International Union of Bricklayers and Allied Craftsmen Local #2, Ontario v. Bayritz Construction Ltd., 1994 CanLII 10007

International Union of Bricklayers and Allied Craftsmen Local #2, Ontario v. Bayritz Construction Ltd.

[1994] OLRB Rep. October. 1283

1424-93-R; 1984-93-U; 1985-93-G International Union of Bricklayers and Allied Craftsmen Local #2, Ontario and the Ontario Provincial Conference of the Inter­national Union of Bricklayers & Allied Craftsmen, Applicants v. Bayritz Con­struction Ltd. and Bayritz Masonry Ltd. and Dakota Masonry Ltd. and 986153 Ontario Ltd. c.o.b. as Yellow Brick Masonry and Sundial Bricklayers Inc., Responding Parties v. Labourers' International Union of North America, Local 183, Intervenor; International Union of Bricklayers and Allied Craftsmen Local 2, Ontario and The Ontario Provincial Conference of Bricklayers and Allied Crafts­men, Applicants v. Bayritz Construction Ltd. and Bayritz Masonry Ltd. and Dakota Masonry Ltd. and 986153 Ontario Ltd. c.o.b. as Yellow Brick Masonry and Sundial Bricklayers Inc. and Labourers' International Union of North Amer­ica, Local 183, Responding Parties; International Union of Bricklayers and Allied Craftsmen Local 2, Ontario and The Ontario Provincial Conference of Bricklayers and Allied Craftsmen, Applicants v. Bayritz Construction Ltd. and Bayritz Masonry Ltd. and Dakota Masonry Ltd. and 986153 Ontario Ltd. c.o.b. as Yellow Brick Masonry and Sundial Bricklayers Inc., Responding Parties

BEFORE: D. L. Gee, Vice-Chair, and Board Members W. N. Fraser and G. McMenemy.

APPEARANCES: N. L. Jesin, D. Buttazzoni and B. Griffiths for the applicant; M. Lewis and Q. Ceolin for the Labourers' International Union of North America, Local 183; and A. Carvaiho for the remaining responding parties.

DECISION OF THE BOARD; October 3, 1994

1. The title of proceedings in all of the above Board files is amended to omit reference to "Yellow Brick Masonry" and "986153 Ontario Ltd." as separate responding parties and name "986153 Ontario Ltd. c.o.b. as Yellow Brick Masonry" as a responding party.

2. Board File No. 1424-93-R is an application under sections 64 and 1(4) of the Labour Relations Act (the "Act") in which the applicants (the "Bricklayers") assert that there has been a sale of business from Bayritz Construction Ltd. ("Bayritz") to the remaining responding parties or that the responding parties constitute one employer for the purposes of the Act. The intervenor, the Labourers' International Union of North America, Local 183, ("Local 183") does not dispute that the responding parties carry on associated or related activities under common control or direc­tion within the meaning of section 1(4) of the Act, but takes the position that the Board should exercise its discretion and not grant a declaration with respect to Sundial Bricklayers Inc. ("Sun­dial") as Local 183 has had bargaining rights with respect to bricklayers and bricklayers' appren­tices and stonemasons and stonemasons' apprentices employed by Sundial in the non-ICI sectors of the construction industry in Board Area 8 since August 1991. Although Local 183 initially took the same position with respect to 986153 Ontario Ltd. c.o.b. as Yellow Brick Masonry ("Yellow Brick"), Local 183 advised the Board at the commencement of the hearing that it was abandoning its bargaining rights with respect to Yellow Brick and was not opposed to a declaration with respect to Yellow Brick.

3. Board File No. 1984-93-U is an application under section 91 of the Act in which the applicants assert that the responding parties violated sections 3, 49, 65, 67, 68 and 71 of the Act. The applicants allege that the owner of Bayritz, Antonio Carvalho, created Yellow Brick and Sun­dial at the instigation of Local 183 and entered into collective agreements pertaining to Yellow Brick and Sundial with Local 183 in an effort to avoid and undermine the applicants' bargaining rights. Local 183 denies such allegation. Mr. Carvaiho acknowledges that he incorporated Yellow Brick in order to enter into an agreement with Local 183 but denies that such was done at the insti­gation of Local 183.

4. Board File No. 1985-93-G is a related application under section 126 of the Act. Board File No. 1424-93-R and 1984-93-U were heard together on March 29, 30 and July 27, 1994. Board File No. 1985-93-G was adjourned pending disposition of Board files 1424-93-R and 1984-93-U.

5. At the conclusion of the hearing of this matter on July 27, 1994, the Board provided the parties with a bottom-line ruling with reasons to follow. The substance of the Board's bottom-line ruling is set out at paragraph 57 of this decision. The following is the Board's reasons therefore.

