0175-00-R International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 721, Applicant v. Four Hundred Structures Inc., T & F Construction Equipment Rental Ltd., Boltonway Forming Inc., Diafonte Construction Ltd., Freeport Concrete Forming, Parkburn Construction Ltd., Rockton Contractors Inc., Two Way Forming Inc., T & F Construction Ltd., Dakota Forming Inc., 1330049 Ontario Inc., 1224428 Ontario Inc. c.o.b. as T.F. Contracting Inc., T.F. Forming Inc., T.F. Construction Ltd., TF Construction Ltd., TF Contracting, TF Contracting Inc., T & F Construction, T.F. Forming Incorporated, 1369941 Ontario Inc., Fantastic Forming Inc., Quantum Forming Ltd. and Bestform Structures Inc., Responding Parties v. Universal Workers Union, Labourers’ International Union of North America Local 183, Intervenor #1 v. International Union of Operating Engineers, Local 793, Intervenor #2 v. United Brotherhood of Carpenters and Joiners of America, Intervenor #3.

2268-99-R Labourers’ International Union of North America, Local 183 and The Formwork Council of Ontario, Applicants v. Four Hundred Structures Inc., T & F Construction Equipment Rental Ltd., Boltonway Forming Inc., Diafonte Construction Ltd., Freeport Concrete Forming, Parkburn Construction Ltd., Rockton Contractors Inc., Two Way Forming Inc., T & F Construction Ltd., Dakota Forming Inc., 1330049 Ontario Inc., 1224428 Ontario Inc. c.o.b. as T.F. Contracting Inc., T.F. Forming Inc., T.F. Construction Ltd., TF Construction Ltd., TF Contracting, TF Contracting Inc., T & F Construction, T.F. Forming Incorporated, 1369941 Ontario Inc., Fantastic Forming Inc., Quantum Forming Ltd. and Bestform Structures Inc., Responding Parties v. United Brotherhood of Carpenters and Joiners of America, Intervenor.

2490-99-R International Union of Operating Engineers, Local 793 and The Formwork Council of Ontario, Applicants v. Four Hundred Structures Inc., T & F Construction Equipment Rental Ltd., Boltonway Forming Inc., Diafonte Construction Ltd., Freeport Concrete Forming, Parkburn Construction Ltd., Rockton Contractors Inc., Two Way Forming Inc., T & F Construction Ltd., Dakota Forming Inc., 1330049 Ontario Inc., 1224428 Ontario Inc. c.o.b. as T.F. Contracting Inc., T.F. Forming Inc., T.F. Construction Ltd., TF Construction Ltd., TF Contracting, TF Contracting Inc., T & F Construction, T.F. Forming Incorporated, 1369941 Ontario Inc., Fantastic Forming Inc., Quantum Forming Ltd. and Bestform Structures Inc., Responding Parties v. United Brotherhood of Carpenters and Joiners of America, Intervenor.

1093-00-G The Formwork Council of Ontario, Applicant v. Four Hundred Structures Inc., 1224428 Ontario Inc. c.o.b. as T.F. Contracting Inc., T & F Construction Ltd., T & F Construction Equipment Rental Ltd., T.F. Forming Inc., T.F. Construction Ltd., Boltonway Forming Inc., Diafonte Construction Ltd., Freeport Concrete Forming, Parkburn Construction Ltd., Rockton Contractors Inc., Two Way Forming Inc., TF Construction Ltd., TF Contracting, TF Contracting Inc., T & F Construction, T.F. Forming Incorporated, Dakota Forming Inc., 1330049 Ontario Inc., 1369941 Ontario Inc., Fantastic Forming Inc., Quantum Forming Ltd. and Bestform Structures Inc., Responding Parties v. United Brotherhood of Carpenters and Joiners of America, Intervenor.

1956-99-G Labourers’ International Union of North America, Local 183, Applicant v. T.F. Construction Ltd., 1330049 Ontario Inc., 1369941 Ontario Inc., Fantastic Forming Inc., Quantum Forming Ltd. and Bestform Structures Inc., Responding Parties v. United Brotherhood of Carpenters and Joiners of America, Intervenor #1 v. Central Ontario Regional Council of Carpenters, Drywall and Allied Workers, Intervenor #2.

