United Brotherhood of Carpenters and Joiners of America, Local 2486 v. MacIsaac Mining and Tunnelling Company and MacRanald Enterprises Inc., 2000 CanLII 7104

Ontario Labour Relations Board

0833-99-R United Brotherhood of Carpenters and Joiners of America, Local 2486, Applicant v. MacIsaac Mining and Tunnelling Company and MacRanald Enterprises Inc., Responding Parties.

0838-99-G United Brotherhood of Carpenters and Joiners of America, Local 2486, Applicant v. MacIsaac Mining and Tunnelling Company and MacRanald Enterprises Inc., Responding Parties.

BEFORE: Caroline Rowan, Vice-Chair, and Board Members G. Pickell and G. McMenemy.

DECISION OF THE BOARD; December 21, 2000

1. This is an application for reconsideration of the Board’s decision dated August 3, 2000 in these matters (the “Decision”) by MacIsaac Mining and Tunneling Company (“MacIsaac”) and MacRanald Enterprises Inc. (“MacRanald”) (collectively referred to as the “Employer”).

2. In support of its request, the Employer raises three separate grounds:

i) the effect of the non-construction employer amendments to the Labour Relations Act, 1995 (the Act);

ii) exercise of the Board’s discretion;

iii) the effect of the Gaming Control Act.

In its Decision, the Board considered the first two grounds raised involving the impact of the non-construction employer amendments and whether the Board should exercise its discretion under subsection 1(4) of the Labour Relations Act, 1995 (the “Act”). The Board did not, however, consider the impact of the provisions of the Gaming Control Act, since the Employer raised this issue for the first time in this application for reconsideration.

3. In response, the United Brotherhood of Carpenters and Joiners of America, Local 2486 (the “Union”) seeks to have the application dismissed on the basis that it does not contain any new evidence which could not with due diligence have been called at the hearing. The Union also submits that the application also does not make any representations or objections which have not already been considered by the Board and/or which the Employer could not have raised during the hearing.

4. Pursuant to subsection 114(1) of the Act, the Board has a broad discretion to reconsider any decision or order made by it and to vary or revoke any such decision or order. The Board has adopted a number of principles by which it will be guided in determining whether or not to exercise its discretion to reconsider a decision. Although the Board is not restricted by these principles, they do generally further the interests of finality in Board decision-making. In Cineplex Odeon Corporation, [1996] OLRB Rep. Nov./Dec. 922, the Board outlined these principles as follows at page 924:

An application for reconsideration is not an opportunity for a party dissatisfied with the result of the Board's decision to reargue the case it had made previously. The principles upon which the Board acts in dealing with applications for reconsideration are well known. A succinct statement of those principles is found in Cineplex Odeon Corporation, [1996] OLRB Rep. Nov./Dec. 922 where the Board wrote at page 924:

As to the general principles applicable on applications for reconsideration, there was little dispute. They are distilled in the following two quotations. First from Canadian Union Of General Employees, [1975] OLRB Rep. April 320:

11. Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously. (International Nickel Co. of Canada Ltd., [1963] OLRB Rep. 234, 64 C.L.L.C. paragraph 15.493 (Ont. H.C.); Detroit River Construction Case (1962) C.L.L.C. paragraph 16,260). Both legs of this principle depend upon the applicant having been diligent and therefore having had no opportunity to draw the Board's attention to the objection of its concern. The applicant in the case at hand and his lawyer were not diligent in that they were given notice of the hearing date in the matter by the Board. Accordingly they would not appear to come with the ambit of the principle.

Secondly, from John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096 after quoting a portion of the above passage from Canadian Union Of General Employees:

These are general standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decisions, but also to allow parties who may be affected by the Board's decisions some degree of certainty of what to expect from the Board. While it is important for the purpose of certainty that these standards generally be adhered to, it is equally important that they not be followed inflexibly.

Although neither of the two conditions precedent stated in the Canadian Union of General Employees case, supra, are satisfied here, the request does raise significant and important issues of Board policy and for this reason the Board will review its decision to determine if it should vary or revoke the decision.

See also K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, which mentions the motives for the request and any resulting prejudice as factors to be considered.

Reconsideration is not available for the reargument of cases or more creative theories thought of later, in light of new information or jurisprudence; this has been affirmed repeatedly in the Board's jurisprudence. See for instance, Silverwood Diaries, [1977] OLRB Rep. June 392.

5. In the present case, none of the grounds for reconsideration raised by the Employer involve new evidence or representations that the Employer had no previous opportunity to raise. The Board is however satisfied, like the Board in John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096, that the request for reconsideration in this case does raise important issues of Board policy and practice. For this reason, the Board is prepared to review its Decision to determine whether it should be varied or revoked.

(i) Non-construction Employer Amendments

6. In its request for reconsideration, the Employer submits that the Board erred when it found “that amendments to the Labour Relations Act, 1995 (the “Act”) prohibiting the certification of a non-construction employer under the construction provisions of the Act did not prevent it from making a related employer declaration under s.1(4) of the Act.” It argues that the Board’s Decision in this regard subverts the intention of the Legislature which, it says, “…was to prevent non-construction employers from being certified under the construction provisions of the Act.” [emphasis added]

7. With respect to this submission, the Board firstly observes that it did not make a finding that the non-construction employer amendments prohibit the certification of a non-construction employer under the construction provisions of the Act as suggested by the Employer at paragraph 4 of its submissions dated August 31, 2000. This is because that issue was not before the Board in this matter, rather this case involved a related employer application, not a certification application. Instead, the Board simply determined in its Decision that the non-construction employer amendments do not preclude a finding that two or more entities are one employer within the meaning of subsection 1(4) of the Act where one entity meets the definition of “non-construction employer” and the other does not.