6. Mr. Antonio Carvalho appeared at the hearing on behalf of the responding parties with­out legal counsel. Mr. Carvaiho was advised that, although there is no requirement that parties appearing before the Board retain legal counsel, Board hearings are legal proceedings and persons appearing on their own bear any risk involved with doing so. Mr. Carvalbo was advised that the Board is an adjudicative tribunal and as such we could not advise him as to how he should proceed. We did, however, explain to Mr. Carvalho the process to be followed at the hearing, i.e. the exam­ination and cross-examination of witnesses, the opportunity to make submissions, etc. Mr. Car­valho was given an opportunity throughout the hearing to participate but, aside from being called a witness by the Bricklayers, declined to do so.

Facts

7. On May 1, 1984 the International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen were voluntarily recognized by A and C Masonry Ltd. to represent bricklayers and bricklayers' apprentices and stonemasons and stonemasons' apprentices employed by A and C Masonry Ltd. in the ICI sector of the construction industry. On November 15, 1984 the International Union of Bricklayers and Allied Craftsmen, Local 2 was voluntarily recognized to represent all bricklayers and bricklayers' apprentices and stonemasons and stonemasons apprentices employed by A and C Masonry Ltd. in the residential sector of the construction industry in Board Area 8. It is not in dis­pute that Bayritz is a successor employer of A and C Masonry Ltd.

8. Mr. Carvaiho is the sole director and officer of Bayritz. Maria Ferreira is a former director and officer of Bayritz. The head office of Bayritz is 77 Guthrie Avenue, Mr. Carvalho's residential address.

9. Sundial was incorporated in May 1990. The address of Sundial's head office is Mr. Car­valho's residential address. Sundial was actively engaged in the construction industry during 1990 and 1991. The Bricklayers did not assert or seek bargaining rights during this period of time. In August 1991 Local 183 applied to be certified to represent all bricklayers, bricklayers' apprentices and construction labourers in the employ of Sundial in all non-ICI sectors of the construction industry in Board Area 8. Presumably, notice of such application was provided to the employees of Sundial. It would appear that no employees sought to intervene or otherwise advise the Board that they were represented by the Bricklayers as Local 183 was subsequently certified with respect to the bargaining unit sought. Following negotiations and the appointment of a conciliation officer, a No Board Report was issued on May 12, 1992. On July 20, 1992, Local 183 and Sundial entered into a collective agreement. The collective agreement was executed by Mr. Carvalho's partner. Local 183 was unaware of Mr. Carvalho's involvement in Sundial until the commencement of the instant proceedings.

10. The Board heard very little evidence concerning Dakota Masonry Ltd. ("Dakota") and Bayritz Masonry Ltd. The application under sections 64 and 1(4) of the Act indicates that the applicants conducted a corporate search with respect to Bayritz Masonry Ltd. and no such entity was found. A photocopy of business cards appended to the application indicates that the offices of Bayritz Masonry (spelled on the card "Bay Ritz Masonry Ltd.") and Dakota are located in the same premises and share the same phone, fax and mobile numbers. The logos used on the business cards of Dakota and Bayritz Masonry are identical.

11. On June 19, 1991 Local 183 applied for certification of all bricklayers, bricklayers' apprentices and construction labourers employed by Bayritz Masonry in the non-ICI sectors of the construction industry in Board Area 8. The matter proceeded to a hearing before the Board on April 24, 1992 at which time the Bricklayers satisfied Local 183 that Bayritz Masonry was bound to a non-ICI agreement covering bricklayers and bricklayers' apprentices in Board Area 8. Local 183 amended its application and was certified to represent labourers employed by Bayritz Masonry in all non-ICI sectors of the construction industry in Board Area 8 on April 27, 1992. No certificate or voluntary recognition agreement with respect to Bayritz Masonry was produced by the applicants, however, as indicated above, the applicants have bargaining rights with respect to bricklayers, stonemasons and their apprentices employed by Bayritz Construction Ltd. It would appear that, at the time of Local 183's application for certification and continuing to date, both the applicants and Local 183 consider Bayritz Construction Ltd. and Bayritz Masonry Ltd. to be one and the same entity.

12. Immediately following the April 24, 1992 Board hearing concerning Local 183's applica­tion for certification with respect to Bayritz Masonry, Mr. Carvalho had a brief conversation with Quinto Ceolin, a business representative of Local 183. Mr. Ceolin indicated to Mr. Carvalho that, if he wanted to work in the residential sector of the construction industry, he would have to have an agreement with either Local 183 or the Bricklayers' Masons Independent Union of Canada, Local 1 ("Local I"). Mr. Ceolin was referring to the fact that Local 183 and the Metropolitan Toronto Apartment Builders Association (the "MTABA") had recently agreed to a subcontracting clause which, once effective, would require all contractors bound to the MTABA agreement to contract or subcontract work covered by the subcontracting clause to contractors in contractual relations with Local 183 or Local 1 (the "subcontracting clause").

13. On May 1, 1992, only days after the Board proceedings with respect to Bayritz Masonry, Dakota voluntarily recognized the International Union of Bricklayers and Allied Crafts­men, Local 2, Ontario as the bargaining agent on behalf of all bricklayers and bricklayers' appren­tices, stonemasons and stonemasons' apprentices in the ICI sector and all non-ICI sectors in Board Area 8 as well as all labourers in all non-ICI sectors of the construction industry in Board Area 8.

