Ontario Labour Relations Board
[1995] OLRB Rep. June 783
4680-94-U Labourers' International Union of North America, Local 1059, Applicant v. 969774 Ontario Limited c.o.b. as Elgin Construction, Responding Party
BEFORE: Robert Herman, Vice-Chair, and Board Members F. B. Reaume and J. Redshaw.
APPEARANCES: J. Sack, Manuel S. Reis and Walter Medeiros for the applicant; Brett Christen, Robert Nicli and James Malpass for the responding party.
DECISION OF THE BOARD; June 1, 1995
11. This is an application in which the applicant union alleges a violation of section 73.1 of the Labour Relations Act, asserting that the responding employer, Elgin Construction, is unlawfully using replacement workers during a lawful strike.
22. The strike arises in the construction industry, and this application raises a significant question with respect to the requirements of the strike vote contemplated by section 73.1(2), and its particular application to the construction industry.
33. Before turning to this issue however, there was a preliminary issue dealt with by the Board orally at the hearing, involving the sufficiency of the "No Board" report or notice issued by the Minister. For that issue only, the instant Vice-Chair (as duly authorized) sat alone.
44. The "No Board" dispute arose because there are a number of different corporate entities which appear to carry on business under the same name, "Elgin Construction". The responding party is "969774 Ontario Limited, c.o.b. as Elgin Construction", but the "No Board" report was addressed to "1010976 Ontario Limited c.o.b. as Elgin Construction". The responding party took the position that the "No Board" was deficient, and that no valid "No Board" was issued to it, and that the union was therefore not in a position to legally strike against 969774 Ontario Limited.
55. The facts were essentially agreed between the parties, for purposes of this preliminary issue. By way of Memorandum of Agreement dated June 4,1993, "969774 Ontario Limited, c.o.b. as Elgin Construction" (or "969774") became bound to the collective agreement. 969774 agreed to become bound by and did become bound by the collective agreement between the Sewer and Watermain, Curb, Gutter and Sidewalk Contractors Section of the London and District Construction Association ("Sewer and Watermain Association"), and the applicant, Labourers Local 1059.
66. By letter dated October 31, 1994, Local 1059 gave notice to bargain to the Sewer and Watermain Association. Attached to the letter serving as notice to bargain was a Schedule listing those employers who were bound to the collective agreement between the parties, or for which the union held bargaining rights for their employees. Four different corporate entities, including "969774 Ontario Limited, c.o.b. as Elgin Construction" (but not including "1010976 Ontario Limited"), were listed as employers so bound.
77. 969774 responded to Local 1059 by way of letter dated November 4, 1994. In this letter, the company noted that it was not a member of the Sewer and and Watermain Association, and accordingly would not be bargaining together with it. The