[1998] OLRB REP. SEPTEMBER/OCTOBER 829
0413-98-R Paul Decesare, Applicant v. The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Responding Party v. Malfar Mechanical Inc., Intervenor
BEFORE: Harry Freedman, Vice-Chair.
APPEARANCES: Ian Werker and Paul DeCesare for the applicant; David McKee and Brian Christie for the responding party; David Cowling and Frank Micoli for the intervenor.
DECISION OF THE BOARD; September 22, 1998
1The style of cause is hereby amended to reflect the correct name of the responding party: "The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada".
2This is an application under section 63 of the Labour Relations Act, 1995 (the "Act") for a declaration that the responding party no longer represents the employees in the bargaining unit for which it is the bargaining agent. By decision dated May 8, 1998, the Board directed a representation vote be taken among employees in the following bargaining unit:
all journeymen and apprentice plumbers, steamfitters, pipefitters, and welders employed by Malfar Mechanical Inc. in the ICI sector of the construction industry in the Province of Ontario.
3The Board noted in that decision that as the responding party sought to have the application dismissed under section 63(16) and filed particulars in support, the ballot box was sealed and the Board directed any party or person who wished to make representations with respect to the representation vote and any other issue relating to this application to do so within seven days of the vote. As a result of receiving representations, this application was listed for hearing before the Board to deal with all issues related to it.
4At the hearing convened before me on September 15, 1998, counsel for the applicant and counsel for the intervenor submitted that this application had been made in respect of more than simply the ICI sector of the construction industry. They submitted that the responding party and its Local 46 held bargaining rights in the residential sector of the construction industry and that the application herein related to the ICI sector as well as to all other sectors of the construction industry. Following submissions on this issue from counsel for the applicant and counsel for the intervenor, I did not find it necessary to hear submissions from counsel for the responding party and made the following oral ruling:
The applicant and intervenor argue that the application herein relates to both the ICI sector and all sectors of the construction industry other than the ICI sector. It was agreed before me that there were employees employed only in the ICI sector of the construction industry on the date of application. The applicant and intervenor argue that the Board should treat this application in the same way as it treats certification applications in the construction industry; i.e. try to avoid making sector determinations by taking an expansive interpretation of section 63(2) of the Act.
Sections 63(2) and 158(1) are worded quite differently. Section 63(2) requires that an application be made by an employee in the bargaining unit. Section 158(1) provides that an application may relate to the ICI sector and includes all employees in an appropriate geographic area without regard to sector. [It is not necessary for there to be employees in the ICI sector for an application for certification to relate to the ICI sector under section 158(1). See Bill 204; Labour Relations Amendment Act 1979, S.O. 1979, c. 113; Bill 73; Labour Relations Amendment Act, 1980 (No. 1), S.O. 1980, c. 31; Report to the Minister of Labour Concerning Representations by the Toronto - Central Ontario Building and Construction Trades Council on Bill 204 (the Adams Report); Pelar Construction Ltd., [1981] OLRB Rep. Feb. 210, at para. 15; Colonist Homes Ltd., [1980] OLRB Rep. Dec. 1729 at para. 8; and Patricia Hughes, "Province Wide Bargaining in the ICI Sector of the Construction Industry: The Legal Framework", Law Society of Upper Canada, Continuing Legal Education Program -Construction Labour Relations - February 6, 1989.] The only employees of the intervenor who were employed on the application date were employed in the bargaining unit described in the ICI collective agreement between the responding party and the Mechanical Contractors Association of Ontario. There was no application made by any employee employed in any other bargaining unit. Thus, section 63(2), in my view, precludes having this application relate to any sector of the construction industry other than the ICI sector.
Therefore, this application is an application for a declaration terminating the bargaining rights of The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada in the ICI sector of the construction industry. The bargaining rights held in respect of other sectors of the construction industry are not affected by this application.
5Following delivery of that ruling, the parties made submissions with respect to the relevance and significance of Minutes of Settlement and a Board decision dated January 25, 1995 in which the Board declared that the intervenor and another corporation, Torontario Plumbing and Heating Inc. ("Torontario") were related employers. The principal of Torontario at that time is the applicant herein.
6Counsel for the responding party submitted that the Board's decision was a declaration that Torontario and Malfar were one employer under the Act. Therefore, the applicant was a principal of the employer of the employees affected by this application. Counsel argued that the Board should dismiss this application pursuant to section 63(16) of the Act on the basis that the employer, through the applicant, initiated the application. Counsel argued that the Board should determine that the January 25, 1995 Board decision constituted a single employer declaration. The applicant and the intervenor did not accept that the applicant's status with the intervenor was affected by the Minutes of Settlement and Board decision made more than three years prior to the application herein.
7Whether the January 25, 1995 decision has relevance to the status of the applicant did not need to be addressed until a decision was made about the meaning of that decision. It appeared to me, however, that whether the bargaining unit affected by this application was limited only to Malfar or extended to both Malfar and Torontario was a matter that would be affected by deciding if the Board's January 25, 1995 decision constituted a single employer declaration. I simply note in that regard that the parties agreed before me that Torontario cased being active following that decision and that it had no employees. Since the applicant is also the principal of Torontario, there was, in my view, no issue concerning notice of this application being given to any other persons or union.
