3284-99-R Masonry Council of Unions Toronto and Vicinity and Bricklayers, Masons Independent Union of Canada, Local 1 and Labourers’ International Union of North America, Local 183, Applicants v. Rulman Masonry Inc. and/or Con-Via Construction Inc. and/or Joral Construction, Responding Parties.
BEFORE: Mary Ellen Cummings, Alternate Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; October 10, 2000
This an application pursuant to sections 69 and 1(4) of the Labour Relations Act, 1995 (the “Act”). The responding parties have not filed responses, nor otherwise expressed an interest in the proceedings.
The Board was concerned that employees affected by this application had not received notice, and so sent notices to employees at their last known address, and directed them to advise the Board and the other parties if they wished to participate in the hearing. No such representations were received within the time limits set by the Board.
In the same decision, the Board invited the applicant to ask the Board to make a determination solely on the information it provided, and without need to proceed to an oral hearing. The applicant made such a request, and the Board has determined that it can make a decision based on the applicant's pleadings and documents. Rule 41 of the Board's Rules of Practice provides:
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.
Although the applicant identified one of the responding parties as Joral Construction Inc., the information the applicant submitted establishes that Joral Construction is a sole proprietorship, not a corporation, and the style of cause is so amended.
Based on the applicant's materials, the Board finds that Rulman Masonry Inc. (Rulman) and Con-Via Construction Inc. (Con-Via) are bound to the collective agreement between the applicant and the Masonry Contractors' Association, effective May 1, 1998 to April 30, 2000. Both Rulman and Con-Via are masonry contractors, owned, directed and managed by Raul Rodrigues out of the same address in Pickering.
On an unknown date, Mr. Rodrigues caused to be created or activated, the sole proprietorship Joral Construction (Joral). Joral's nominal registrant is Jorge Sanches, a former labourer of Rulman, but Mr. Rodrigues has been the active force in Joral. Joral operates as a non-union masonry contractor, out of the same premises as Rulman and Con-Via. Joral has secured work based on Mr. Rodrigues' reputation, contacts and ability to estimate and bid jobs. Mr. Rodrigues has recruited former Rulman employees; used Rulman/Con-Via equipment and variously paid employees supposedly working for Joral on Rulman cheques.
Most significant, Joral is performing the same work, and on at least one occasion, the same job, that was previously being done by Con-Via and Rulman.
The Board is satisfied that the applicant has established that both a legal and factual basis for declaring that Con-Via, Rulman and Joral are one employer, having regard to the provisions of section 1(4) of the Labour Relations Act. Identical activities relating to masonry work in the construction industry are being carried on through the entities of Con-Via, Rulman and Joral under the common control and direction of Mr. Rodrigues. Further, the applicant has established that Joral is performing work that would have previously been performed by Con-Via or Rulman. The applicant has established the mischief that section 1(4) was intended to address; the erosion of bargaining rights through movement of work to non-union Joral Construction.
Having regard to our factual findings the Board declares that as of the date of this application, February 3, 2000, Rulman Masonry Inc., Con-Via Construction Inc. and Joral Construction are a single employer, within the meaning of section 1(4) of the Labour Relations Act.
“Mary Ellen Cummings”
for the Board