Ontario Labour Relations Board

0670-00-R International Union of Painters and Allied Trades, Glaziers’ Local 1819, Applicant v. MallFronts International Inc., 1283205 Ontario Inc. and Michael Levy Glass Contractor Limited, Responding Parties.

0671-00-G International Union of Painters and Allied Trades, Glaziers’ Local 1819, Applicant v. MallFronts International Inc., 1283205 Ontario Inc. and Michael Levy Glass Contractor Limited, Responding Parties.

BEFORE: D. L. Gee, Vice-Chair.

DECISION OF THE BOARD; July 14, 2000

[1]. These matters are an application under section 69 and/or subsection 1(4) of the Labour Relations Act, 1995 (the “Act”) and a referral of a grievance to arbitration pursuant to section 133 of the Act. The application under section 69 and/or subsection 1(4) of the Act will be referred to herein as the “related employer application”. The referral of grievance to arbitration will be referred to herein as the “grievance referral”.

[2]. The Certificate of Delivery attached to the related employer application indicates that the application and all other materials as required by the Board’s Rules of Procedure were delivered to the responding parties by Data Rush Courier on May 30, 2000 no later than 5:00 p.m. The Certificate of Delivery attached to the grievance referral indicates that the grievance referral and all other materials as required by the Board’s Rules of Procedure were delivered to the responding parties by Purolator Courier on May 30, 2000 no later than 5:00 p.m.

[3]. On June 2, 2000 at 2:36 p.m., the Board faxed a Confirmation of Filing of Application under Section 69 and/or Subsection 1(4) of the Act (“Form B-16”) to the responding parties. The Form B-16 states as follows:

The responding parties (and any intervenor) must file five (5) copies of a response to the application with the Board not later than ten (10) days after the application was delivered to them.

[4]. On June 2, 2000 at 2:53 p.m., the Board faxed a Confirmation of Filing of Referral of Grievance to Arbitration (“Form B-67”) to the responding parties. The Form B-67 states as follows:

The responding party (and any intervenor) must file five (5) copies of a Request for Hearing and Notice of Intent to Defend/Participate not later than five (5) days after the date of this Notice. A filing fee of $214.00 (including G.S.T.) must be paid at the same time or the Request will not be accepted or processed by the Board.

A copy of the Request must be delivered to the Applicant and to every other party identified in the referral or Request before it is filed with the Board.

The failure to file a timely Request in the way required by the Board’s Rules of Procedure may result in the referral being decided without a hearing and without further notice to the defaulting party.

[5]. To date, the responding parties have failed to file a response in the related employer application and have failed to file a Notice of Intent to Defend/Participate in the grievance referral. The applicant, by letter dated July 4, 2000 has asked that the Board determine these matters based on the applicant’s filings.

[6]. The following sections of the Act and the Board’s Rules of Procedure are relevant to the Board’s determination in this matter:

Labour Relations Act, 1995

1. (5) Where, in an application made pursuant to subsection (4), it is alleged that more than one corporation, individual, firm, syndicate or association or any combination thereof are or were under common control or direction, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.

2. (13) Where, on an application under this section, a trade union alleges that the sale of a business has occurred, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.

3. (17) The chair may make rules governing the Board's practice and procedure and the exercise of its powers and prescribing such forms as the chair considers advisable.

4. (7) The Board is not required to hold a hearing if the responding party does not file any material.

(8) If the Board does not hold a hearing in the circumstances described in subsection (7), the Board may determine the matter with reference only to the material filed by the party referring the grievance.

(9) If the Board accepts the referral, the Board has exclusive jurisdiction to hear and determine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and subsections 48(10) and (12) to (20) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.

Board’s Rules of Procedure

39. An application or response may not be processed if it does not comply with these Rules.

40. The Board may decide an application without further notice to anyone who has not filed a document in the way required by these Rules.

41. If a party receiving notice of an application does not file a response in the way required by these Rules, he or she may be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing or consultation, if one is scheduled, and decide the case upon the material before it without further notice.

42. No person will be allowed to present evidence or make any representations at any hearing or consultation about any material fact relied upon which the Board considers was not set out in the application or response and filed promptly in the way required by these Rules, except with the permission of the Board. If the Board gives such permission, it may do so on such terms as it considers advisable.

43. If a responding party does not deliver and file a "Request for Hearing and Notice of Intent to Defend" (Form A‑87) in the way required by these rules, he or she may automatically be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing (if one is scheduled), and decide the case (or part of the case) upon the material before it without further notice.

44. Where the facts stated in the application are deemed to be true and the Board considers that it can make a finding of liability, but cannot determine the question of damages, the Board may decide the liability issue under Rule 160 and leave the damages issue to be determined at an oral hearing.

45. Where the Board decides or has decided a case (or part of a case) under Rule 160, the responding party may not file a Request or a response, or take any other step in connection with the application, other than a reconsideration application, except with the permission of the Board.