14. On May 7, 1992 Mr. Carvalho caused Yellow Brick to be incorporated in order that he could enter into a collective agreement with Local 183. The sole director and officer of Yellow Brick is Maria Ferreira. The registered head office of Yellow Brick is 34 High Street, Etobicoke.

15. Following negotiation of the subcontracting clause in April 1992, Mr. Carvalho was advised by a number of builders that he could not work with them unless he had an agreement with Local 183 or Local 1.

16. As a result of concern created by the subcontracting clause amongst masonry contrac­tors, one such contractor arranged a meeting on July 2, 1992. Representatives of Local 183 were invited to speak at the meeting in order to clarify what was happening in the industry. Approxi­mately 60 to 70 people, including Mr. Carvalho, representing approximately 30 different masonry contractors, attended this meeting.

17. Mr. Dionisio, the President of Local 183, spoke at the meeting. He indicated, amongst other things, that, as a result of the subcontracting clause, builders bound to the MTABA agree­ment would be required to subcontract work to masonry contractors in contractual relations with either Local 1 or Local 183. Contractors were told that, if they did not have an agreement with either Local 183 or Local 1, they would have difficulty getting work in the residential sector of the construction industry. Mr. Dionisio indicated that contractors could expect to be affected by the provision in 1993. Following Mr. Dionisio's remarks, representatives of Local 183 spoke with the contractors individually with a view to entering into voluntary recognition agreements with them. Approximately 10 to 12 contractors signed agreements. Mr. Carvalho entered into a voluntary rec­ognition agreement with Local 183 pertaining to Yellow Brick at this meeting. Mr. Ceolin signed the voluntary recognition agreement on behalf of Local 183. Mr. Ceolin testified that, at the time of the signing the voluntary recognition agreement, he did not recognize Mr. Carvalho as a princi­pal of Bayritz. As is discussed in greater detail below, Local 183, and Mr. Ceolin in particular, were in contact with numerous masonry contractors during the summer of 1992. Given the large number of contractors Mr. Ceolin spoke with during the summer of 1992, we accept that Mr. Ceo­lin did not associate Mr. Carvalho with Bayritz when they met in July 1992.

18. In the summer of 1993, Mr. Carvalho attended a meeting with representatives of the Bricklayers. At this meeting, the Bricklayers asked Mr. Carvalho to sign a voluntary recognition agreement on behalf of Yellow Brick and Sundial with the Bricklayers. Mr. Carvalho was advised that, if he did not sign with the Bricklayers, the Bricklayers would take him to the Board and dam­ages would be sought. Mr. Carvalho advised the Bricklayers that he could not sign an agreement on behalf of Yellow Brick and Sundial as he had already signed these two companies with Local 183. Mr. Carvalho indicated that Mr. Ceolin had told him that he would need another company in order to sign an agreement with Local 183 and that if he did not get a company to go with Local 183, he "would be out". At the hearing Mr. Carvalho testified that he did not intend to say that Mr. Ceolin told him that he would need another company to sign with Local 183 but rather that he would need an agreement with Local 183 or Local 1 in order to work in the residential sector of the construction industry.

19. Local 183 began organizing bricklayers in 1991. In 1991 and 1992 Local 183 filed approximately 65 to 75 applications for certification to represent bricklayers, the majority of which were successful. Local 183 did not file applications for the appointment of a conciliation officer with respect to any individual contractor until such time as it had attempted to have each of the newly certified contractors sign an agreement. Applications were then filed with respect to all of the contractors who either did not sign or could not be located at the same time. As a result, Local 183 obtained approximately 40 No Board Reports in May 1992. During the summer of 1992, Local 183 was approached by numerous contractors concerning the possibility of entering into a voluntary recognition agreement. Approximately 50 to 60 of those contractors signed voluntary recogni­tion agreements. Many others did not.

20. The application in Board File No. 1424-93-R was filed on July 28, 1993. The application in Board File 1984-93-U was filed on September 16, 1993.

SECTION 91 COMPLAINT

Argument

21. The Bricklayers assert that the responding parties have violated the following sections of the Act:

22. Every person is free to join a trade union of the person's own choice and to participate in its lawful activities.

23. An agreement between an employer or employers' organization and a trade union is deemed not to be a collective agreement for the purposes of this Act,

(a) if an employer or employers' organization participated in the formation or administration of the trade union; or

(b) if an employer or employers' organization contributed financial or other support to the trade union.

65. 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 the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

66. 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.

68.- (1) No employer, employers' organization or person acting on behalf of an employer or an employers' organization shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any per­son or another trade union or a council of trade unions on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

(2) No trade union, council of trade unions or person acting on behalf of a trade union or coun­cil of trade unions shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers' organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

71. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

72. The applicants submit that Yellow Brick was created by Mr. Carvaiho at the instigation of Mr. Ceolin and in a combined effort of the responding parties to avoid and undermine the Bricklayers' bargaining rights and that such conduct violates sections 49, 65, 67, 68 and 71 of the Act.

