1151-00-R Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. 3576698 Canada Inc. c.o.b. as Michael Seltzer’s Le Biftheque Steakhouse, Responding Party.
BEFORE: Harry Freedman, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
APPEARANCES: Norman L. Jesin and P. Daly for the applicant; Donna M. D’Andrea and Charles Shuchat for the responding party.
DECISION OF THE BOARD; October 3, 2000
1This is an application for certification in which the applicant seeks to represent a bargaining unit of carpenters and carpenters’ apprentices employed by the responding party. The applicant had in its application named Le Biftheque as the employer of the affected employees with an address in Boucherville Quebec.
2Counsel for 3576698 Canada Inc. c.o.b. as Michael Seltzer’s Le Biftheque Steakhouse (the “Owner”) asserted that her client was the responding party to which the application related, but that it was not the employer of the carpenters who were at work on the application date at the project named in the application. Based on the representations of counsel for the Owner, the Board amended the name of the responding party so that the application is made in respect of 3576698 Canada Inc. c.o.b. as Michael Seltzer’s Le Biftheque Steakhouse.
3Both the applicant and Owner made reference to the job site to which this application relates as a restaurant at 25 Carlson Court in Toronto. The employees for whom the applicant seeks bargaining rights were engaged in construction work at that job site on the application date. Counsel for the Owner acknowledges that the Owner owns the restaurant facility that is the subject of this application. The Owner asserted in its response that it did not employ the carpenters who were working at the job site on the application date. In the submissions filed after the representation vote, counsel for the Owner submitted that those persons working at the Carlson St. job were employed by Bernard Marroni, the contractor engaged by the Owner to complete the construction of the restaurant.
4There are a number of issues raised in this application for certification in addition to determining who was the actual employer of the three persons the applicant claimed were doing carpentry work on the application date. If the Owner is found to be the employer, the Owner asserts that it is not an employer within the meaning of section 126 of the Labour Relations Act, 1995, S. O. 1995, c. 1 (the “Act”) on the basis that it is a non-construction employer and therefore cannot be subject to an application for certification under the construction industry provisions of the Act. The applicant asserts that whether or not the Owner is a non-construction employer is not relevant because an application for certification under the province-wide bargaining provisions of the Act is not limited to only employers in the construction industry who are not non-construction employers. The applicant also asserts that if the Owner is a non-construction employer and applications for certification under the province wide bargaining provisions are limited to employers in the construction industry as defined by section 126 of the Act, then it seeks certification under the industrial provisions of the Act. Finally, the parties disagreed over whether one of the three persons who were at work on the application date was employed in the bargaining unit on that date. The Owner asserts that the person in dispute was doing the work of a construction labourer and was not performing the work of a carpenter on the application date.
5The parties agreed that the Board should first hear the parties’ evidence with respect to whether the Owner was the employer of the carpenters for whom the applicant seeks bargaining rights and whether the Owner is a non-construction employer within the meaning of the Act.
6Counsel for the Owner called Charles Shuchat as her first witness. Mr. Shuchat indicated at the beginning of his evidence that he was a director of the Owner and that the Owner operates the Michael Seltzer’s Le Biftheque Steakhouses in Toronto. He also testified that the Owner had been incorporated in the latter part of 1999. During his examination-in-chief, Mr. Shuchat indicated that the Owner is responsible for only the restaurant operating under the name Michael Seltzer’s Le Biftheque Steakhouse on Carlson Court and that the other restaurant in Toronto operating under that name is owned by another corporation. When that evidence was adduced, the Board expressed some concern about the position that the Owner had taken in its written submissions. In particular, counsel for the Owner, in her representations filed with the Board on July 31, 2000 stated at paragraphs 10-14:
The Responding Party submits that the proper name of the Responding Party is 3576698 Canada Inc. The corporate entity is carrying on business as “Michael Seltzer’s Le Biftheque Steakhouse”.
The Responding Party submits that it is not the “Employer” of the carpenters who are the subject of this Application for Certification.
