[1996] OLRB REP. MARCH/APRIL 321
0869-95-R Teamsters, Chauffeurs, Warehousemen and Helpers, Local 880, Applicant v. Tilbury Concrete Transport Inc. and Tilbury Concrete Inc., Responding Parties v. Canadian Union of Operating Engineers and General Workers, Intervenor
BEFORE: Jerry Kovacs, Vice-Chair, and Board Members W. N. Fraser and G. McMenemy.
APPEARANCES: Michael KIug and Frank Biekx for the applicant; Albert Chodola, Steven Bezaire and Ernie Mailloux for the responding party Tilbury Concrete Inc.; Albert Chodola, Steven Bezaire and Larry Mailloux for the responding party Tilbury Concrete Transport Inc.; Sean Clancy for the intervenor.
DECISION OF THE BOARD; April 3, 1996
- In this application under subsection 1(4) of the Labour Relations Act, Teamsters, Chauffeurs, Warehousemen and Helpers, Local 880 (hereinafter referred to as "the Teamsters" seeks a declaration that Tilbury Concrete Transport Inc. (hereinafter referred to as "Tilbury Transport") and Tilbury Concrete Inc. (hereinafter referred to as "Tilbury Concrete") constitute a single employer for the purposes of the Act.
Pursuant to a certificate issued on January 31, 1995, the Teamsters represent truck drivers employed by Tilbury Transport. The Canadian Union of Operating Engineers and General Workers (hereinafter referred to as "the CUQE") represents employees of the other responding party, Tilbury Concrete, pursuant to a certificate issued on April 21, 1995. Tilbury Concrete began to employ truck drivers, for the first time in its corporate history, in late March or early April, 1995. It reached a collective agreement with the CUOE in April or May of 1995.
Upon learning that the CUOB had obtained bargaining rights in respect of the new truck drivers at Tilbury Concrete, the Teamsters filed this application. The CUOE filed an intervention, taking the position that the Teamsters' application was "untimely and inappropriate.
Despite having filed an intervention, the CUOE did not participate further in the proceedings. Nonetheless, the CUGE occupies a critical place in the facts of the case.
Our Conclusions
Are the responding parties entities that are under common control or direction and that carry on associated or related activities? For reasons expressed below, we find that they are.
Should the Board exercise its discretion to make the declaration contemplated by section 1(4) of the Act? Although the conditions exist for a finding of relatedness, a declaration would disturb existing CUOE bargaining rights. Nonetheless, the CUOE has failed to defend its bargaining rights, effectively abandoning them. It does not rest with an employer to defend the bargaining rights of the employees' bargaining agent. In all of the circumstances of this case, the Board finds it appropriate to exercise its discretion to declare that the responding parties constitute a single employer for the purposes of the Act. The declaration is effective as of the date that the responding parties became related employers. Since that date pre-dates the CUOE's certification as bargaining agent, the Teamsters' bargaining rights prevail. In the circumstances, it is unnecessary for the Board to determine whether there was employer support for the CUOE.
Background Facts
The responding parties are parts of a family enterprise that began in 1977 when Ernie Mailloux started operation of a ready mix concrete business under the name of Tilbury Concrete Limited. He operated a batching plant in Tilbury from that time until 1982. In that year the business went bankrupt and a bank seized the assets of the company. Those assets, and the business itself, were purchased by the numbered company 507822 Ontario Inc. (hereinafter referred to as "507822"), then owned by Ernie Mailloux's friend, Andre Lanoue. By the end of 1983, Ernie Mailloux had purchased 507822 and once again became the owner of the business. Although he abandoned the corporate entity known as Tilbury Concrete Limited, he maintained 507822 as the vehicle to carry on the business of "Tilbury Concrete". The business prospered and expanded to include a substantial transportation division, with several trucks and drivers delivering concrete mostly in the Tilbury area. 507822 was not named as a responding party in these proceedings.