73. The applicants submit that, by extending bargaining rights to Local 183 and signing col­lective agreements with Local 183 in the face of the Bricklayers' pre-existing bargaining rights, Yel­low Brick and Sundial have given employer support to Local 183 contrary to section 49 of the Act.

74. The applicants submit that Local 183 was aware of the Bricklayers' pre-existing collec­tive bargaining relationship with Mr. Carvalho's businesses and consequently was in violation of sections 65, 67, 68 and 71 of the Act when it entered into voluntary recognition agreements with Yellow Brick and a collective agreement with Sundial.

75. In support of its submission that Local 183 violated the Act as aforesaid, the applicants rely on the fact that Mr. Carvalho and Mr. Ceolin had a conversation at the Board on April 27, 1992 and that, only days later, on May 7, 1992, Mr. Carvalho caused Yellow Brick to be incorpo­rated. The applicants point to the fact that Mr. Carvalho executed a voluntary recognition agree­ment on behalf of Yellow Brick at the July 2, 1992 meeting after listening to comments made by Mr. Dionisio. The voluntary recognition agreement pertaining to Sundial was entered into with Local 183 shortly thereafter, on July 20, 1992. The applicants further rely on the fact that Mr. Car­valho, at a meeting with representatives of the Bricklayers in 1993, informed the Bricklayers that Mr. Ceolin had told him that he would need to start a new company in order to get an agreement with Local 183.

76. In support of its submission that Yellow Brick violated the Act as aforesaid, the appli­cants rely on Mr. Carvalho's admission that he incorporated Yellow Brick for the sole purpose of entering into a voluntary recognition agreement with Local 183.

77. In support of its submission that Sundial violated the Act as aforesaid, the applicants rely on the fact that, notwithstanding that Local 183 was certified in August 1991, Sundial did not enter into a collective agreement with Local 183 until July 1992. The applicant submits that it can be reasonably inferred from the timing of the signing of the collective agreement that Sundial entered into the agreement to avoid and undermine the Bricklayers' bargaining rights. It was not alleged that Sundial's incorporation in May 1990, was designed to avoid or undermine the appli­cants' bargaining rights.

78. Local 183 denies that Mr. Ceolin instigated Mr. Carvaiho to incorporate Yellow Brick and asserts that there is no evidence to support such an allegation. Local 183 relies on Mr. Carval­ho's testimony that, following negotiation of the sub-contracting clause, he was advised by builders that, if he wished to work with them, he would need an agreement with Local 183 or Local 1 and submits that it was as a result of such comments that he decided to incorporate a new company to enter into an agreement with Local 183. Further, Local 183 submits that it would have had no need to encourage Mr. Carvalho to start a new company in order for Local 183 to obtain bargaining rights as Local 183 already had bargaining rights with respect to Sundial.

79. With respect to the allegation that Local 183 was aware of Mr. Carvaiho's companies' pre-existing relationship with the Bricklayers when it entered into agreements pertaining to Yellow Brick and Sundial, Local 183 denies that such was the case. With respect to Sundial, the collective agreement was executed by Mr. Carvalho's partner and Local 183 had no knowledge that Mr. Car­valho was involved in Sundial until the commencement of the instant proceedings. With respect to Yellow Brick, Local 183 asserts that, when Mr. Ceolin executed the voluntary recognition agree­ment on behalf of Local 183 he did not associate Mr. Carvalho with Bayritz. The agreement was signed at a meeting where there were approximately 60 individuals representing 30 masonry con­tractors present. Over the previous year Mr. Ceolin had spoken with numerous contractors in the course of Local 183's drive to organize bricklayers, many of whom subsequently did not enter into an agreement with Local 183. Local 183 submits that it is entirely reasonable in the circumstances that Mr. Ceolin did not recognize Mr. Carvalho or associate him with Bayritz.

80. Local 183 submits that Sundial's execution of a collective agreement with Local 183 on July 20, 1992 was not a violation of the Act. Local 183 was certified to represent employees of Sun­dial in August 1991. Local 183 obtained a No Board Report in May 1992. Sundial was legally required to negotiate in good faith to achieve a collective agreement and, had it not executed an agreement, could have been subject to strike activity. In the face of a valid certificate and No Board Report, Local 183 submits that Sundial's execution of a collective agreement cannot consti­tute a violation of the Act.

81. As indicated above, Mr. Carvalho, aside from being called as a witness by the Bricklay­ers, did not participate in the hearing and accordingly took no position as to whether the Act had been violated as alleged by the applicants.

