[1996] OLRB REP. FEBRUARY 95
4637-94-R; 3471-95-G International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades, Applicant v. Magnum Glass Inc., Magnum Associates Ltd.. Magnum Glass Installations Ltd., Hardie Glass & Aluminum Inc., Responding Parties; International Brotherhood of Painters and Allied Trades, Local 1819, Applicant v. Magnum Glass Inc., Magnum Associates Ltd., Magnum Glass Installations Ltd. and Hardie Glass & Aluminum Inc., Responding Parties
BEFORE: Jules B. Bloch, Vice-Chair.
APPEARANCES: Elizabeth M. Mitchell, Dermot Lynch, Gayle Okrainec and Edward Okrainec Jr. for the applicant; Walter Thornton and Stuart Hardie for the responding parties.
DECISION OF THE BOARD; February 1, 1996
1The style of cause in respect of Board File No. 4637-94-R is amended by adding Hardie Glass & Aluminum Inc. as a responding party.
2Board File No. 4637-94-R is a application brought by the International Brotherhood of Painters and Allied Trades (the "Painters" or the "union") in respect of sections 69 and 1(4) of the Labour Relations Act, 1995 (the "Act"). Board File No. 3471-95-G is a grievance, brought by Painters, Local 1819, pursuant to section 133 of the Act in the construction industry concerning the interpretation, application, administration or alleged violation of the Provincial ICI collective agreement.
3At the start of the hearing the responding parties in attendance, Hardie Glass and Aluminum Inc. ("Hardie") and Magnum Associates Limited ("Magnum Associates" or "Associates") made a preliminary motion in respect of the 69/1(4) application.
4Hardie and Magnum Associates submit that the Board should bar this application because the Painters on February 23, 1995 filed an application for certification (File No. 4206-94-R) in relation to Magnum Associates. That application for certification makes no reference to a claim for existing bargaining rights or a claim that there exists a collective agreement between the applicant and Associates. Associates and Hardie assert that the applicant has made an admission against interest by filing the certification application, an admission that the applicant did not and does not hold bargaining rights in respect of their companies. Consequently, they assert, there should be a bar to the bringing of the instant application, pursuant to section 1(4) or 69, which application is inconsistent with and would undermine the certification application admission that the applicant held no bargaining rights at the time they brought the application for certification.
5By way of background information, on January 1, 1986 Mr. Edward Okrainec on behalf of Magnum Glass Installations Limited ("Installations") executed a voluntary recognition agreement with the applicant binding it to the Glaziers Provincial Agreement in the ICI sector and Board Area 8. Subsequent to that, the company complied with the agreement and made monthly contributions to the applicant's various trust funds, in the name of Magnum Glass. In October 1994, as a consequence of the death of Edward Okrainec, Sr., Magnum Glass ceased operations. In February, 1995, the Painters learned that its bargaining unit work was allegedly being performed by non-union employees at the Doctor's Hospital. The general contractor was Harbridge and Cross and the applicant found out that the contract was let to Magnum Associates. The Painters' business representative met with Mr. Stewart Hardie, and an arrangement was made whereby two union employees from the hall were sent to the job site and Mr. Hardie agreed to hire those employees. On February 23, 1995 the applicant filed a certification application in Board File No. 4206-94-R in respect of the Harbridge and Cross job site. The application makes no reference to existing bargaining rights or a collective agreement between the applicant and Magnum Associates.
6On March 20, 1995 after the Painters had received the responding parties' response in the certification application, and after the Board appointed a Labour Relations Officer, the Painters filed the instant application, pursuant to sections 69 and 1(4) of the Act.
7The respondent submits that an application for certification in respect of Magnum Associates is a representation by the applicant that it does not have bargaining rights for Magnum Associates. In the responding parties' view, this amounts to an admission against interest in the context of the applicant's 69 and 1(4) application. The responding parties rely on Brown Boveri Howden Inc., [1987] OLRB Rep. Mar. 316; Johnson Controls Ltd., unreported decision dated March 8, 1988; L'Abbe Construction (Ontario) Ltd., [1987] OLRB Rep. Oct. 1191; J. A. Wilson Display Ltd., [1983] OLRB Rep. July 1080, and Associated Paving Company Ltd., unreported decision dated June 19, 1995. Further, the responding parties submit that a formal admission may be made by a statement in the pleadings in the application for certification in Board File 4206-94-R. In the responding parties' view, the admission cannot be withdrawn by the applicant except with the leave of the Board or the consent of the responding parties. The responding parties do not consent to the applicant withdrawing the admission referred to above.