Ernie Mailloux's family has always participated in the business. His brother worked with him until 1992 when he left to start his own company. Ernie Mailloux's wife, Linda Mailloux, is a director of 507822, although she plays no active role in the management of the business. In addition, Ernie Mailloux's children, Larry, Mary Jane and Nicole, have had increasingly larger business roles over recent years. Both Larry and Mary Jane have worked in the business for a considerable length of time. The children's part in the business changed formally when Ernie Mailloux substantially restructured his business in 1992.
As Ernie Mailloux described, part of the reason for the change in structure was to permit Larry Mailloux "to do something on his own.. .to be his own boss". Ernie Mailloux broke his company, 507822, into two parts - Tilbury Concrete and Tilbury Transport. These were two new corporate entities formed in 1992. Tilbury Concrete's directors were Ernie Mailloux and his wife Linda, and this company purchased the batching plant and all of the'hard assets associated with it. Ernie Mailloux testified that Tilbury Transport was formed for his three children, who became the three directors as well as shareholders (Larry had a controlling number of shares and the shares of the youngest, Nicole, were held in trust by her mother). Tilbury Transport bought the transportation division from 507822. 507822 retained an interest in both companies, as a significant shareholder. The parties spent considerable time arguing about the nature of the shares and the degree of control that such share ownership gave 507822 (i.e., Ernie Mailloux) over the children's business. However, it was not disputed that 507822 loaned most or all of the money necessary for the purchase and gained shares in exchange. Similarly, 507822 loaned the money for the purchase of Tilbury Concrete by Ernie and Linda Mailloux. Ernie Mailloux remains the sole shareholder of 507822.
Under this new arrangement, the truck drivers became employees of Tilbury Transport rather than of 507822. Tilbury Transport's main business was the delivery of concrete produced by Tilbury Concrete. Tilbury Concrete did not keep trucks or employ truck drivers, concentrating instead on the operation of the batching plant.
The business picture changed again in September of 1994 with the opening of a new batching plant in Windsor, owned by 1078303 Ontario Inc. (hereinafter referred to as "the Windsor plant"; like 507822, it was not named as a responding party in these proceedings). Although that numbered company is owned by Linda Mailloux alone, she plays no role in the daily management of the business. The opening of the Windsor plant caused changes for both Tilbury Transport and Tilbury Concrete. Tilbury Transport's main business had been delivery of concrete from Tilbury Concrete's plant to customers in the Tilbury area. Larry Mailloux and his company were situated in Tilbury in the same office as Tilbury Concrete, and drivers were dispatched out of that location. After the Windsor plant opened, Tilbury Transport's main business became delivery of concrete for the Windsor plant. Larry Mailloux now spends the great majority of his time at the Windsor plant and his company's trucks and drivers are stationed at the Windsor plant.
With its trucks stationed at Windsor, Tilbury Transport was no longer as readily available to service Tilbury Concrete and its customers in the Tilbury area. In the latter part of 1994, Ernie Mailloux suggested to his son that Tilbury Transport needed to acquire more trucks if it wished to continue to handle the majority of loads for Tilbury Concrete in Tilbury. Both men knew that Tilbury Transport was not in a financial position to acquire more trucks. Ernie Mailloux then told his son that he planned to order trucks for Tilbury Concrete. This sequence of events was confirmed by the testimony of Rob Leclerc, a Tilbury Transport driver who was called by the Teamsters as a witness in the hearing of this matter. Leclerc learned in November or December of 1994 that there was an order for new trucks because he was assigned to drive a new truck back to the vendor; at the time, he assumed that it was Tilbury Transport rather than Tilbury Concrete that was adding a truck to its business.