The Responding Party submits that it is in the Restaurant business. It has contracted with a contractor, Bernard Marroni, to complete the construction of its newest restaurant at 25 Carlson Street, Etobicoke, Ontario.
The Responding Party submits that it has had an agreement with Bernard Marroni for over twenty (20) years to construct steakhouses known as “Le Biftheque Steakhouse” or “Sam Seltzer’s Steakhouse”. Since 1980, Mr. Marroni has been involved with the construction of the following restaurants: 4 in Quebec; 1 in Hull; 2 in Boston; 4 in Florida; and 2 in Toronto (one of which is the subject of this Application).
Until approximately two (2) years ago, Mr. Marroni invoiced the Responding Party through his company known as Marroni Construction Company. That company no longer exits; Mr. Marroni is sixty-nine (69) years old and has retired from the Company. Nonetheless, Mr. Marroni continues to work. In particular, he continues to do contract work for the Responding Party.
It was obvious that the introductory testimony of her first witness was inconsistent with the representations she had filed on July 31. The Board and the applicant understood from those representations that the Owner had engaged Mr. Marroni for the construction of restaurants operating under the name of Le Biftheque Steakhouse or Sam Seltzer’s Steakhouse for some twenty years and that the construction of the restaurant that is the subject of this application was a continuation of that relationship and activity. It was apparent from Mr. Shuchat’s testimony that the Owner had not had an agreement with Mr. Marroni “for over twenty years to construct steakhouses”. The Owner has been in existence for less than a year.
7The Board interrupted the testimony of the Mr. Shuchat so that counsel for the applicant and counsel for the Owner could meet with a Labour Relations Officer to try and sort out who was responsible for the construction of the restaurant on Carlson Court, who was responsible for the construction of the other Michael Seltzer’s Le Biftheque Steakhouse in Toronto, and who had had that more than twenty year relationship with Mr. Marroni under which steakhouses had been constructed in Quebec, Boston, Florida and Toronto. Counsel for the applicant, quite understandably, expressed concern about whether the Owner was in fact the correct responding party to this application and reserved the right to ask that Le Biftheque be the name of the responding party.
8Following the parties’ meeting with a Labour Relations Officer, the Board reconvened the hearing. Counsel for the applicant indicated that he had been advised during the parties’ meeting with the Officer that there is a head franchisor (Michael Seltzer) that has granted to a group which included Mr. Shuchat the right to open and operate restaurants in Ontario under the name Michael Seltzer’s Le Biftheque Steakhouse (the “Ontario Group”). The Ontario Group is the Ontario franchisor of those restaurants. Each of the restaurants is owned by a different corporate entity with the Owner being just one example. Counsel for the Owner indicated that Mr. Marroni had his relationship with the head franchisor, not with either the Ontario Group or the individual entities that own those restaurants. Counsel for the applicant indicated that under these circumstances, he wished to file an application under section 1(4) of the Act and to obtain from counsel for the Owner the correct names and addresses for the Ontario Group, the head franchisor and Mr. Marroni. Mr. Shuchat and counsel for the Owner undertook to provide that information to counsel for the applicant by the close of business on Tuesday, October 3, 2000. Counsel for the applicant indicated that he would attempt to file an application under section 1(4) of the Act shortly thereafter.
9Although Mr. Shuchat began his testimony, the Board indicated to the parties that when this matter proceeds, Mr. Shuchat will start his testimony over again, with the effect that the Board has not received any evidence from Mr. Shuchat so that Mr. Shuchat can instruct counsel without any of the restrictions applicable to a witness in the midst of examination-in-chief. The Board had set November 6, 2000 as the date for the continuation of the hearing of this matter. Now that the applicant will be filing an application under section 1(4) that will be related to this application, it seems to us that this application and the application that the applicant will be filing under section 1(4) of the Act should be listed for hearing together.
10This matter is referred to the Registrar to be listed for hearing together with the application under section 1(4) of the Act that counsel for the applicant indicated he would be filing in the very near future. While the applicant would prefer to have the next hearing take place on November 6, 2000, whether that will happen is up to the Registrar as this panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board