Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, and its Locals 221 and 46 v. PCL Employees Holdings Ltd. et al.
3771-95-R Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, and its Locals 221 and 46, Applicants v. PCL Employees Holdings Ltd., PCL Construction Holdings Ltd., PCL Construction Resources Inc., PCL Construction Group Inc., PCL Constructors Inc., PCL Industrial Constructors Inc., PCL Industrial Construction Ltd., PCL Constructors Western Inc., PCL Constructors Eastern Inc., PCL Civil Constructors (Canada) Inc., PCL Construction Management Inc., and PCL Engineering Construction Inc., Responding Parties.
BEFORE: Inge M. Stamp, Vice-Chair.
DECISION OF THE BOARD; October 23 , 2000
This is a request for reconsideration by PCL Constructors Eastern Inc. and the other named responding parties of the Board’s decision dated July 2, 1998. In that decision the Board found the responding parties are related employers for the purposes of the Labour Relations Act, 1995 (the “Act”).
In support of this reconsideration request the responding parties assert the Board’s decision expands bargaining rights. The responding parties submit that the Board, in making its decision based on the finding in paragraph 56 “is clearly expanding bargaining rights which is contrary to the Board’s previous practice in exercising its discretion under section 1(4”). Paragraph 56 states:
The U.A. had bargaining rights for the ICI sector with PCL Industrial. PCL Industrial ceased operating in Ontario in 1989. That leaves PCL Eastern. The job in Aurora did in fact involve the kind of “process” work that presumably PCL Industrial would have done.
The responding parties submit: “…There was absolutely no evidence to support that finding. In fact, a list of all of the jobs performed by PCL Industrial in Ontario was filed with the Board and there was no similar job to the Aurora job which included only an ice making plant for a skating rink not an industrial process”.
Section 114(1) of the Act provides:
(1)The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
The Board in Coldmatic-Refrigeration of Canada Ltd., [1985] OLRB Rep. June 1009 describes the Board’s practice and policy with respect to reconsideration requests as follows:
The Board’s practice and policy regarding the granting of a reconsideration can be characterized as falling into two general camps. First, the Board will not grant a reconsideration generally unless a party shows that it can adduce new evidence which was not previously obtainable by reasonable diligence and that evidence would, if adduced, be practically conclusive. Or, the Board will not grant a reconsideration unless the party requesting it can satisfy the Board that it had no opportunity to raise those representations or objections previously. …
Paragraphs 57, 58 and 59 of the decision set out the Board’s reasons for making the related employer declaration.
Bargaining rights for the ICI sector includes all segments and are not limited to one or two of the three segments. The fact that the corporate structure for sound business reasons may divide itself along the lines of those segments, i.e. one entity doing all process work and another doing the civil work or "building" work cannot affect the applicant's bargaining rights in the ICI sector. Buildings erected as part of a refinery or manufacturing plant are covered by the same ICI rates and conditions of the provincial agreement as the installation of the various "process" equipment such as tanks, boilers, vessels, conveyors lines, filters, vacuums, pumps, etc. It is a distinction which is not reflected in the ICI legislation or the province‑wide collective agreement.
The correspondence filed in this application from Mr. Necula of August 6, 1986 and February 27, 1986 shows his labour relations involvement in the ICI collective agreements of a number of trades including the Pipefitters. These memos are headed interoffice memos and are directed to PCL Industrial. At the time Mr. Necula was the Labour Relations Manager for PCL Constructors Inc. and PCL Eastern Inc.
The applicant at all times had bargaining rights in the ICI sector for PCL Industrial. The fact that PCL Industrial did not do any "commercial" or "institutional" work does not take away the U.A.'s bargaining rights even if the division contemplated by the responding parties of ICI bargaining rights were possible. There is a risk to the U.A.'s bargaining rights in these circumstances. There is a strong central control in labour relations matters as evidenced in the correspondence from Mr. Necula in 1986. There is no evidence that these corporate entities operate any differently today. The findings in the Surdykowski's decision certainly show there is central direction and control.
The matters raised in the request for reconsideration were fully considered by the Board. The responding parties are restating their argument that the ICI sector should be divided into “industrial” on the one side and “commercial and institutional” on the other side to reflect the corporate divisions of the responding parties. This matter was fully argued at the time of the hearing. This request for reconsideration does not raise any issue that was not addressed, or could not have been addressed, at the time of the original hearing.
In the circumstances, this request for reconsideration is denied.
“Inge M. Stamp”
for the Board