[7]. It is not the preferable way of proceeding for the Board to have to determine a matter in the absence of the participation of the responding parties. Sections 1(5) and 69(13) each place an important evidentiary burden upon the responding parties. Typically, many if not most of the salient facts in these types of applications are within the specific and often exclusive knowledge of the responding parties. Thus, the Act constructs a process intended to insure that the Board can make its determination possessed of all of the relevant information and, where a responding party declines to discharge its statutory evidentiary burden, there will likely be consequences.

[8]. In the present case, the applicant, after the deadline for the filing of a response in the related employer application and the deadline for the filing of a notice of intent to defend in the grievance referral, has asked that the Board issue a decision based on the materials contained in the applications.

[9]. The Board faced a somewhat similar scenario in the case of Delta Electric Eastern Limited, [1990] OLRB Rep. December 1259 and described its approach at paragraph 3 as follows:

3. It is in the nature of proceeding[s] of this type that most of the relevant facts are uniquely within the knowledge of the respondents. Before subsections 1(5) and 63(13) were added to the Act, decisions of the Board regularly observed that the applicant had to introduce some evidence to support the underlying factual assertion that a transaction or relationship of the sort contemplated by section 63 or subsection 1(4) had taken place or existed. The decision often observed that applicants could summons officers of the respondent corporations to give evidence with respect to the relevant facts if that was necessary in order to put some such evidence before the Board. In those decisions the Board also observed, however, that very little evidence might be required to satisfy the evidentiary burden on a trade union applicant when the relevant facts were largely, if not exclusively, within the knowledge of the respondent employers: Woodway Structural Components, [1971] OLRB Rep. Aug. 545; and see Beaver Engineering Ltd., [1973] OLRB Rep. Jan. 57. Subsections 1(5) and 63(13) of the Act now impose a burden of adducing evidence on respondent employers but do not expressly alter the legal burden of proof. Where an applicant trade union chooses, as this one did, to proceed with the application in the absence of the respondent employers, rather than enforce compliance with the statutory burden and our confirming order, it appears to us that the applicant still must adduce some evidence to support the findings necessary for the application to succeed. The obvious intent of subsections 1(5) and 63(13), however was that the absence of information peculiarly within the knowledge of the respondent should not stand in the way of success. We have taken that intent into account assessing the weight be given to the evidence the applicant was able to provide in these circumstances.

[10]. The facts asserted in the applications are neither as comprehensive or as complete as the Board would have had the benefit of had the responding parties chosen to participate in these matters. However, in the specific context of the Board’s comments set out in the Delta Electric Eastern Limited, supra, decision, the Board is satisfied that the applicant has asserted some facts (which pursuant to the provisions of the Act and the Rules set out above, the Board is prepared to deem to be true) that support the findings necessary for the applications to succeed.

[11]. The facts asserted and deemed by the Board to be true establish the following. On March 28, 1998, Michael Levy, president of Mallfronts International Inc. (“Mallfronts”) signed a voluntary recognition agreement with the International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades (the “Painters”) pursuant to which Mallfronts recognized the Painters as the bargaining agent for all glaziers and apprentice glaziers in its employ. As a result of the voluntary recognition agreement, Mallfronts became bound to the Painters’ Provincial ICI Collective Agreement. At the time of execution of the voluntary recognition agreement, Michael Levy anticipated that Mallfronts would obtain work with the Toronto School Board.

[12]. Mallfronts was successful in getting work with the Toronto School Board and performed such work pursuant to the terms of the Painters’ Provincial ICI Collective Agreement. By 1999, Mallfronts was no longer employing members of the applicant and the applicant understood that Mallfronts had ceased to operate.

[13]. In the summer of 1999, a representative of the applicant learned that glasswork was being performed at a store at Yorkville on Cumberland in Toronto by individuals who were not members of the applicant. The applicant learned that the work was being performed in the name “Levy Glass”, under the direction and control of Michael Levy.

[14]. The applicant caused name searches to be performed at the Ministry of Consumer and Commercial Relations. Neither Mallfronts nor Levy Glass were names registered with the Ministry. However, 1283205 Ontario Inc. (the “Numbered Respondent”) and “Michael Levy Glass Contractor Inc. (“Glass Contractor”) were registered. Michael Levy is an officer and director of the Numbered Respondent. The Numbered Respondent was incorporated February 25, 1998. Glass Contractor was incorporated on May 2, 1995. Its officers and directors are Michael Levy and Jordan Kolman.

[15]. The applicant filed a grievance against Mallfronts and the Numbered Respondent by letter dated August 9, 1999. Subsequently a representative of the Painters met with Michael Levy. Michael Levy acknowledged he had been a partner in “Michael Levy Glass Contractor Inc.” and stated he was leaving the business to his brother. Michael Levy advised that all of the responding parties use his address and all have the same fax number. A truck owned by Michael Levy has been seen at construction projects where bargaining unit work is being performed in the name of Michael Levy Glass Contractor Inc. The grievance referral was subsequently amended to add the name Michael Levy Glass Contractor Inc. as a responding party.