8Following the submissions of counsel, I reserved my decision. When the hearing in this matter resumed on September 17, 1998, I delivered the following oral ruling:
In this application under section 63(16) of the Labour Relations Act, 1995, ("the Act") the scope of the bargaining unit to which this application relates was put in issue. I had already ruled earlier that this application relates only to the industrial, commercial and institutional sector of the construction industry. A second element of that issue was whether the application affected Malfar Mechanical Inc. ("Malfar") and Torontario Plumbing and Heating Inc. ("Torontario") or just Malfar. Torontario was party to Minutes of Settlement that resolved three Board proceedings (two referrals to arbitration and an application under section 1(4) and what was then section 64 of the former Labour Relations Act) involving the Ontario Pipe Trades Council, Malfar and Torontario.
The Board, in a decision dated January 25, 1995, set out those Minutes of Settlement and issued a declaration and orders. The relevant portion of the Minutes of Settlement stated:
The parties [The Ontario Pipe Trades Council, Malfar and Torontario] agree to settle these matters on the following basis:
(1) It is agreed that Malfar and Torontario are related employers as defined by the Labour Relations Act and that Torontario is bound by all bargaining rights and collective agreements that the Ontario Pipe Trades Council and its locals have with Malfar.
I note that the Minutes of Settlement do not provide that the Board was to make any orders or declarations implementing the Minutes of Settlement.
- The Board's decision recording the Minutes of Settlement stated in part:
Having regard to the Minutes of Settlement, the Board makes the following declarations and directions:
(a) the Board declares that Malfar and Torontario are related employers as defined by the Labour Relations Act, 1995 and that Torontario is bound by all bargaining rights and collective agreements that the Ontario Pipe Trades Council and its Local [sic] have with Malfar.
- Section 1(4) of the Act provides, in part:
- Where, in the opinion of the Board, associated or related activities or businesses are carried on ... by or through more than one corporation under common control or direction, the Board may ... treat the corporations ... 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 Act does not use the term "related employers"; rather it speaks of "associated or related activities or businesses" being "carried on ... under common control or direction." When those circumstances exist, the Board has the discretion to treat the entities that carry on associated or related activities or businesses under common control or direction as constituting one employer for purposes of the Act and to grant a declaration to that effect and other relief as is appropriate.
It is clear the Minutes of Settlement that gave rise to the Board's January 25, 1995 decision did not request the Board to make any declarations or orders; those Minutes recorded the parties' agreement that the two employers are "related employers as defined by the Labour Relations Act." Unfortunately, the Act does not define the term "related employer". It is nevertheless common ground among counsel before me that those Minutes of Settlement and Board decision meant that all of the circumstances that would permit the Board to exercise its discretion to make a single employer declaration under section 1(4) of the Act were present.
Counsel for the responding party went on to assert that the Board's decision was, in fact, a declaration that Malfar and Torontario were one employer for purposes of the Act. Counsel for the intervenor submitted that the Board's January 25, 1995 decision simply recorded the parties' settlement and that Torontario and Malfar remained two employers for purposes of the Act. Counsel for the intervenor further argued that it was unnecessary for the Board to determine that point and relied on the Board's decisions in Group 92 Mechanical, [1995] O.L.R.D. No. 4154, October 16, 1995 and Fix-it-All Plumbing and Heating Limited, (unreported) Board File No. 037 1-98-R, June 9, 1998 in which the Board dealt with termination applications in relation to only one of entities that comprised what the Board nevertheless found to be a single employer.
Those two decisions were made in applications seeking declarations terminating the bargaining rights of the unions which held them under collective agreements. Counsel for the intervenor argued that in both those cases the bargaining rights in issue flowed from a single employer declaration.
In the Group 92 case, the bargaining rights in issue did originate from a declaration issued by the Board in a decision dated August 14, 1995, [1995] O.L.R.D. No. 2995. The Board wrote in that decision at paragraph 2:
At the conclusion of the hearing, the Board provided a short oral decision, finding that Penn Mechanical Limited ("Penn") and Group 92 Mechanical Inc. ("Group 92") were a single employer within the meaning of section 1(4) of the Act. This decision was issued in written form on January 30, 1995.
- In the Fix-it-All case, the bargaining rights appeared to have resulted from a Board decision and order incorporating Minutes of Settlement. The Board's decision in Fix-it-All Plumbing & Heating Inc. (Board File Nos. 2475-95-G; 2476-95-R, unreported January 10, 1996) stated:
This is an application under sections 1(4) and 69 of the Act and a related application under section 133 of the Act.