Despite any plans that it may have had to purchase trucks, Tilbury Concrete did not employ truck drivers in late 1994 or early 1995. And the evidence does not suggest that the drivers employed by Tilbury Transport knew or ought to have known that Tilbury Concrete would employ its own drivers later in 1995. When Rob Leclerc was assigned to return a new truck in late 1994, he believed that the truck was being purchased by Tilbury Transport. That was not an unreasonable conclusion, given the fact that Tilbury Concrete owned no trucks at the time and that Tilbury Transport - the former trucking division of Ernie Mailloux's business - was the sole trucking part of the family enterprise. Moreover, because Ernie Mailloux was responsible for most, if not all, of the financing of his son's purchase of the trucking division, it might not be unreasonable to assume that the two men might have discussed whether Ernie Mailloux or 507822 should lend more money to Tilbury Transport to allow it to acquire more trucks. However, that possibility was not explored in the hearing and is not obvious on the facts before us.
This was the state of affairs at the start of 1995 when the Teamsters conducted their organizing campaign and filed application for certification as bargaining agent for the drivers of Tilbury Transport. According to Frank Biekx, the union's business agent, the drivers were not certain of the precise name of their employer. This was not because they were aware that different corporate entities existed. It was because their pay-cheques and other company documents simply bore the words "Tilbury Concrete" (i.e., the short form of business name that Ernie Mailloux has used for all corporate vehicles). Through the certification process the union learned the proper name of the drivers' employer, and a certificate issued in respect of Tilbury Transport. Its geographic scope covered the Counties of Essex and Kent, which include both Tilbury and Windsor. Frank Biekx testified that the union did not know and was not informed of the existence of the other corporate entity (i.e., Tilbury Concrete Inc.). As Biekx commented, that fact would probably not have mattered to the union because Tilbury Concrete did not employ truck drivers and the union would have had no reason to believe that it ever would employ truck drivers. Tilbury Transport appeared to be the only one of the family companies that would operate a trucking business.
Biekx says that the Teamsters first heard rumour of the existence of another corporation during other litigation before the Board, also involving the concrete industry, in the spring of 1995. The Teamsters soon learned that the Board had certified the CUOE on April 21, 1995 as bargaining agent for all employees of Tilbury Concrete in the Counties of Essex and Kent. (Under cross-examination, Ernie Mailloux answered that the two Tilbury Concrete drivers who became the CUOB unit happened to be his brother-in-law and his friend. As discussed in greater length below, the Teamsters asked the Board to infer that there was employer support for the CUOE.) Neither the CUOE nor Tilbury Concrete named the Teamsters as a party interested in their proceedings. The Teamsters therefore had no notice of those certification proceedings. On May 29, 1995, the Teamsters filed the instant application for a declaration that Tilbury Transport and Tilbury Concrete are related employers. On July 11, 1995, an intervention was filed in the name of the CUOE by Nick Sajatovich (from a Windsor address). The intervenor asserted that the CUOE had entered into a collective agreement with Tilbury Concrete effective May 15, 1995 and that the Teamsters' application was "untimely and inappropriate".
Relatedness of the Responding Parties
In addition to the facts outlined above, other evidence disclosed significant overlap in the operations of Tilbury Transport, Tilbury Concrete and the Windsor plant. Tilbury Transport uses office space at Tilbury Concrete's plant in Tilbury; Tilbury Transport owns no office equipment and there was no evidence that either charges the other anything for that space. Larry's sister, Mary Jane (one of Tilbury Transport's directors) works for Tilbury Transport at that office, handling paperwork and dispatching the drivers. Jane Haskell, an employee of Tilbury Concrete works in that same office. She is the bookkeeper for both Tilbury Concrete and the Windsor plant, and she does occasional work for Tilbury Transport when there is an overload of paperwork. In addition, she processes some benefit forms for Tilbury Transport drivers. Ernie Mailloux describes himself as the manager at Tilbury, where he spends most of his work time. He stated that he manages Jane Haskell, the 2 Tilbury Concrete drivers, and Mary Jane. Both Ernie Mailloux and Mary Jane dispatch the Tilbury Concrete drivers. Similarly, although Ernie does most of the batching at the Tilbury Concrete plant, Mary Jane occasionally does that work.
