ontario Inc. c.o.b. as Lakeridge Acoustics, Responding Party; Drywall Acoustic Lathing and Insulation Local 675, Applicant V. MalVern Drywall Systems Ltd., Responding Party; Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America, Applicant V. Malvern Drywall Systems Ltd. and 950337 Ontario Inc. c.o.b. as Lakeridge Acoustics, Responding Parties
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members G. 0. Shamanski and J. Redshaw.
APPEARANCES: L. Steinberg and A. Neil for Ontario Council of the International Brotherhood of Painters and Allied Trades, Local Union 1891; M. Pollock and Helmut Redermeier for Drywall Acoustic Lathing and Insulation Local 675; no one appearing for the responding parties.
DECISION OF THE BOARD; February 24, 1993
1These eight files are related matters which were listed together at the request of the applicants. Files 2957-92-R and 3223-92-R are similar requests for declarations under sections 64 and 1(4) of the Act. The remaining files are referrals of grievances in the construction industry for arbitration under section 126 of Labour Relations Act. For convenience, the applicants will be referred to as the Painters and the Drywallers.
2No one appeared on behalf of the responding parties within one-half hour of the appointed time for the start of the hearing. Both the Painters and the Drywallers wished to proceed on the applications under section 64 and 1(4) of the Act, and the Painters wished to proceed with their referrals to arbitration in files 3183-92-G and 3287-92-G.
3It appeared that notice had been given in the normal manner by the Registrar to the responding parties. Mail addressed to Malvern Drywall Systems Ltd. (referred to below simply as Malvern) at the addresses provided by the applicants was returned undelivered to the Board. However, it is evident that notices of the same material sent to 950337 Ontario Inc. c.o.b. as Lakeridge Acoustics, (referred to below as Lakeridge) were received. Materials sent to both Malvern and Lakeridge were sent to the attention of Mr. Aurele Belair, the common principal of both responding parties.
4Correspondence was received from Mr. Belair on February 2, 1993 as follows:
Please be advised that Lakeridge Acoustics is a separate company which as no employees and never had. The only work that has been done has been by myself and sometimes with the help of my son. I have not done any work for the last six months.
Also please be advised that I have never met [or] discussed any settlement with any body. The Painters union were notified that Malvern Drywall had been closed down by the Bank. Also please be advised that Lakeridge has never worked in St. Catharines. So who ever is giving you the information is totally wrong.
Thus, it is clear that Mr. Belair purports to have knowledge of both responding parties and that he is aware of proceedings before the Board relating to both or he would not have written the Board. In the circumstances, although the material addressed to Mr. Belair for Malvern was returned, we are satisfied that the same material, addressed to him for Lakeridge, was received by him. In the circumstances we find Malvern had actual notice of these proceedings through the material addressed to Lakeridge. The material indicates there are no employees of Malvern or Lakeridge to whom notice could be given.
5The notices of hearing clearly state the following in paragraph 3:
IF YOU DO NOT ATTEND THE HEARING, THE BOARD MAY DECIDE THE APPLICATION WITHOUT FURTHER NOTICE TO YOU AND WITHOUT CONSIDERING ANY DOCUMENT FILED BY YOU.
Accordingly, we proceeded to hear the matters the applicants requested we deal with.
6The material before the Board indicates a sound basis for a declaration under section 1(4) of the Act and we ruled orally that we would grant the requested declaration. Although the applicants also submitted that the facts would support a declaration under section 64, they each indicated that a declaration under section 1(4) would suffice. Thus, it is not necessary to rule on the section 64 application.
7Section 1(4) reads 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.
8The material indicates that the activities of both the responding parties are related. Malvern's full name indicates its business relates to drywall systems. Lakeridge's registration of its business style under the Business Names Act indicates the activity carried on as "drywall and acoustics". Although Mr. Belair's letter indicates that these activities were not carried on by both entities during the same time period, the statute specifically states the section applies whether or not carried on simultaneously.
9The material further indicates the two businesses are under common control and direction. Malvern's last filing under the Corporations Information Act in 1984 indicates that Aurele Belair is President and a Director of Malvern. Lakeridge's filing under the same Act in 1991 indicates the numbered company was incorporated on November 8, 1991 and that the sole Director and President is Aurele Normand Belair. Although not in technical language~ the letter sent to the Board by Mr. Belair indicates general knowledge of the activities of both, and specifically of work done for Lakeridge.