2489-99-G International Union of Operating Engineers, Local 793, Applicant v. T & F Construction Equipment Rental Ltd. and 1330049 Ontario Inc., 1369941 Ontario Inc., Fantastic Forming Inc., Quantum Forming Ltd. and Bestform Structures Inc. Responding Parties v. United Brotherhood of Carpenters and Joiners of America, Intervenor.

2267-99-U Labourers’ International Union of North America, Local 183 and The Formwork Council of Ontario, Applicants v. T.F. Construction Ltd., Boltonway Forming Inc., Diafonte Construction Ltd., Freeport Concrete Forming, Parkburn Construction Ltd., Rockton Contractors Inc., Two Way Forming, TF Construction Ltd., TF Contracting, TF Contracting Inc., T & F Construction, T.F. Forming Incorporated, Dakota Forming Inc., 1330049 Ontario Inc., Four Hundred Structures Inc., 1224428 Ontario Inc. c.o.b. as T.F. Contracting Inc., T & F Construction Ltd., T.F. Forming Inc., Tony Fontana, Tony Della Libera, Frank Azvedo and United Brotherhood of Carpenters and Joiners of America, Walter Tracogna, 1369941 Ontario Inc., Fantastic Forming Inc., Quantum Forming Ltd. and Bestform Structures Inc., Responding Parties.

2491-99-U International Union of Operating Engineers, Local 793 and The Formwork Council of Ontario, Applicants v. T.F. Construction Ltd., Boltonway Forming Inc., Diafonte Construction Ltd., Freeport Concrete Forming, Parkburn Construction Ltd., Rockton Contractors Inc., Two Way Forming, TF Construction Ltd., TF Contracting, TF Contracting Inc., T & F Construction, T.F. Forming Incorporated, Dakota Forming Inc., 1330049 Ontario Inc., Four Hundred Structures Inc., 1224428 Ontario Inc. c.o.b. as T.F. Contracting Inc., T & F Construction Ltd., T.F. Forming Inc., Tony Fontana, Tony Della Libera, Frank Azvedo, United Brotherhood of Carpenters and Joiners of America and Walter Tracogna, 1369941 Ontario Inc., Fantastic Forming Inc., Quantum Forming Ltd. and Bestform Structures Inc. Responding Parties.

2673-99-U United Brotherhood of Carpenters and Joiners of America, Applicant v. Labourers’ International Union of North America, Local 183, International Union of Operating Engineers, Local 793, Victor Ferreira, Peter Dimitruk, Luis Torres and Al Bremner and 1330049 Ontario Inc., 1369941 Ontario Inc., Fantastic Forming Inc., Quantum Forming Ltd. and Bestform Structures Inc. Responding Parties.

BEFORE: Inge M. Stamp, Vice-Chair.

APPEARANCES: Robert Gibson and Tony Almeida for International Association of Bridge, Structural Ornamental and Reinforcing Iron Workers, Local 721; N. L. Jesin and W. Tracogna for United Brotherhood of Carpenters and Joiners of America; A. Minsky, Mark Lewis, Rocco Lotito, Nick Keresztes and Ken Lew for Labourers’ International Union of North America, Local 183, International Union of Operating Engineers, Local 793 and Ontario Formwork Association; Michael Horan, Blair McCreadie for all of the named corporate entities and their named individual responding parties; Tony Fontana for the Fontana Family companies; Tony Della Libera for the Della Libera Family companies and Frank Azvedo for Four Hundred Structures Inc.

DECISION OF THE BOARD; July 26, 2000

1. A pre-hearing conference was held in these matters on Monday July 17, 2000.

2. Michael G. Horan attended on behalf of all of the named corporate entities and its named individual responding parties. Alan M. Minsky attended on behalf of the Formwork Council of Ontario, Labourers’ Local 183 and Operating Engineers Local 793 and their named individual responding parties. Robert Gibson attended on behalf of Ironworkers Local 721. Norman L. Jesin attended on behalf of the United Brotherhood of Carpenters and Joiners of America and Walter Tracogna.