[16]. The responding parties have either individually or collectively performed work falling within the scope of the Painters’ Provincial ICI Collective Agreement and have failed to apply the terms of the agreement thereto.

[17]. The facts as set out above are sufficient to satisfy the Board that Mallfronts entered into a voluntary recognition agreement with the Painters as a result of which it became bound to the Painters’ Provincial ICI Collective Agreement. Mallfronts performed work falling within the scope of the Painters’ Provincial ICI Collective Agreement. All of the named responding parties are under the common direction and control of Michael Levy and are engaged in the performance of work falling within the scope of the Painters Provincial ICI Collective Agreement. The responding parties have performed work falling within the scope of the Painters Provincial Collective Agreement and have failed to apply the terms of the agreement thereto.

[18]. The applicant indicates in its referral of grievance as follows:

The Applicant grieves with respect to all projects at which its bargaining unit work has been performed. The projects are within the sole and exclusive knowledge of the Responding Parties. Without limiting the generality of this grievance, the Applicant is aware that the Responding Parties have performed work without employing members of the Applicant at school projects for Zimmcor Construction, and at retail stores, for example at Yorkville and Cumberland and at Queen’s Quay.

The Applicant requests, in its grievance referral and its letter of July 4, 2000, that the Board declare that the Responding Parties have violated the Union Security provisions and all other articles of the collective agreement and order that a hearing be held to determine the extent of the damages owing to the applicant for these violations.

[19]. In order for the Board to declare that the responding parties have violated the union security provisions and all other articles of the collective agreement, the Board must find that the responding parties performed work falling within the scope of the agreement and failed to apply its terms thereto. This requires the Board to find that specific work was in fact performed. In the usual course, the work performed resulting in a violation of the agreement is identified by the applicant by reference to the specific name or location of a project.

[20]. The Board has acknowledged that a union cannot be expected to be aware of work performed by an entity related to the entity bound the collective agreement but not itself (until the Board confirms such by way of Board declaration) bound (see Karl Thier Construction Limited, [1985] OLRB Rep. 887). In such instances, the Board does not require the union to specify what work the related entity has performed. Rather, it will allow the union to summon a witness to testify with respect to the related entity’s activities or issue a Board order for the production of documents.

[21]. The applicant has, however, requested that the Board make a finding of liability and schedule a hearing to determine the question of damages. The Board is unable to make findings of liability except for those projects that have been particularized. The Board will thus do so and remit the determination of damages arising out of such projects, as well as the issue of whether there have been any additional violations and the determination of damages arising therefrom, to hearing.

[22]. In the present case, the applicant has referred to two projects with sufficient particularity that they can be identified. Thus, the Board declares that the responding parties performed work at retail stores located in Yorkville on Cumberland and at Queen’s Quay and violated the terms of the Painters’ Provincial Collective Agreement by failing to apply the terms of the agreement thereto.

[23]. Having regard to the facts as set out above, the Board hereby makes the following orders and declarations:

(a) the Board declares Mallfronts International Inc., 1283205 Ontario Inc. and Michael Levy Glass Contractor Limited to constitute one employer for all purposes of the Labour Relations Act, 1995.

(b) the Board declares that Mallfronts International Inc., 1283205 Ontario Inc. and Michael Levy Glass Contractor Limited are bound to the Painters’ Provincial ICI Collective Agreement.

(c) The Board declares that Mallfronts International Inc., 1283205 Ontario Inc. and Michael Levy Glass Contractor Limited have violated the Painters’ Provincial ICI Collective Agreement by performing work falling within the terms of the Painters’ Provincial ICI Collective Agreement at retail stores located in Yorkville on Cumberland and at Queen’s Quay and failing to apply the terms of the agreement thereto.

[24]. Board File No. 0671-00-G is hereby referred to the Registrar to be listed for one day of hearing for the purpose of determining the damages arising out of the violations of the Painters’ Provincial ICI Collective Agreement identified herein as well as the question of whether there have been any additional violations of the Painters’ Provincial ICI Collective Agreement and the determination of damages arising therefrom.

[25]. The Board notes that the applicant has not filed a copy of the Painter’s Provincial ICI Collective Agreement in this matter on the basis that a copy is on file with the Board’s “Operations Manager”. The Board’s Rules of Procedure require an application under section 133 to include a copy of the collective agreement under which the grievance was made. Thus, the filing of the collective agreement with an “Operations Manager” is not sufficient. The applicant is directed to file a copy of the Painter’s Provincial ICI Collective Agreement with the Board no later than 10 days in advance of the hearing of this matter.

[26]. I am not seized.

“D. L. Gee”

for the Board