10Although the above is sufficient basis for the declaration, the application of Rules 14 and 19 also support the declaration sought. Rules 14 and 19 provide as follows:
- Any response filed with the Board must include the following details:
a) the full name, address, telephone number and facsimile number (if any) of the responding party, of a contract person for the responding party and of
any other person who may be affected by the application;
b) a statement of agreement or disagreement with each fact or allegation in the application;
c) a statement of the responding party's position with respect to the orders or remedies requested by the other parties;
d) where the responding party relies on a version of the facts different from the applicant's a detailed statement of all material facts on which the responding party relies, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.
- If a party receiving notice of an application does not file a response in the way required by these Rules, he or she may be deemed to have accepted all of the facts stated in the application, and the Board may decide the case upon the material before it without further notice.
The letter from Mr. Belair does not dispute anything in the applications which refer to the relatedness of the activities of the respondents nor the common direction and control of Mr. Belair. Thus, he may be deemed to have admitted those facts.
11There is no reason before us to refuse the declaration sought and sufficient basis in the material before us to do so. Thus, we hereby exercise our discretion and declare that the responding parties are to be treated as one employer for the purposes of the Act pursuant to section 1(4).
12Counsel for the Drywallers filed documents related to Board File 2377-91-G being a memorandum of Agreement dated October 31, 1991 in which Mr. Belair agreed on behalf of Malvern to pay $12,143.70 in settlement for breaches of the collective agreement to which Malvern and the applicant were bound. A decision of the Board dated November 26, 1991 ordered Malvern to pay the same amount for the same collective agreement breach. We are advised that the amount has not been paid. The application in Board file 3233-92-R included a request for an order that the respondents pay full compensation to the applicant. We were referred to Golden Arm Flooring Inc.,[1992] OLRB Rep. June 731 where the Board granted a section 1(4) declaration and included as part of the relief a direction for the respondent to pay any unsatisfied damages arising out of a previous Board order.
13The effect of the section 1(4) declaration is to treat both respondents as one entity. Thus Lakeridge is also bound to the collective agreement to which the Drywallers and Malvern were bound. As a consequence, Lakeridge is also liable to pay the amounts outstanding under the previous settlement and Board order in Board file 2377-91-0. There is no reason before us to limit the application of our declaration to obligations incurred after Lakeridge's incorporation, and we decline to do so.
14The Drywallers requested that their referrals to arbitration in files 3221-92-0, 3222-92-G, 3288-92-0 and 3289-92-0 be adjourned. Having regard to that request and the absence of the employer, those matters are hereby adjourned sine die for a period not to exceed one year. If the Board does not receive a written request for a hearing within that one-year period, and the matter is not otherwise disposed of by the Board, those matters will be dismissed. Since three of those files had not been fully processed, being files 3222-92-G, 3288-92-0 and 3289-92-G, if they are revived they will have to be processed at that time.
15The Painters asked us to consider their referrals to arbitration in Board files 3183-92-0 and 3287-92-0. They are identical with the exception of the reference to the duration of the collective agreement. Board file 3287-92-0 has not been fully processed and will be considered adjourned sine die under the same terms as the files referred to in paragraph 14 which were not fully processed.
16The Painters and Malvern are bound by the provincial collective agreement between the Ontario Painting Contractors Association, Acoustical Association Ontario, Interior Systems Contractors Association of Ontario and the Painters. The grievance referred for arbitration in file 3183-92-0 refers to several matters, most specifically the non-payment of required contributions, deductions and remittances under that collective agreement. The applicant asks for an order for the amount of $6,326.22 in respect of these claims. This number is derived from remittance sheets filed by Malvern in respect of employees understood by the applicant and its Administrator T. Neal to have worked for Malvern during the time covered by the forms, July through October, 1991. The remittance forms were sent to the benefit plan's administrator without any payment. They were then forwarded to the applicant because there was no accompanying payment and a grievance was filed.
17We find that the remittance forms amount to an admission by Malvern that it owes the amounts listed there. Pursuant to the section 1(4) declaration, Lakeridge is also bound to the collective agreement to which the Painters and Malvern were bound. Therefore we find that both Malvern and Lakeridge owe the painters $6,326.22 for the categories of remittances set out on their Employer's Contribution Report forms it filed for the months of July, August, September and October, 1991.
18In summary then, the applications in files 2957-92-R, 3183-92-G and 3223-92-R are granted. Files 3221-92-G, 3222-92-G, 3287-92-G, 3288-92-G and 3289-92-G are adjourned sine die as set out in paragraphs 14 and 15. Malvern and Lakeridge are ordered to pay the Painters $6,326.22 as set out in paragraph 17. Malvern and Lakeridge are ordered to pay the Drywallers $12,143.70 as set out in paragraphs 12 and 13, less any amounts previously paid in satisfaction of the Board's order in Board File 2377-91-G.