International Brotherhood of Electrical Workers, Local 353 v. Tesla Electric Ltd., 2000 CanLII 1620

Ontario Labour Relations Board

1120-99-G International Brotherhood of Electrical Workers, Local 353, Applicant v. Tesla Electric Ltd., A. Power Electric & Fire Systems Inc., 1251031 Ontario Ltd. o/a Tesla Contracting, Responding Parties.

BEFORE: Harry Freedman, Vice‑Chair, and Board Members G. Pickell and A. Haward.

DECISION OF THE BOARD; January 24, 2000

1This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995, S.O. 1995, c.1 as amended ("the Act"). Pursuant to the parties’ agreement, the title of proceedings is amended to add “1251031 Ontario Ltd. o/a Tesla Contracting”.

2Prior to the hearing in this matter the parties entered into the following Memorandum of Agreement:

ONTARIO LABOUR RELATIONS BOARD

OLRB File 1120-99-G

International Brotherhood of Electrical Workers, Local 353,

Applicant,

‑ and ‑

A. Power Electric & Fire Systems Inc., Tesla Electric Ltd.,

Responding Parties.

MINUTES OF SETTLEMENT AND CONSENT ORDER

Whereas this grievance is scheduled for hearing on Feb. 2, 2000;

And whereas the parties have met with a Labour Relations Officer and have resolved the issues in dispute;

Therefore the parties agree as follows and request that the Board issue the declarations and orders contained herein.:

1. The principal of the responding parties, Mr. Ned Velagic (“Velagic”) has advised the Applicant that the operating name for one of the responding parties is “1251031 Ontario Ltd. o/a Tesla Contracting”.

2. The parties agree to amend the name of the responding parties to include nunc pro tunc 1251031 Ontario Ltd. o/a Tesla Contracting and agree that that company is one employer with the other responding parties for purposes of labour relations.

3. Velagic hereby advises the applicant and the Board that there are no employees employed by 1251031 Ontario Ltd. o/a Tesla Contracting, aside from himself. The employees are all employed in the name A. Power Electric & Fire Systems Inc. and paid by that corporation, regardless which of the responding parties has obtained the contract for the work.

4. The responding parties admit they have violated the union security provisions of the Principal Agreement and that the total damages owing, as agreed with the applicant, are $10,000.00.

5. The responding parties shall begin applying the terms and conditions of the applicant: collective agreements effective February 1, 2000.

6. The applicant agree to admit employee Antonio Varela as an apprentice. Mr. Varela shall make application to become a member and shall make application to the Joint Apprenticeship Committee by on or before February 1, 2000.

7. Velagic admits that he works on the tools as an owner-operator. The responding parties shall begin remitting the owner/operator fees required by the Principal Agreement (currently $389.00/month) effective February 1, 2000 with the first payment due March 20, 2000.

8. Velagic shall meet with the applicant at a mutually convenient time and execute voluntary recognition agreements on behalf of the responding parties and shall discuss matters of mutual interest, such as the market recovery and stabilization funds.

9. The parties request that the Board do the following:

(i) amend the title of the proceedings to include nunc pro tunc the responding party 1251031 Ontario ltd. o/a Tesla Contracting;

(ii) declare that the responding parties are bound to the Principal Agreement between the Electrical Trade Bargaining Agency of the Electrical contractors Association of Ontario and the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario effective until April 30, 2001, and to the Residential Low-Rise Agreement between the applicant and the Electrical Contractors Association of Toronto, effective until May 31, 2002;

(iii) declare that the responding parties have violated the Union Security provisions, Sections 5 and 7 of the Principal Agreement;

(iv) order that the responding parties pay damages of $10,000.00 to the applicant for these violations according to the following schedule:

(a) $2,000.00 by on or before Feb. 3, 2000;

(b) $1,500.00 by on or before March 3, 2000;

(c) $1,500.00 by on or before April 3, 2000; and

order that, should the responding parties fail to pay any of the above payments, then the entire amount owing on the date of default becomes immediately due and payable to the applicant and subject to immediate collection by the applicant; and

(d) $5,000.00 to be paid only if the applicant grieves before January 6, 2003, against the responding parties (or any of them), or files a fresh proceeding under sections 1(4) and/or 69 naming any of the responding parties and another business name operating outside of the collective agreements, where the Board finds a breach of the Union Security provisions in which case the $5,000.00 damages becomes payable in addition to any damages found to be owing to the applicant as a result of those future proceedings.

10. The applicant accepts the terms and conditions contained herein in full and final settlement of all violations of the collective agreements by the responding parties occurring prior to the date hereof.

Dated at Toronto this 6th day of Jan. 2000.

“Michael J. Oram” "Ned Velagic"

For the Applicant For the Responding Parties

3The Board, differently constituted, by decision in this matter dated November 22, 1999, made the following declarations:

1. declares that Tesla Electric Co. Ltd., Tesla Electric Construction Limited and A Power Electric & Fire Systems Inc. are associated or related businesses or activities under common direction and control within the meaning of section 1(4) of the Act and constitute a single employer for the purposes of the Act;

2. declares that Tesla Electric Co. Ltd., Tesla Electric Construction Limited and A Power Electric & Fire Systems Inc. are bound to the principal agreement between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario and the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario effective until April 30, 2001 and to the Residential Lowrise Agreement between the International Brotherhood of Electrical Workers Local 353 and the Electrical Contractors Association of Toronto, effective until May 31, 2002;

3. declares that Tesla Electric Co. Ltd., Tesla Electric Construction Limited and A Power Electric & Fire Systems Inc. are equally liable for any amounts which are found to be owing to the applicant in Board File No. 1120-99-G.

By decision dated December 20, the Board, again differently constituted, directed the principal of the responding parties herein to meet with the applicant. It appears that the Minutes of Settlement set out above resulted from that meeting.

4Therefore, having regard to the Board’s decision in this matter dated November 22, 1999 and to the Minutes of Settlement and Consent Order, dated January 6, 2000, between the parties, filed, the Board:

(a) declares that 1251032 Ontario Limited o/a Tesla Contracting, Tesla Electric Ltd., and A. Power Electric & Fire Systems Inc. (collectively “Tesla”) are one employer for purposes of the Act and therefore are bound to the Principal Agreement between the Electrical trade Bargaining Agency of the Electrical Contractors Association of Ontario and the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario effective until April 30, 2001 and to the Residential Low-Rise Agreement between the applicant and the Electrical Contractors Association of Toronto, effective until May 31, 2002 (the “Collective Agreements”);

(b) declares that Tesla violated the Union Security provisions, Sections 5 and 7 of the Collective Agreements;

(c) directs Tesla to pay to the applicant the sum of $10,000.00 in the following installments:

$2,500.00 on or before February 2, 2000;

$1,500.00 on or before March 3, 2000;

$1,500.00 on or before April 3, 2000; and

if there is a failure to pay any of the above payments, the entire unpaid balance remaining on the date of default shall be immediately due and payable to the applicant; and

(d) directs Tesla to pay the remaining balance of $5,000.00 to the applicant on or before January 6, 2003, only if the applicant obtains a declaration through a grievance and arbitration proceeding under a collective agreement or through a proceeding before the Ontario Labour Relations Board that Tesla or any other entity found to be a successor employer of Tesla or a single employer with Tesla violated the Union Security provisions of the collective agreements.

“Harry Freedman”

for the Board