The parties filed the following Minutes of Settlement: [Minutes of Settlement omitted]
Having regard to the Minutes of Settlement, the Board makes the following orders and declarations:
(a) Fix-it-All is bound by the provincial agreement between the Ontario Pipe Trades Council and the Mechanical Contractors Association of Ontario covering the ICI sector of the construction industry, commencing April 30, 1996. Fix-it-All is not bound by the Local 46 residential agreements;
(b) the parties are directed to comply with the Minutes of Settlement;
(c) these applications are otherwise withdrawn.
There was clearly no single employer declaration issued by the Board in the Fix-it-All proceeding; there was a declaration that Fix-it-All was bound by the provincial ICI collective agreement. Thus, in my view, the Fix-it-All decision is of no assistance to the applicant and intervenor on this issue.
In the Group 92 case, the fact of the single employer declaration was before the Board when it was considering the application for a declaration terminating bargaining rights; however, none of the parties before the Board in that case raised a concern about there being an application seeking to terminate bargaining rights in respect of only one part of the single employer and the Board did not do so of its own accord. Therefore, I am of the view that the Group 92 decision does not provide persuasive authority supporting the submission that the existence of a single employer declaration need not be considered when dealing with an application for a declaration terminating bargaining rights in relation to only one of the entities that were declared to be one employer for purposes of the Act.
Where the Board issues a single employer declaration in respect of entities working in the ICI sector of the construction industry, the entities become one employer for purposes of the Act and the ICI collective agreement. The ICI collective agreement by which those two entities become bound applies to them as a single employer, albeit an employer comprised of two parts. Thus, it follows that an application to terminate those bargaining rights must be made in relation to that single employer which is comprised of those two entities. The relevant bargaining unit for purposes of an application seeking a declaration to terminate those bargaining rights is composed of the employees of the employer - that is, the employees of both of the two entities that comprise the single employer. Therefore, I am of the view that it is necessary in this case to determine whether the Board's decision of January 25, 1995 included a declaration that Malfar and Torontario are one employer for purposes of the Act.
The Minutes of Settlement in this case did not request the Board to make a declaration. More importantly, there is, in my opinion, an important and significant distinction between having the Board declare that two entities are one employer for purposes of the Act and having the Board declare that two entities are related employers. Counsel for the applicant relied on the Board's decision in Dobben Group Inc., [1996] OLRB Rep. Feb. 57 to submit that the distinction between related employer and single employer declarations is well understood and that a finding of relatedness, i.e. related activities or businesses carried on under common control or direction, does not invariably result in the Board issuing a single employer declaration. The Board in Dobben Group Inc. wrote at page 58:
It is not disputed that all four of the responding parties are under the common control and direction of Lucas Dobb. Mr. Dobb is the sole officer and director as well as the individual responsible for the day-to-day operations of all of the responding parties. The issues to be determined are whether Con-Ex and the Dobben group of companies carried on associated or related activities or businesses and whether the Board should exercise its discretion to declare Con-Ex and the Dobben group of companies to constitute one employer for the purposes of the Act.
Although the Board held that Con-Ex and Dobben group of companies carried on associated or related activities or businesses it was not appropriate to declare that Con-Ex and the Dobben group of companies constituted one employer.
A finding of "relatedness" may give rise to a single employer declaration; it may also have significance in subsequent proceedings where the identities or functions of the persons who control the entities are in issue. There may well be other consequences that flow from a finding that two employers are "related". Finding two employers are related therefore may have some meaning other than being synonymous with a single employer declaration.
When questioned about the Board's jurisdiction to declare that Torontario was bound by the bargaining rights and collective agreements by which Malfar was bound in the absence of a single employer declaration, counsel for the intervenor submitted that the Board was not exercising its powers under section 1(4), but rather was declaring that Torontario had voluntarily recognized the responding party and that as a result of that voluntary recognition Torontario become bound by the collective agreements by which Malfar had been bound.
While one of the parties to the Minutes of Settlement may have thought it was obtaining a single employer declaration when it entered into those Minutes of Settlement and received the Board's decision, the words of the Minutes of Settlement and the Board decision mean what they say. Malfar and Torontario are related employers; they are not, as of today, one employer for purposes of the Labour Relations Act. If the parties to the Minutes of Settlement wanted the Board to issue a declaration that Malfar and Torontario constituted one employer for the purposes of the Act, they should have asked the Board to issue a declaration in that form.
Therefore, this application can continue in respect of the bargaining rights that relate only to Malfar in the ICI sector of the construction industry.
9Counsel for the responding party advised me following the ruling that the responding party would not be calling any evidence with respect to its allegations about the applicant's status with the intervenor. Furthermore, the parties agreed that the ballot box be opened and all of the ballots cast at the representation vote be counted.
10Therefore, upon agreement of the parties, I directed the ballot box be opened and the ballots counted.
11On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in opposition to the responding party.
12The Board declares that the responding party no longer represents the employees of Malfar for whom it has heretofore been the bargaining agent in the following bargaining unit:
all journeymen and apprentice plumbers, steamfitters, pipefitters, and welders employed by Malfar Mechanical Inc. in the ICI sector of the construction industry in the Province of Ontario.
13The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.