SUMMARY OF THE APPLICATIONS

3. For ease of reference the parties will be referred to as follows. The International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 721 will be referred to as “Ironworkers” or “Local 721”; the Labourers’ International Union of North America, Local 183 as “Labourers’ “ or “Local 183”; International Union of Operating Engineers, Local 793 as “Operating Engineers” or “Local 793”; the Formwork Council of Ontario as “Formwork Council”; the United Brotherhood of Carpenters and Joiners of America as “Carpenters”; the Central Regional Council of Carpenters, Drywall and Allied Workers as “Carpenters Allied Workers”. The corporate entities will be referred to as the “Fontana Companies”, the “Della Libra Companies” and Four Hundred Structures Inc. as “Four Hundred”.

4. There are a number of applications involving the above parties. The applications put on for the pre-hearing conference can be described as three groupings of applications.

Section 133 grievances

5. There are three section 133 grievances brought by the Labourers Local 183, Operating Engineers Local 793 and the Formwork Council with the Carpenters intervening in all three applications. The Carpenters Allied Workers intervened in Board File No. 1956-99-G.

Section 69/1(4) applications

6. There are three related employer/sale of business applications. Two were filed in November 1999 by the Labourers and Operating Engineers. The Ironworkers filed their application in April of 2000. All of them name a number of entities involving the various corporate responding parties.

7. The Operating Engineers and the Labourers intervened in the Ironworkers 69/1(4) application. The Labourers intervened to the extent that it might affect the “peace treaty” between the Ironworkers and the Labourers with respect to formwork in the residential and ICI sectors.

8. The Carpenters intervened in the three section 69/1(4) applications.

Section 96 applications – Unfair Labour Practice complaints

9. The Labourers , the Operating Engineers and the Carpenters filed unfair labour practice complaints against the corporate entities, some of the other unions and certain named individuals who are representatives of the corporate entities and the unions.

10. The Labourers and the Operating Engineers filed their applications in November 1999. The applicants allege the corporate responding parties and their principals as well as the Carpenters and Walter Tracogna engaged in a scheme to avoid the applicants’ bargaining rights with respect to formwork. The applicants allege that Four Hundred was incorporated for the purpose of defeating their bargaining rights and that the Carpenters obtained bargaining rights with respect to the responding party Four Hundred by utilizing employer support and/or with disregard to the free wishes of the employees. The Carpenters were certified on October 14, 1999 in Board File 1738-99-R as bargaining agent for all carpenters, ironworkers and operating engineers of Four Hundred Structures Inc. in Board Area 18, excluding ICI.

11. The Carpenters filed a section 96 complaint against Local 183 and Local 793 and certain named individual representatives of those locals. The complaint arises out of certain events that took place at the job site in Barrie on December 1, 1999. The application alleges picketing and intimidation by representatives of Local 183 and Local 793 to prevent employees of Four Hundred and others to work at the job site, contrary to the terms of the applicable collective agreement between the applicant and Four Hundred.

12. The parties made their submissions with respect to the order of proceeding in light of the various applications and the concomitant mixed onus. Some matters were agreed to and I will first deal with those.

Section 133 referrals of grievance

13. The parties agreed to adjourn the following three grievances pending the determinations in the section 69/1(4) applications. These are Board File Nos. 1093-00-G filed by the Formwork Council of Ontario, 1956-99-G filed by Labourers Local 183 and 2489-99-G filed by Operating Engineers Local 793.

14. Board File No. 1956-99-G had been adjourned on agreement of the parties to that proceeding. The Board’s decision of November 15, 1999 adjourned this referral until the section 69/1(4) determination and the determination of a reconsideration request in Board File No. 1738-99-R, the Four Hundred and Carpenters certification.