Both Ernie Mailloux and Larry Mailloux acknowledged that Linda Mailloux did not manage the Windsor plant. Since the opening of the plant, Larry Mailloux has stationed his trucks there and spends most of his time there. Although he does not claim to manage the Windsor plant, it was not clear who otherwise had that authority. Larry Mailloux suggested that Kevin King, the batcher, ran the Windsor plant, but then admitted that he has authority to give directions to Kevin King. He further admitted that he supervises the operator of the front-end loader. Larry Mailloux also occasionally operates the front-end loader and does batching. And when Tilbury Concrete dispatches its drivers on occasion to Windsor, Larry Mailloux dispatches them from the Windsor plant to the customer.
With respect to the drivers employed by Tilbury Transport, Larry Mailloux explained that he dispatches them, devises their work schedules, and signs their pay-cheques. Although he takes responsibility for discipline of his employees, he admits that his father occasionally speaks to his employees about employment-related matters. Rob Leclerc, a Tilbury Transport driver, testified that Ernie Mailloux called him into his office to discuss absenteeism. He said also that Mary Jane once informed him that Ernie Mailloux had approved a vacation request that Larry Mailloux had earlier denied. Another Tilbury Transport driver, Jerome Lanoue (called by the responding parties) said that drivers talked to Larry about things like vacation requests, but that Jane Haskell (the Tilbury Concrete bookkeeper) processed vacation pay. He also noted that it was not unusual for Ernie to give directions to the Tilbury Transport drivers.
A number of other factors show the inter-relationship between the operations of father and son. As already noted, Tilbury Transport's purchase of the trucking division of 507822 depended on the loan that 507822 (controlled by the father) provided to Tilbury Transport. Larry Mailloux may not have been in a position to describe the nature of the shares that 507822 holds, nor to answer whether Tilbury Transport had ever paid dividends to 507822. However, there was no doubt in his mind that his father's company had loaned the money necessary to start Tilbury Transport. He knew that he makes annual payments (or repayments) of some sort to 507822 or his father, but he did not have an idea of what those amounts had been. Beyond financial support, Ernie Mailloux provides other business support to his son (as his son no doubt provides support to him). Prior to the opening of the Windsor plant, Tilbury Transport almost exclusively served Tilbury Concrete. Now Tilbury Transport almost exclusively serves the Windsor and Tilbury plants. Although Larry Mailloux spends the great majority of his time serving the Windsor plant, he still speaks to his father on business matters on a daily basis. His father recommended legal counsel, and the two shared the same counsel in these proceedings. Most significantly, Ernie Mailloux has acted, free of charge, as the sole representative of Tilbury Transport in collective bargaining with the Teamsters.
In our view, the conditions necessary for a declaration under subsection 1(4) of the Act are clearly present. The subsection provides 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.
The purpose of the related employer provision was described by the Board in Brant Erecting and Hoisting, [1980] OLRB Rep. July 945 at paragraph 12:
……Section 1(4) was enacted in 1971 and deals with situations where the economic activity giving rise to employment or collective bargaining relationships regulated by the Act, is carried out by or through more than one legal entity. Where such legal entities carry on related business activities under common control or direction, the Board is empowered to pierce the corporate veil. Section 1(4) ensures that the institutional rights of a trade union, and the contractual rights of its members, will attach to a definable commercial activity, rather than the legal vehicle(s) through which that activity is carried on. Legal form is not permitted to dictate or fragment a collective bargaining structure; nor will alterations in legal form undermine established bargaining rights. In this respect the purpose of section 1(4) is similar to that of section 55 [now section 69] which preserves the established bargaining rights and collective agreement when a "business" is transferred from one employer to another...
- Before the Board may consider the exercise of its discretion to declare that certain entities constitute one employer for the purposes of the Act, three conditions must be satisfied:
(i) there must be more than one entity involved;
(ii) the entities must be engaged in associated or related activities;
(iii) the entities must be under common control or direction.
