0570-00-G, 0571-00-R International Brotherhood of Electrical Workers, Local 105, Applicant v. Trevor Phillips operating as Trevor Phillips Electric/In-Tech Electrical Services Ltd. and 1087325 Ontario Inc. operating as Hamilton Industrial Controls, Responding Parties.
BEFORE: Gail Misra, Vice-Chair.
DECISION OF THE BOARD; October 11, 2000
Board File No. 0570-00-G is a construction industry grievance that has been referred to arbitration pursuant to section 133 of the Labour Relations Act, 1995 (the “Act”). Board File No. 0571-00-R is an application made pursuant to sections 69 and 1(4) of the Act.
Prior to the commencement of a hearing the parties were able to resolve all matters in dispute between them and on October 5, 2000 the parties entered into Minutes of Settlement. Having regard to the Minutes of Settlement, the Board makes the following findings, orders and directions:
The style of cause is amended to reflect the parties’ agreement that the correct name of “Trevor Phillips Electric” is “Trevor Phillips operating as Trevor Phillips Electric”;
The Board finds that Trevor Phillips operating as Trevor Phillips Electric (“TPE”) is a sole proprietorship which is registered and operated by Trevor Phillips; Intech Electrical Services Ltd. (“IES”) is a corporation owned by Trevor Phillips; and, 1087325 Ontario Inc. operating as Hamilton Industrial Controls (“HIC”) is a corporation owned and operated by Trevor Phillips;
Having regard to the agreement of TPE, IES and HIC, the Board finds that these three responding parties are under the common control and direction of Trevor Phillips within the meaning of section 1(4) of the Act;
The Board further finds that TPE, IES and HIC are or have been engaged in electrical construction work such that they are or have been carrying on associated or related activities through more than one corporation or individual within the meaning of section 1(4) of the Act;
The Board therefore exercises its discretion under section 1(4) of the Act to declare that TPE, IES and HIC constitute one employer for the purposes of the Act;
The Board declares that TPE, IES and HIC are bound to the Principal Agreement between the Electrical Trades Bargaining Agency of the Electrical Contractors Association of Ontario and the International Brotherhood of Electrical Workers and the I.B.E.W. Construction Council of Ontario (the “Collective Agreement”) in effect until April 30, 2001, and any renewals thereof;
The Board notes that TPE, IES and HIC have agreed to abide by the terms of the Collective Agreement in its entirety;
The Board finds that TPE, IES and HIC have violated the Collective Agreement, and in particular Articles 1, 2, 4, 7, 8, 9, 10 and 21, Appendix for Local Union 105;
The Board orders TPE, IES and HIC to jointly and severally pay to the applicant the sum of $27,500 by certified cheque on or before October 6, 2000; and, to pay to the applicant a further sum of $54,000 in 36 monthly payments of $1,500 each on the 15th of each month commencing on October 15, 2000 and ending on September 15, 2003;
The Board directs TPE, IES and HIC to provide to the applicant on the 15th of each month, commencing on November 15, 2000 and ending on September 15, 2003, a complete and comprehensive list of construction jobs performed the prior month and a list of the individuals who performed the work on the said construction jobs;
The Board notes that TPE, IES, HIC and Trevor Phillips have agreed and stated that as of the date of signing the Minutes of Settlement, October 5, 2000, Trevor Phillips is in direction and control of TPE, IES, HIC, and Madditor International Inc. (“Madditor”), which buys and sells electrical equipment and is not engaged in electrical construction. Further, these parties have agreed and stated that Trevor Phillips is in direction and control of no other business entity, incorporated or otherwise, as of the date of signing the Minutes of Settlement;
The Board orders that in the event that on or before September 15, 2003, Trevor Phillips begins directing and/or operating a new business entity and/or Madditor commences performing work in the electrical construction field, Trevor Phillips must advise the applicant immediately;
In accordance with the parties’ agreement, the Board orders that TPE, IES and HIC are jointly and severally liable to pay to the applicant $250,000 forthwith in the event that any of the following breaches of the Minutes of Settlement of October 5, 2000 should occur:
(a) TPE, IES or HIC fail to and/or do not comply with paragraph 9 above; or
(b) TPE, IES or HIC fail to and/or do not comply with paragraph 10 above;
(c) Trevor Phillips is, as of October 5, 2000 (the date of the Minutes of Settlement) in direction or control of a business entity, other than those business entities agreed to in paragraph 11, or begins directing and/or operating a business entity, prior to September 15, 2003, without notice to the applicant as agreed to in paragraph 12.
This paragraph shall only be in effect until September 15, 2003.
The Board notes the parties’ agreement that in the event that on or before September 15, 2003 HIC experiences financial difficulty and HIC provides complete documentary evidence of such financial difficulty to the satisfaction of the applicant, in good faith the applicant shall revisit and reconsider the terms of the October 5, 2000 Minutes of Settlement. Those Minutes of Settlement are fully enforceable until such time as they are amended in writing and signed by all parties;
The Board notes the applicant’s agreement that HIC will not be unreasonably denied access to the applicant’s stabilization fund and any other initiatives by the applicant to increase unionized employers’ competitiveness within the construction industry.
“Gail Misra”
for the Board