15. The above construction industry grievance referrals are hereby adjourned pending the outcome of the relevant section 69/1(4) applications. The hearing scheduled for Friday, July 21, 2000 in Board File 1093-00-G was therefore cancelled.

Amendments to the various named parties in the title of the above named proceedings

16. Re: 1369941 Ontario Inc.

It was agreed to add this entity as a responding party in all relevant proceedings. It was further agreed that this is one of the companies that falls within the “Fontana family companies”. The title of the proceedings are amended to add this numbered company.

The parties further agreed that counsel for the Fontana companies will have the opportunity to file an amended response with respect to this company.

17. Re: The Formwork Council of Ontario.

The parties agreed and the Board directs that the title of the proceedings in the following files be amended to add “The Formwork Council of Ontario” as a co-applicant and a co-responding party. The Formwork Council of Ontario is added as an applicant to the following Board Files: 2268-99-R, 2490-99-R, 2267-99-U and 2491-99-U.

Names of the various corporate responding parties

18. The parties agreed to proceed on the following basis: The exact names and status of each entity is to be determined during the course of the hearing. For the purpose of these proceedings the corporate responding parties are identified as set out in the application and response in Board File No. 1093-00-G (grievance filed by the Formwork Council on July 7, 2000), the three additional entities identified at the pre-hearing conference by counsel for Ironworkers Local 721, and the additional numbered company identified in paragraph 16 above.

19. Responding parties listed in the response (Form A-87) in Board File

1093-00-G:

Four Hundred Structures Inc.

T&F Construction Equipment Rental Ltd.

Boltonway Forming Inc.

Diafonte Construction Ltd.

Freeport Concrete Forming

Parkburn Construction Ltd.

Rockton Contractors Inc.

Two Way Forming Inc.

T&F Construction Ltd.

Dakota Forming Inc.

1330049 Ontario Inc.

1224428 Ontario Inc., c.o.b. as T.F. Contracting Inc.

T.F. Forming Inc.

T.F. Construction Ltd.

TF Construction Ltd.

TF Contracting

TF Contracting Inc.

T&F Construction

T.F. Forming Incorporated

20. Additional responding numbered company referred to in paragraph 16 above:

1369941 Ontario Inc.

21. The three corporate responding parties included in the Ironworkers Local 721 application in Board File 0175-00-R and not listed above:

Fantastic Forming Inc.

Quantum Forming Ltd.

Bestform Structures Inc.

22. Counsel for the responding parties in the section 133 grievances, the section 69/1(4) and section 96 applications indicated that responses have been filed with respect to all the named entities.

23. Counsel for the responding parties agreed that the above named entities fall into three categories.

Fontana Family companies

Della Libera Family companies

Azvedo company – Four Hundred Structures Inc.

24. Schedule “A” of the response (Form A-25) filed in Board File No.

0175-00-R identifies a number of companies and describes them as being The Fontana Family of Companies.

25. The correct address for the Fontana Family companies is:

5 Edvac Drive

Unit No. 7

Brampton, Ontario L6S 5P3

26. The correct address for the Della Libera Family companies is:

211 Avdell Avenue **

Woodbridge, Ontario L4H 1H4

** This is a change of address however the phone and fax

numbers are the same.

27. The correct address for the Azvedo company is:

Four Hundred Structures Inc.

81 Toronto Street

Barrie, Ontario L4N 1V1

28. The parties disagree as to who should proceed first. Following is a summary of the positions with respect to the order of proceeding in these matters.

Submissions on behalf of the corporate responding parties:

29. Counsel for the corporate responding parties and their principals takes the position that the applicant unions should proceed first with their allegations with respect to the unfair labour practice allegations by the Labourers Local 183 and the Operating Engineers Local 793. Counsel for the Labourers, Operating Engineers and the Formwork Council should go first followed by counsel for the Ironworkers and counsel for the Carpenters.

30. All of the related applications should be heard together (excluding the s. 133 referrals). This would include;

The three section 69/l(4) applications

The three unfair labour practice complaints

The certification application in Board File No. 1738-99-R (certifying the Carpenters and Four Hundred)

The Cease & Desist application in Board File No. 2681-99-U brought by Four

Hundred against Local 183 et al.