There was no dispute that this case involves more than one entity. Only two of the entities, Tilbury Transport and Tilbury Concrete, were named as responding parties. Counsel for the responding parties argued that the Board's analysis of the relatedness of the two responding parties could not take into account any of the facts regarding the other Mailloux family businesses, i.e., 507822 and the Windsor plant. We see no reason why our consideration of the relatedness of the two responding parties should ignore facts regarding other unnamed entities. Of course, the Board recognizes that any eventual declaration that it might make could not name an entity that are not party to the proceeding. The applicant also recognized this principle and for that reason made a mid-hearing attempt to amend its pleadings to add 507822 as a responding party. Having regard to our view that the applicant could have discovered and named 507822 prior to the hearing, and noting the prejudice that would result to the responding party's case at that point in the hearing, the Board denied the motion. However, counsel for the responding parties failed to explain, and we have failed to discern, any reason why the configuration of parties to a proceeding must limit the relevance of evidence in a proceeding.
In this case, an analysis of the nature of the activities or businesses and the control or direction of the responding parties leads inevitably to the web of evidence regarding the Mailloux family businesses. The obvious ties between all of the entities means that the evidence is relevant to our determination of the relatedness of the named responding parties.
Counsel for the responding parties argued that Tilbury Transport and Tilbury Concrete did not carry on associated or related activities. The former is a trucking business and the latter is a concrete manufacturing and construction business. Counsel acknowledged that Tilbury Concrete is now also in the trucking business (and that this is the reason the Teamsters brought this application), but argued that the timing of this activity somehow affects determination of relatedness. This is not so. In Brant Erecting and Hoisting, supra, the Board commented on the effect of the legislative amendment that added the phrase "whether or not simultaneously" to subsection 1(4):
……Section 1(4) does not require that related business activities under common control or direction be carried on simultaneously or contemporaneously. This issue was clarified in 1975 by the addition to section 1(4) of the phrase "whether or not simultaneously". The amendment reflects a legislative recognition that the essential unity and identity of an economic activity (which gives rise to employment) may be preserved even though the legal vehicle through which the activity is carried on will not operate simultaneously; and, business may be effectively transferred from one corporate entity to another, without any of the indicia of a "transfer of a business" which might trigger the application of section [631. This is especially the case in the construction industry where many of the employers will not have the permanence or investment in fixed plant and equipment characteristic of a manufacturing concern. A small construction company can move from jobsite to jobsite or place to place, assembling tools, equipment and a labour force as required after it has made a successful bid. There may be no established economic organization, labour force or configuration of assets. A single principal may have several companies which are used, more or less interchangeably, so that bidding is done and work performed through whichever company is convenient. In such circumstances there may be an effective transfer of business between related businesses without any apparent disposition of assets, inventory, trade, names, goodwill, employees, etc. Similarly, where capital requirements are minimal and business relationships transitory, it is relatively easy to wind up one business, and create another one which carries on essentially the same business as before.
The amendment extends the ambit of section 1(4) to situations in which one business entity is actively carrying on business and the other is not. It is not necessary to have shared participation in a common business endeavour or even contemporaneous economic activity. The relationship between the business entities is a functional rather than a temporal one. Businesses or activities are "related" or "associated" because they are of the same character, serve the same general market, employ the same mode and means of production, utilize similar employee skills, and are carried on for the benefit of related principals. If these criteria are met, two businesses may be "related" within the meaning of section 1(4) even though their activities are carried on through different corporate vehicles and are not carried on simultaneously. It is evident that the Legislature has created a regime of collective bargaining law which significantly modifies the common law notions of "privity of contract" or "the corporate veil”……..