Decision

32. As our findings of fact set out above indicate, Mr. Carvalho incorporated Yellow Brick in order to enter into an agreement with Local 183 with respect to employees who, absent the incorporation of Yellow Brick, would have been represented by the applicants. As a result, Yellow Brick, through the actions of its owner, breached sections 65 and 68 of the Act. Mr. Ceolin did not suggest to Mr. Carvalho that he start up a new company but rather informed him that, as a result of the subcontracting clause, if he did not have an agreement with either Local 183 or Local 1 he would not be able to work in the residential sector of the construction industry. This was a state­ment of fact and was not a violation of the Act by Local 183 (see: The Metropolitan Toronto Apart­ment Builders Association, [1978] OLRB Rep. Nov. 1022; Masonry Contractor's Association (Toronto-Incorporated), [1978] OLRB Rep. Dec. 1123).

33. We have found that, at the time of executing the voluntary recognition agreement per­taining to Yellow Brick, Mr. Ceolin did not associate Mr. Carvalho with Bayritz. There is no other basis asserted on which Mr. Ceolin would have been aware that companies operated by Mr. Car­valho had a pre-existing relationship with the Bricklayers and accordingly we conclude that he was not so aware. With respect to Sundial, Mr. Carvalho's partner executed the collective agreement. There was no evidence to support a finding that, at the time of signing the collective agreement, Local 183 knew that Sundial was associated in any way with Bayritz. Accordingly, we find that Local 183 did not violate the Act when it entered into agreements with either Yellow Brick or Sun­dial.

34. Concerning the allegation that Sundial violated the Act when it entered into a collective agreement with Local 183 on July 20, 1992 we find that it did not. We do not view the timing of the signing of this agreement as an indicator that Sundial only entered into the agreement to avoid the Bricklayers. As the facts set out above indicate, there is no evidence to suggest (nor is it alleged) that the incorporation of Sundial, or the subsequent certification of Local 183 to represent employ­ees of Sundial, was in violation of the Act. Local 183 certified numerous contractors during the summer of 1991, Sundial being one of them. Local 183 pursued a No Board Report with respect to Sundial at the same time it sought No Board Reports with respect to approximately 40 other con­tractors. No Board Reports were obtained in May 1992. Fourteen days following the issuance of the No Board Report, Local 183 was in a position to commence a legal strike against Sundial. In the circumstances, we do not view Sundial's execution of a collective agreement with Local 183 on July 20, 1992 as a violation of the Act but rather as a natural consequence of the operation of the Act.

35. Accordingly, we find that Mr. Carvaiho caused Yellow Brick to violate sections 65 and 68 of the Act when, in the face of the Bricklayers' existing entitlement to represent bricklayers and bricklayers' apprentices and stonemasons and stonemasons' apprentices of Bayritz in all non-ICI sectors of the construction industry, he caused the incorporation of Yellow Brick for the sole pur­pose of granting Local 183 voluntary recognition with respect to all employees of Sundial engaged in construction work.

36. The section 91 application is dismissed as against Local 183.

SECTION 1(4) AND 64 APPLICATION

Argument

37. The applicants submit that the responding parties in Board File No. 1424-93-R carry on associated or related activities under common control or direction within the meaning of section 1(4) of the Act. Section 1(4) provides 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.

38. Mr. Carvalho acknowledged that all of the responding parties are engaged in perform­ing masonry work in the ICI and residential sectors of the construction industry and that he is involved in the operation of all of the responding parties. He took no position with respect to whether the responding parties should be declared to be one employer for the purposes of the Act.

39. Local 183 acknowledges that the responding parties carry on associated or related activ­ities under common control and direction within the meaning of the Act but asserts that the Board should exercise its discretion and refuse to grant a declaration with respect to Sundial on the basis of the Board's jurisprudence that indicates that section 1(4) should not be applied after bargaining rights have been obtained by another trade union (see: Industrial Mine Installations Limited, [1972] OLRB Rep. Dec. 1029; Al Smith Plastering & Partition Co. Limited, [1981] OLRB Rep. Feb. 129; and Hardrock Forming Company, [1987] OLRB Rep. July 1003). Further, Local 183 submits that the Board should not issue a declaration with respect to Sundial as such a declaration would imme­diately create a conflict between Local 183 and the Bricklayers' established bargaining rights. Sun­dial would be become bound by conflicting collective agreements with two unions involving the same work and would be drawn into a jurisdictional dispute between them (see: Hardrock Forming Company, supra).

40. Counsel for the applicants argues that the considerations expressed by the Board in KNK Limited, [1991] OLRB Rep. Feb. 209 should cause the Board to reconsider the Industrial Mine Installations line of cases relied on by Local 183. Counsel argues that the Industrial Mine Installations line of cases were decided at a time when the Board typically determined whether to issue a related employer declaration by weighing the importance of preventing an erosion of bar­gaining rights against the prejudicial consequences of a declaration to the employer. Where the trade union had delayed in bringing the section 1(4) application, prejudice to the employer was assumed and the Board would typically exercise its discretion so as to refuse to issue a declaration. In counsel's submission, commencing with KNK Limited, the Board no longer equates delay with prejudice to the employer and places greater importance on preventing an erosion of bargaining rights. Counsel submits that KNK Limited stands for the proposition that the Board is now more concerned with preventing the erosion of bargaining rights and less concerned with the prejudicial consequences of a declaration to an employer. Counsel argues that the Industrial Mine Installa­tions line of cases must be revisited with the Board's new focus in mind. Counsel relies on Tn-County Contracting, [1991] OLRB Rep. Dec. 1416; and Square One Carpentry Inc., [1988] OLRB Rep. Oct. 1112.