31. The illegal strike in Board File No. 2681-99-U was adjourned sine die after minutes of settlement were signed. A claim for damages is still outstanding in that application.

32. Counsel submits these cases emanate from the certification application involving Four Hundred and the Carpenters. It is that certificate that is at issue. There are allegations of improper conduct with respect to the certificate obtained in Board File No. 1738-99-R. The parties who are alleging the improper conduct with respect to the certification application and filed reconsideration requests after the certificate was issued, should go first and call their evidence.

33. Counsel submits everything should be in the basket. Locals 793 and 183 should lead their evidence based on their requests for reconsideration in Board File No.1738-99-R, based on their bargaining rights.

34. Counsel requests that the cease and desist application (illegal strike) naming Local 183, Victor Ferreira and Louis Torres in Board File No. 2681-99-U be added. The damage claim is still outstanding and should be heard together with the unfair labour practice applications.

Submissions on behalf of Labourers Local 183, Operating Engineers Local 793 and the Formwork Council of Ontario:

35. Counsel for the above parties submits the most expeditious way to proceed is for the corporate responding parties to proceed first and call their evidence. The three section 69/1(4) applications should be heard together. They rely on similar facts and the same relief is requested. There is a reverse onus in these applications. Counsel takes the position that the two unfair labour practice complaints filed by Local 183 and by Local 793 should be heard together with the three section 69/1(4) applications.

36. The allegations are that the corporate responding parties and their principals set up Four Hundred to circumvent the Formwork Council collective agreement. Part of the scheme, it is alleged, involves the carpenters organizing Four Hundred.

37. The cease and desist application and the outstanding damages should be dealt with together with the Carpenters’ unfair labour practice. They rely on a collective agreement between the Carpenters and Four Hundred. These issues are unrelated to the section 69/1(4) applications and arose out of circumstances that took place on December 1^st, 1999. These events occurred after the filing of the related employer applications and the two unfair labour practice complaints by Locals 183 and 793.

38. These two matters should be stood down together with the section 133 referrals. They are factually and legally distinguishable and are subject to the determinations in the section 69/1(4) applications.

39. The original certification in Board File No. 1738-99-R (Carpenters and Four Hundred) should remain open.

40. Counsel submits with respect to the scope of evidence going toward the Board’s discretion in the related employer applications (i.e. matters that occurred after the application date), the corporate responding parties can make their submission to the panel hearing these matters. The panel hearing these matters can determine what evidence is relevant and/or admissible when considering its discretion.

41. There is a mixed onus and there is a legal onus under section 1(5). All of these applications arise out of the scheme to start up Four Hundred.

42. The corporate responding parties should proceed first with all of their evidence, followed by the Carpenters, followed by Local 183, Local 793 and the Formwork Council, with Local 721 going last.

Submissions on behalf of Ironworkers Local 721:

43. Counsel for Local 721 agrees with and adopts the submissions of Counsel for Locals 183, 793 and the Formwork Council. The related employer applications should go together with the two unfair labour practice complaints with the corporate parties proceeding first.

44. The Carpenters’ unfair labour practice complaint relates to a different set of circumstances and does not relate to the section 69/1(4) applications. The damage claim in the cease and desist application should be dealt with separately. There is no connection between these cases and the applications before the Board.

45. The onus is clear. The employers should proceed first. The two unfair labour practices should be joined with the related employer applications.

Submissions on behalf of the Carpenters Union and Walter Tracogna:

46. The Carpenters applied for and received a certificate for Four Hundred. These parties argue that the Board needs to hear all of the evidence as it goes to the Board’s exercise of its discretion in the section 1(4) applications. It is the applicants in the section 1(4) and the two unfair labour practice complaints who assert some sort of corporate machinations designed to interfere with their bargaining rights.