In the same decision, the Board commented on the meaning of the phrase "associated or related activities or businesses" at paragraph 15:
….It is not necessary to have shared participation in a common business endeavour or even contemporaneous economic activity. The relationship between the business activities is a functional rather than a temporal one. Businesses or activities are "related" or "associated" because they are of the same character, serve the same general market, employ the same mode and means of production, utilize similar employee skills, and are carried on for the benefit of related principals. If these criteria are met, the businesses may be "related" within the meaning of section 1(4) even if their activities are carried on through different corporate vehicles and are not carried on simultaneously. It is evident that the Legislature had created a regime of collective bargaining which significantly modifies the common law notions of "privity of contract" or "the corporate veil".
The point of the applicant's case is to enforce a statutory right to protection of bargaining rights that attach to a "definable commercial activity". Here, the definable commercial activity is the trucking division of the Mailloux family enterprise. The applicant's sole concern is that part of the activity or business. When the Teamsters obtained bargaining rights, Tilbury Transport was the only part of the family enterprise that carried on trucking business. Tilbury Concrete now carries on trucking business as well. It commenced that activity to serve the very same market that Tilbury Transport serves - the batching plants owned within the Mailloux family. In particular, it delivers loads in the Tilbury area that Tilbury Transport once exclusively delivered. Tilbury Transport still occasionally delivers such loads but is now almost wholly dependent on the Windsor plant.
As for the third criterion of relatedness, we find that the two responding parties are under common control or direction within the meaning of the Labour Relations Act. Whatever the purpose of corporate structure or commercial form of the entities, the businesses are under common control from a labour relations perspective.
The two responding parties (and, indeed, all of the entities involved) stem from the original business developed by Ernie Mailloux. It was Ernie Mailloux's decision to split his enterprise into two entities in 1992, and it was his decision to pass on the trucking division of his business to his children. Through 507822, Ernie Mailloux provided most or all of the financial support that was necessary for the purchase of the business. Although Larry Mailloux is obviously capable and responsible, and while he may eventually control the business(es) to a greater degree, his father still plays a critical role in determining his business. Tilbury Transport has always been almost entirely dependent on the Mailloux family batching plants. While Linda Mailloux owns the Windsor plant according to corporate form, there is no doubt that Larry and Ernie Mailloux control and direct that plant in substance. The responding parties are parts of a family enterprise which is represented to the public as a single, integrated business. Despite small differences, the logos on the trucks and on the billing documents of Tilbury Transport and Tilbury Concrete are as obviously similar as the very names of the companies. Further, all of the family enterprises advertise together (in the yellow pages of the phone directory) under the name of "Tilbury Concrete".
Finally, Ernie Mailloux plays some role in the daily direction of workforces of both responding parties, and the takes the lead if not sole role in negotiations with trade unions.
For all of these reasons, we find that the conditions exist for a declaration of relatedness. Further, the relatedness commenced at the time of the responding parties' incorporation in
Appropriateness of a Declaration
The responding parties argued that the Board should not exercise its discretion to make the declaration in the event that it found relatedness.
Counsel for the responding parties suggested that the mischief contemplated by section 1(4) is not present in this case. Because the complement of drivers employed by Tilbury Transport has remained steady, counsel argued that there has been no erosion of bargaining rights. Counsel noted that the Teamsters still represent the same number of drivers that they represented at the time of certification, and posited that the union is merely avoiding certification proceedings in respect of the additional drivers employed by Tilbury Concrete. We reject the argument. As the Board has decided in earlier cases, erosion of bargaining rights can occur even without diminution of workforce complement or business volume (see Kustom insulation Ltd., [1979] OLRB Rep. June 531). In this case, Ernie Mailloux first pressed Larry Mailloux to expand the number of trucks and drivers in the Tilbury Transport workforce. Had that happened, those drivers would have fallen within the Teamsters' bargaining unit. Instead, the work was diverted to Tilbury Concrete which had never before employed truck drivers and which had been created in 1992 as a corporate entity for the batching plant as opposed to the trucking division of 507822. Accordingly, we find that the mischief contemplated by section 1(4) is present in this case.