41. With respect to the fact that a declaration would result in Sundial becoming bound to two overlapping collective agreements, counsel for the applicants suggests that, if the Board was to find that Sundial provided employer support to Local 183, the Board could declare Local 183's col­lective agreement to be null and void. If the Board is not inclined to declare Local 183's collective agreement to be null and void, counsel argues that the Board should not let the fact that its decla­ration would lead to jurisdictional disputes to cause the Board to refuse to issue a declaration. In counsel's submission, the fact that the Board is now able to handle jurisdictional disputes in an expeditious fashion significantly diminishes any prejudice which may be caused to the combined entity.

42. In response, counsel for Local 183 disputes that KNK Limited stands for the proposition advanced by the applicants. Local 183 argues that all the Board did in KNK Limited was re-exa­mine the question of prejudice. Whereas the Board had previously been willing to equate delay with prejudice, commencing with KNK Limited, the Board said it will look to determine whether the union's delay actually resulted in prejudice to the employer. In counsel's submission, KNK Limited did not in any way alter the factors considered by the Board in determining whether to grant a declaration and KNK Limited should not cause the Board to deviate from the Industrial Mine Installations line of cases in which it was determined that a declaration will not usually be made where bargaining rights have been acquired by another trade union.

Decision

43. The Board has exercised its discretion and refused to issue a related employer declara­tion in circumstances where such a declaration would create a conflict with the established bargain­ing rights held by another trade union. The Board's reasons for such refusal are set out in Industrial Mine Installations, supra, as follows:

17 Such an application of the section might result in amending or revoking existing bargain­ing rights and upset many rights, duties and obligations that may have been resolved through private negotiation to the point where they have found their way into existing collective agree­ments.

And similarly in Hard rock Forming Company, supra:

17 More fundamentally, however, a related employer declaration with either Delform or Ilena would immediately precipitate a jurisdictional dispute. In effect, the combined entity would become bound by conflicting collective agreements with two unions involving the same work and Delform would be drawn into a jurisdictional dispute between them. That is a recipe for collective bargaining discord with we should not lightly condone; moreover, the Board has always been reluctant to make a "related employer" declaration when the effect is to create a conflict with established bargaining rights held by another union (See: Al Smith Plastering and Partition Co. Ltd. [1981] OLRB Rep. Feb. 129). Even assuming, without finding, that Hardrock and Ilena are related and that Delform is related to Ilena as well, (a doubtful proposition), we do not think that a section 1(4) declaration is warranted in the circumstances of this case.

44. As the above excerpts indicate, the Board does not typically grant a related employer declaration in circumstances where the employees of the second company are represented by another union at the time the section 1(4) application is made on the basis that such a declaration would result in conflicting bargaining rights and disrupt the established labour relations of the par­ties concerned. Such consequences are viewed as sufficiently prejudicial to cause the Board to exercise its discretion and refuse to issue a declaration.

45. In KNK Limited, supra, the Board remarked that, prior Board decisions dealing with the issue of whether the Board would refuse to issue a related employer declaration on the basis of the union's delay in bringing the application, had began to inject fault on the union's part as a cri­terion for the exercise of the Board's discretion:

46. In determining whether a 1(4) declaration should be made, a number of Board decisions mention either "delay" or alternatively, what the union "knew or ought to have known". In effect, having ruled early on that section 1(4) was not an unfair labour practice provision requir­ing fault on the employer's part, the Board began to inject "fault" on the union's part as a crite­rion for the exercise of the Board's discretion. But a union could not be held "at fault" if it did not know what was going on, and in language reminiscent of that used under termination section 59 ("sleeping on its bargaining rights"), the Board turned to the further consideration of knowl­edge or constructive knowledge or what the union "should have known with due diligence". However, these decisions must be read with care, and in light of both statutory changes, and the Board's evolving jurisprudence.

47. The Board went on to set out a number of reasons why the Board must be very careful in linking the exercise of its discretion to the actual or presumed state of a union's knowledge dur­ing the period of delay including the fact that such an approach shifts the focus of the Board's enquiry away from the purpose of section 1(4) and the prejudice flowing from the union's delay:

48. How does the employer establish what the union "knew" or "ought to have known" where, as here, there was no express representation from the union, and no notice to the IBEW, that KNK was to be or had become Mr. Harvey's non-union successor to Agincourt? How does care­ful counsel establish "constructive knowledge"? By demonstrating circumstances from which the Board could reasonably infer that the trade union knew, "must" have known or "should" have known and acted upon, the facts upon which a section 1(4) application could be based. That is why we heard testimony about the size and prominence of the company's signs, where its trucks are parked, KNK's proximity to Buster's bar, the drinking habits of electricians, whether union officials were likely to be there~ whether there was a KNK business card posted near the telephone which officials might have seen and connected to Mr. Harvey, Mr. Harvey's table talk, how often he was on a job site and in what apparent capacity, the number of union busi­ness agents available to do detective work, and so on. This focus on the union's behaviour leads inevitably to uncertainty and more protracted litigation, and shifts the focus from the purpose of section 1(4), the prejudice to a related employer if a declaration is granted, and how that preju­dice is related, if at all, to conduct of that union. It is also difficult to harmonize with section 1(5) of the Act.