47. The Carpenters claim they are not subject to any reverse onus. It is therefore unfair to make the Carpenters lead their evidence putting them in a position of having to call evidence to rebut allegations that the other applicants have the legal onus of proving against the Carpenters.

48. Further, it is unfair to make the employer go first and then have the Carpenters lead their evidence. Counsel agrees with and adopts the approach suggested by Counsel for the corporate responding parties to deal with all of these matters together and to look at whether the certification was improper. It is fair to all of the parties to proceed in the order suggested by Counsel for the employers.

DECISION

49. Regardless of who proceeds first the legal burden with respect to the different issues before the Board does not change. What the Board is concerned with is a procedural matter. In these circumstances what is the best way to proceed given the number of applications and issues involved in these matters? There is the reverse onus under section 1(5) and 69(13) of the Act and the onus with respect to the section 96 complaints.

50. Counsel for the corporate responding parties asserts that all of these cases emanate from the certification application in Board File No. 1738-99-R and the alleged impropriety involved in obtaining a certificate for Four Hundred Structures. The events that led to the formation of Four Hundred and any alleged scheme to defeat the Formwork collective agreement bargaining rights took place before the Carpenters’ certificate for Four Hundred was issued.

51. Having considered the submissions of the parties and what is fair and expeditious in these circumstances the Board directs these matters proceed as follows:

Board File 2673-99-U, Carpenters section 96 application

52. This matter is adjourned and is to be heard together with the damages claim in Board File No. 2681-99-U. The events that gave rise to this application occurred December 1^st, 1999 and relate to the cease and desist application referred to below. These matters occurred after the section 69/1(4) applications and the other two unfair labour practice applications were filed.

Board File No. 2681-99-U, Four Hundred Structures’ Cease and Desist application

53. The remaining issue dealing with damages is a separate issue. The Board notes this matter was already adjourned sine die, on agreement of the parties to that proceeding, for the usual one year period starting from December 9, 1999.

Board File No. 1738-99-R, Four Hundred Structures and Carpenters, certification application

54. The Board’s last decision in this matter, dated April 10, 2000 in paragraph 15 states:

There are numerous allegations filed by various parties in a number of related applications. When all of these matters have been adjudicated and the applicants are successful, there may be remedies directed by the Board that may affect the bargaining rights granted in this application.

55. That decision leaves it open to the panel deciding these matters to take whatever remedial action it considers appropriate, if any, with respect to the Carpenters’ certificate issued on October 14, 1999, should the applicants be successful.

Three section 69/1(4) applications and the remaining two section 96 applications.

56. In the circumstances the most expeditious way to proceed is to hear these five applications together with the corporate responding parties proceeding first. At the core of these applications is an assertion by the applicants that these corporate entities conspired to form a new entity, called Four Hundred Structures Inc., in order to avoid or circumvent the bargaining rights held by the applicants. It is further alleged that the Carpenters Union was involved in this alleged scheme.

57. The corporate responding parties will proceed first calling all of their evidence. The Carpenters, who are intervenors in the related employer applications and named responding parties together with Walter Tracogna in the unfair labour practice applications, will proceed to call their evidence next. Local 183, Local 793 and the Formwork Council will call their evidence next. Local 721 will call its evidence last.

58. There may well be an issue with respect to the proper scope of reply evidence as it relates to the Carpenters and Walter Tracogna. Counsel for the Carpenters union and its representative may wish to make submissions with respect to the proper scope of reply evidence to the panel hearing these matters.

59. Continuation dates were set in consultation with, and with the agreement of, the parties. These matters will be scheduled for hearing on:

Thursday and Friday, December 21 and 22, 2000;

Wednesday, Thursday and Friday, January 10, 11, and 12, 2001;

Tuesday and Wednesday, January 16 and 17, 2001;

Tuesday and Wednesday, February 6 and 7, 2001;

Tuesday, Wednesday and Thursday, February 20, 21, and 22, 2001;

commencing at 9:30 a.m. in the "Board Room", 2nd Floor, 505 University Avenue, Toronto, Ontario.

“Inge M. Stamp”

for the Board