The more compelling argument of the responding parties was that a related employer declaration would disturb the existing CUOE bargaining rights and collective agreement. As a corollary to that point, the responding parties noted that a declaration in favour of the Teamsters would interfere with the rights of Tilbury Concrete employees to select their own bargaining representative, the CUOE.
In response, the Teamsters took the position that the certificate issued to the CUOE on April 21, 1995 ought to be revoked and that any collective agreement with the CUOE was null and void. In the Teamsters' submission, the CUOE application for certification was untimely because the Teamsters had bargaining rights for Tilbury Concrete employees. As the Teamsters acknowledged, this conclusion depends on a declaration by the Board that Tilbury Transport (in respect of whose employees the Teamsters had a certificate) and Tilbury Concrete were related employers as of the time of their incorporation, i.e., prior to either union's obtaining of bargaining rights. Citing sections 13 and 49 of the Act then in force (now sections 15 and 53 of the Act), the Teamsters took the further position that employer support of the CUOB should cause the Board to revoke the CUOE certificate and to treat the collective agreement with Tilbury Concrete as null and void.
The Teamsters contended that Ernie and Larry Mailloux deliberately diverted trucking work to Tilbury Concrete in order to avoid the costs of paying drivers in a Teamsters' bargaining unit. Counsel submitted that circumstantial evidence points to the further conclusion that Ernie Mailloux supported the CUOE's organization of his two drivers. First, the drivers who supported the CUOE application for certification happen to be one friend and one relative of Ernie Mailloux. Second, the collective agreement between Tilbury Transport and the CUOE is dated prior to the date the Board issued a certificate to the CUOE. Even if that date was in error, counsel submitted that it is suspicious that Ernie Mailloux was willing to sign a collective agreement within days of certification, given that he has bargained for months with the Teamsters on behalf of Tilbury Transport without concluding a collective agreement.
Counsel for the applicants urged the Board to draw negative inferences in respect of the failure of the CUOB to appear at the hearing to defend against the Teamsters' allegations. The responding parties point out that they have responded to those allegations and that nothing in the evidence (including cross-examination of Ernie Mailloux) discloses employer support for the CUOE or bad faith on Ernie Mailloux's part in the decision to hire drivers through Tilbury Concrete. Counsel for the responding parties further noted that the applicant did not bother to call the two Tilbury Concrete drivers as witnesses.
As for the CUOE itself, there was considerable confusion regarding its intervention and its position in respect of any of these issues. The intervention form filed with the Board named Nick Sajatovich as contact person and listed a Windsor address for the union. Although served with notice of the hearing (which was held in Windsor), neither Mr. Sajatovich nor anyone from the Windsor office appeared before the Board on any of three hearing dates. However, Sean Clancy attended before the Board on the first of the hearing dates and asserted that he was a representative of the CUOE based in the union's national office in Toronto. The responding parties challenged Mr. Clancy's authority to represent the intervenor in the absence of any proper notice from the intervenor that its representative would be Mr. Clancy rather than Mr. Sajatovich. Moreover, it appeared that an internal dispute within the CUOE put into issue the authority of Mr. Sajatovich to act on behalf of the CUOE. The CUOE national office was apparently unaware that Mr. Sajatovich had obtained bargaining rights in respect of Tilbury Concrete.
None of these contentious matters regarding the CUOE intervention or its position with respect to issues before the Board required any determination by the Board. Mr. Clancy advised that, if permitted to make representations on behalf of the intervenor, he would advise the Board that the CUOE no longer wished to intervene. Mr. Sajatovich's failure to appear had the same effect; the Board treated the intervention as one which was not pursued. Taking that into account, Mr. Clancy withdrew from the hearing without seeking any decision by the Board on his right to speak on behalf of the intervenor in this case.
In the result, the CUOE has taken no position on the state of its bargaining rights in respect of Tilbury Concrete.