49. Section 1(5) was added to the regulatory scheme in 1975, and reflects a legislative presump­tion that a trade union will not know much about the internal arrangements of a business, despite the various means available to it, including the filings required by certain statutes regu­lating commercial activities. Any purported limitation on access to 1(4) relief based on the union's "due diligence" or knowledge, must take into account this legislative development. We fail to see how the Board in the exercise of its discretion can dismiss an application because it concludes that the union "should have known" or found out what the Legislature has quite clearly indicated a trade union will not be expected to know. And, again, those questions shift the focus from the purpose of section 1(4) and the prejudice to the employer if a declaration is made.

50. The problem raised in this case, that was not addressed in Stark, Faro Structural Steel, John Hayman or Capricorn, is the actual connection between the union's knowledge or conduct, and the prejudice which KNK would suffer should a related employer declaration be made. What prejudice flows from the union's behaviour (delay, knowledge, etc.) which is not inherent in the declaration itself, whenever it is made?

51. As the above excerpt indicates, the Board determined in KNK Limited that delay, in and of itself, will not normally be sufficient to cause the Board to exercise its discretion to refuse to issue a declaration. Rather, the Board will focus on whether any actual prejudice, which is not inherent in the declaration itself, flows from the delay. In our view, KNK Limited does not stand for the proposition that, in determining whether to grant a declaration, the Board now considers the preservation of bargaining rights to be inherently more important than the avoidance of preju­dicial consequences. We note that, in the relatively short excerpt from KNK Limited set out above, the Board refers to the Board's focus as being on the prejudicial consequences of a declaration no fewer than three times. We do not view the Board's determination in KNK Limited as warranting a revisiting of the Industrial Mine Installations line of cases.

52. In the present case, the applicants hold bargaining rights with respect to bricklayers, stonemasons and their apprentices employed by Bayritz in the ICI sector and in all non-ICI sectors within Board Area 8. The applicants also hold bargaining rights with respect to bricklayers, stone­masons and their apprentices employed by Dakota in the ICI sector and in all non-ICI sectors within Board Area 8 as well as all labourers in all non-ICI sectors within Board Area 8. Local 183 has bargaining rights with respect to labourers employed by Bayritz Masonry in all non-ICI sectors within Board Area 8 which, as explained above, appears to be understood by all concerned to be bargaining rights with respect to labourers employed by Bayritz Construction Ltd. Local 183 also holds bargaining rights with respect to all bricklayers, bricklayers apprentices and construction lab­ourers employed by Sundial in all non-ICI sectors within Board Area 8. No trade union currently holds bargaining rights with respect to the employees of Yellow Brick.

53. If the Board was to declare Sundial and Bayritz to be one employer for the purposes of the Act a jurisdictional dispute would immediately arise as a result of Local 183 and the applicants' both possessing bargaining rights with respect to bricklayers and their apprentices employed by the combined entity in all non-ICI sectors of the construction industry within Board Area 8. Likewise, if the Board was to declare Bayritz and Dakota to be one employer, a jurisdictional dispute would immediately arise as a result of the understanding that Local 183 possesses bargaining rights with respect to the labourers of Bayritz and the fact that Local 2 possesses bargaining rights with respect to the labourers employed by Dakota. A similar dispute would arise if the Board was to declare a combination of the responding parties to be one employer which included both Sundial and Dakota as Local 183 holds bargaining rights for the labourers employed by Sundial and Local 2 holds such bargaining rights with respect to labourers employed by Dakota. It is clear that declaring Bayritz to be one employer with Sundial and Dakota, either individually or in combination, would cause jurisdictional conflicts to arise.

54. The applicants suggest that the creation of jurisdictional disputes should not dissuade the Board from granting a declaration as such disputes can now be determined by the Board in an expedited fashion with much less cost to the Board or the parties. While it is true that the Board is now able to process and hear a jurisdictional dispute much more quickly than was the case in the past, litigating such disputes can still impose a considerable cost on the parties. Parties to a juris­dictional dispute are now required to file detailed briefs containing a statement of the issues in dis­pute including a detailed description of the work in dispute and the facts on which they intend to rely. Thus, a considerable amount of time must be spent by the parties preparing fairly lengthy and detailed pleadings. In addition, the parties are required to file multiple copies of the documents specified in the Board's Rules with the Board and all other parties. It is not unusual for the materi­als filed by each party to the dispute to comprise a number of bound volumes. The cost, in terms of the time and materials required to prepare an application or response, can be considerable. Thus, we do not accept that, the new statutory provisions and Board Rules which have considerably reduced the number of hearing days required in order to litigate a jurisdictional dispute, suffi­ciently obviate any prejudice caused by the creation of such disputes.