8The Painters assert that the Act allows them to make arguments in the alternative in respect of a certification application and an application pursuant to sections 69 and 1(4). In the Painters' view, sections 69 and 1(4) involve a forensic study of fact in respect of whether existing bargaining rights in respect of Magnum Glass apply to either Hardie or Magnum Associates, as related employers or as successor employers within the meaning of the Act. In any event, the Painters assert that they are entitled to bring both applications in the alternative. Although that may seem inconsistent on its face, it is not so when one considers the Painters' goal of either maintaining bargaining rights with the responding parties or commencing bargaining rights with the most recent alleged spin-off company. In any event, the goal for the Painters is to have bargaining rights in place with the group of responding parties.
9The Painters further assert that an admission against interest is a rule of evidence. It was developed as an exception to the hearsay rule. In the applicant's view, it is unreasonable that an evidentiary rule can create a bar to a union's application in respect of another proceeding within the Act. In short, assert the Painters, the Board is being asked to apply a hearsay exception rule created for a specific evidentiary purpose as a bar in respect of the exercising of a statutory right under the Act.
10Further, the Painters assert that although in the narrow context, an application for certification followed by an application pursuant to section 69 or 1(4) of the Act might be seen as inconsistent, in the wider context it should be seen as perfectly reasonable. In the Painters' view, a section 69 and 1(4) application takes a very long time to litigate and the ultimate purpose is to preserve bargaining rights from the original company to the successor or related companies. An application for certification on the other hand, should everything go according to the union's plan, takes a relatively short time and bargaining rights would in this view issue in very short order. The union asserts that it decided to take the course of action it did because of the time factor involved and because its view was that it could rely on the section 69/1(4) application in the alternative.
11In any event, asserts the trade union, any conduct which the union has engaged in can be dealt with in respect of the section 1(4) application in that the alleged conduct would go to the discretion of the Board at that time. (See Andreynolds Company Limited, [1990] OLRB Rep. Nov. 1107.)
Decision
12It is my view that no bar should apply in respect of the section 69/1(4) application. The trade union has made applications, at different times, for both certification and relief under sections 69/1(4). These two avenues or applications are not mutually exclusive. The section 1(4)/69 process is in effect a forensic review of facts which may or may not lead to a remedy that preserves existing bargaining rights. The certification application engages a process to acquire bargaining rights. The two types of applications rest upon different functions and claim different remedial relief, but it is not at all apparent why applicants cannot seek to make either, or both.
13While it may well be that the applicant could not have been successful in both (unless the 1(4) application seeks to preserve bargaining rights acquired for the first time through the certification itself), a union is not required to abandon one alternative approach in order to bring the other. The Act itself contemplates alternative procedures in respect of allowing a trade union to proceed by certification application or by section 69/1(4) applications or both. Had the legislature wanted to curtail an applicant's right to apply in the alternative they would have done so clearly in the statute. Counsel for the responding parties conceded that, had the union in its application for certification simply reserved its right to bring a section 69/1(4) application, in the alternative, there would be no issue that the trade union was entitled to commence both types of applications. We see little merit in holding that the applicant is precluded from asserting a right or claiming a remedy only because it did not use words in filing the applications that indicated that they were based upon alternative positions.
14The cases of Brown Boveri Howden Inc., supra; L'Abbe Construction Inc.; supra, Johnson Controls Ltd., unreported; J. A. Wilson Display Ltd., supra; and Associated Paving Company Ltd., supra, are cases which deal with the proposition that a collective agreement is a bar to certification. In other words, if there is an application for certification and any party can raise a valid collective agreement relating to the bargaining unit applied for, then there are no bargaining rights open for an applicant to apply for. The applicant would have to wait for the open period to make an application for certification.
15For all the reasons above we would dismiss the preliminary motion.
16I remind the parties that I made certain oral rulings in respect of pleading requirements and those rulings should be attended to prior to the next hearing dates.
17The hearing on the merits will begin on March 6 and March 7, 1996 at the Boardroom, 6th Floor, 400 University Avenue, Toronto, Ontario, commencing at 9:30 a.m.