As counsel for the applicant so aptly put the point, this is a case where the declaration would have no purpose unless the Board were to disrupt the existing bargaining rights of the CUOB. The Teamsters seek a declaration that the responding parties were related as of their inception in 1992, such that the Teamsters bargaining rights with Tilbury Concrete would be retroactive to the date (January 31, 1995) on which they obtained bargaining rights in respect of Tilbury Transport. In that result, the CUOE certification application in April of 1995 would have been untimely and ought to have been dismissed by the Board.
In this case, therefore, the interests of the CUOE are a significant factor. In other cases where a related employer declaration would have created conflict with the established bargaining rights of another trade union, the Board has exercised its discretion and refused to issue the declaration. (See Bayritz Construction Ltd., [1994] OLRB Rep. Oct. 1283 and the cases cited therein.) Despite its concern for the preservation of bargaining rights like those held by the Teamsters in this case, those rights are not inherently more important than the prejudicial consequences that would flow from the declaration.
Despite the consequences that would flow from a declaration in this case, the CUOE has not defended its bargaining rights. Where the Board has refused to exercise its discretion to issue a related employer declaration because of another union's established bargaining rights, it has taken into account the other union's defence of its bargaining rights. Another union's intervention in the proceedings allows the Board to assess the labour relations conflict that would result from issuance of a declaration. In this case, the CUOE did pursue a defence of its interests. Mr. Sajatovich failed to appear on the hearing dates. To the extent that Mr. Clancy claimed to represent the CUOE, he would have advised the Board that the CUOE was abandoning its intervention. Finally, no affected employee made any representation to the Board.
In the circumstances of this case, we see no reason to give primary consideration to the prejudicial consequences that a declaration would cause to the CUOE. Therefore, the existence of the CUOE's bargaining rights is not sufficient reason for the Board to decline to issue the declaration.
The responding parties' further argued that a declaration should not issue because the Teamsters delayed unduly in making this application. We reject that argument. At the time the Teamsters obtained bargaining rights, the union had no reason to believe that it was dealing with a multi-entity situation. Indeed, this is a family enterprise that holds itself out simply as "Tilbury Concrete" to the public and to its employees (or at least to the Tilbury Transport drivers who signed Teamsters' union cards). Further, Ernie Mailloux acted as employer negotiator in Tilbury Transport's collective bargaining with the Teamsters. The union discovered the multi-entity reality only after the CUOE had already obtained bargaining rights and quickly signed a collective agreement with the employer. The instant application followed in short order. For these same reasons, we do not find that this is a case where the union left its bargaining rights exposed through delay in a clear multi-entity situation. (See Industrial Mine Installations Ltd., [1972] OLRB Rep. Dec. 1029.) In any event, the Board is not inclined to refuse to make a declaration simply because of an applicant's delay. The Board focuses on whether any actual prejudice that is not inherent in the declaration itself would flow from the delay. (See KNK Limited, [1991] OLRB Rep. Feb. 209). In this case, we have considered and disposed of the concern of actual prejudice, i.e., the displacement of CUOE bargaining rights.
For these reasons, we find that this is an appropriate case for the Board to exercise its discretion and to issue a declaration under section 1(4).
In the circumstances, we find it unnecessary to conclude whether the circumstantial evidence before us leads to a finding that CUOE certification and collective agreement were employer-supported. We would observe, however, that it appears that the CUOE collective agreement was negotiated and signed prior to the issuance of the Board's certificate. Nonetheless, in all circumstances, it is not necessary for us to make any finding as to whether the CUOE should not have been certified in accordance with section 15 or that the CUOE collective agreement should be deemed null and void pursuant to section 53.
In summary, the Board declares:
(i) that Tilbury Concrete Transport Inc. and Tilbury Concrete Inc. are related employers for the purposes of the Act;
(ii) that they were related as of the time of their incorporation in 1992;
(iii) that the Teamsters' bargaining rights with respect to the responding parties are effective as of the date on which the Teamsters obtained bargaining rights with respect to Tilbury Concrete Transport Inc., i.e., January 31, 1995; and
(iv) that the CUOE no longer represents employees of Tilbury Concrete Inc.