55. We would also observe that the result which the applicants seek is tantamount to a revo­cation of Local 183's certificate with respect to Sundial which was obtained as a result of a majority of employees expressing their desire to be represented by Local 183. In contrast, the representa­tion rights asserted by the Bricklayers were obtained by voluntary recognition agreement such that, the employees' wishes concerning the Bricklayers acting as their bargaining agent, are unknown.

56. The applicants already possess bargaining rights with respect to Dakota and, in response to a question from the Board, indicated that a declaration with respect to Dakota would not serve any labour relations purpose. Accordingly, quite apart from the reasons expressed above, the Board would not issue a declaration with respect to Dakota.

57. In response to counsel's submission that, if Local 183's bargaining rights with respect to Sundial can constitute a bar to a declaration there is nothing to prevent an employer from avoiding a union's bargaining rights by simply setting up a new company and immediately voluntarily recog­nizing a new union, we would simply state that those are not the facts of this case as it concerns Sundial. We note, however, that Local 2 was a participant in similar conduct in the instant case when, four days following the Board's certification of Local 183 to represent labourers employed by Bayritz, proceedings in which Local 2 participated, Local 2 entered into a voluntary recognition agreement to represent, inter alia, labourers employed by Dakota.

58. In the unique circumstances of this case and given the relative quagmire of bargaining rights which have been acquired by Local 183 and the applicants with respect to employees of Bay-ritz, Sundial and Dakota, we are not persuaded that a section 1(4) declaration with respect to a combination of these entities is warranted. No trade union presently holds bargaining rights with respect to the employees of Yellow Brick. The parties to this application appear to consider Bay­ritz Masonry to be one and the same as Bayritz Construction Ltd. and have conducted themselves in this manner to date. No jurisdictional disputes would arise as a result of the Board declaring Bayritz Construction Ltd., Bayritz Masonry and Yellow Brick to be one employer for the purposes of the Act.

59. The application under section 1(4) of the Act is allowed in so far as it relates to Bayritz Construction Ltd., Bayritz Masonry Ltd. and 986153 Ontario Ltd. c.o.b. as Yellow Brick Masonry. The application is dismissed as against Dakota Masonry Ltd. and Sundial Bricklayers Inc.

60. The applicants did not pursue its request for a declaration of a sale or transfer of a busi­ness. Therefore, insofar as this application relates to section 64 of the Act, it is dismissed.

61. In summary, having regard to the evidence and representations of the parties, the

Board:

a) declares that Bayritz Construction Ltd., Bayritz Masonry Ltd. and 986153 Ontario Ltd. c.o.b. as Yellow Brick Masonry constitute one employer for the purposes of the Act;

b) declares that Bayritz Construction Ltd., Bayritz Masonry Ltd. and 986153 Ontario Ltd. c.o.b. as Yellow Brick Masonry are bound to the Provincial Collective Agree­ment between the International Union of Bricklayers and Allied Craftsmen and The Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen and the Masonry Industry Employers Council of Ontario

c) declares that Bayritz Construction Ltd., Bayritz Masonry Ltd. and 986153 Ontario Ltd. c.o.b. as Yellow Brick Masonry are bound to the collective agreement between the International Union of Bricklayers and Allied Craftsmen, Local 2 and Bayritz Construction Ltd.;

d) declares that Bayritz Construction Ltd. ,Bayritz Masonry Ltd. and 986153 Ontario Ltd. c.o.b. as Yellow Brick Masonry have breached sections 65 and 68 of the Labour Relations Act.

58. The Board is not satisfied that any further or other relief is appropriate in the circum­stances and, more specifically, the Board is not satisfied that this is a case in which it is either nec­essary or appropriate to order that notices be posted or otherwise distributed to employees.

59. On September 9, 1994, the applicants filed a request for reconsideration under section 108(1) of the Act. The circumstances in which the Board will generally reconsider a decision have been enunciated in numerous Board decisions (see: K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185; John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096). Generally speaking, the Board will not reconsider a decision unless: a party intends to introduce new evidence which could not previously have been obtained by reasonable diligence and such evi­dence, if adduced, would be practically conclusive; a party intends to raise objections or make rep­resentations not already considered by the Board which the party did not have an opportunity to raise previously; or the request raises significant and important issues of Board policy. The request for reconsideration filed by the applicants does not indicate an intention to adduce new evidence or make representation which have not already been considered by the Board. The request indicates that the applicants do not accept the Board's decision and feel that it was improperly reached. This, however, does not constitute grounds for reconsideration of the Board's decision. For the foregoing reasons, the request for reconsideration is hereby denied.