8. In addition, the question of whether the non-construction employer amendments of the Act preclude a construction trade union from being certified under the construction provisions of the Act in respect of a unit of employees of a “non-construction employer” is an entirely separate issue. As the purposes of the certification provisions of the Act are different from its related employer provisions, it is not surprising that the legislature distinguishes between a trade union’s right to certification and its right to obtain a single employer declaration.

9. Generally speaking, the related employer provisions of the Act allow the Board to pierce the corporate veil to ensure that legal form does not undermine established bargaining rights (See Brant Erecting and Hoisting [1980] OLRB Rep. July 945, cited at paragraph 19 of the Decision). Even if the amendments referred to reflect a legislative intention to preclude a construction trade union from being certified to represent employees of a non-construction employer under the construction industry provisions of the Act, this has little bearing on whether or not a single employer declaration under section 1(4) can, or should be made.

10. As noted in the Decision, the amendments to the Act do not explicitly prohibit a finding that two entities are one employer for the purposes of subsection 1(4) of the Act where one is a “non-construction employer” and the other is not. In this respect, the Board also observes that the Employer has been unable to point to any language in the amendments referred to which would support that interpretation. As previously noted, the definition of “employer” and “non-construction employer” contained in section 126 of the Act apply to the Construction Industry provisions of the Act contained in sections 126 to 168 of the Act and therefore do not apply to subsection 1(4). The preamble to section 126 is explicit in this regard: “126. Definitions. - In this section and in sections 127 to 168, …”.

11. The Board is also unable to find that any such prohibition should be implied even assuming without deciding that the amendments now prevent a construction trade union from being certified under the construction industry provisions of the Act to represent employees of a non-construction employer. The amendments do not contemplate that a construction trade union is precluded from holding bargaining rights for employees of a non-construction employer in all circumstances. Instead, the amendments simply allow a “non-construction employer” to make application to the Board for a declaration that a trade union no longer represents the employees of a non-construction employer if certain conditions are met.

12. In Greater Essex District School Board [2000] O.L.R.D. No. 642, the Board set out a two-part test that every applicant must meet before it can be found to be a “non-construction employer” as follows:

In enacting section 127.2, the legislature intended, in our view, to provide for two types of employers: those who formerly carried on business in the construction industry and no longer do so, and those who did so only to the extent of falling within the previous definition of a construction industry employer. Such employers are entitled to come to the Board to assert that their businesses or activities have, since becoming bound to the collective agreement, ceased to be involved in the construction industry at all, or to demonstrate that they meet the new definition of a non-construction employer. The task of the Board is to examine the business of the employer and determine whether it meets the definition of a non-construction industry employer and to answer the question of whether there were any employees employed in the construction industry on the application date. If the answer to both questions is affirmative, then the Board is directed to terminate the collective agreement that is no longer applicable to the employer's business or activities.

The non-construction employer amendments provide a mechanism for a “non-construction employer” to apply to the Board for a declaration terminating the bargaining rights of a construction trade union (whether those bargaining rights were obtained by certification, by successor rights, or as a result of the related employer provisions).

13. There is nothing, however, in the amendments to suggest that the legislature intended to preclude a “construction employer” and a “non-construction employer” from being declared to be one employer under subsection 1(4) of the Act where the preconditions to such a declaration have otherwise been met. As the Board noted in its Decision, if the legislature had intended to prohibit a single employer declaration in these circumstances, it was open to it to say so explicitly.

(ii) Exercise of Board discretion

14. The Employer also seeks reconsideration of the Board’s Decision to exercise its discretion to make a declaration under subsection 1(4) of the Act in the circumstances. Although the Employer does not take issue with the Board’s finding that the three preconditions to a single employer declaration under subsection 1(4) of the Act have been met, the Employer argues that the Board should not have exercised its discretion to make a declaration for several reasons.

15. The Employer’s submissions in this regard are as follows;

16. The Board determined that it should exercise its discretion to make a declaration that MacRanald and MacIsaac were one employer under subsection 1(4) of the Act.

17. The Board appears to have based the exercise of its discretion on the basis that the construction work performed by MacRanald represented an erosion of MacIsaac’s bargaining rights because MacIsaac lost an opportunity for growth in its construction activities.

18. It is submitted that the Board’s findings that MacIsaac lost an opportunity for growth in its construction activities ignores the evidence that was presented at the hearing and creates a completely new and inappropriate definition of erosion.

19. At p. 2-3 of its decision the Board found that MacIsaac’s business was as a mining contractor and that the construction work performed by MacIsaac was incidental to its business.

20. The Board further found at p. 5 of its decision that MacIsaac’s work on the Sudbury Downs project was means utilized by MacIsaac to maintain employment for some of its carpenters.

21. No evidence was presented to the Board to show that MacIsaac had any intention to expand its construction business beyond the incidental work necessary to its mining business. Indeed no evidence was presented to the Board that demonstrated the existence of a construction business at MacIsaac; the evidence demonstrated that MacIsaac operates a contract mining business.

22. Furthermore, the evidence clearly established that MacRanald’s involvement in construction activities was limited to the renovation of Sudbury Downs. No evidence was presented to show that there was any intention to create a construction business or carry on construction activities in the future at MacRanald.

23. There was no evidence before the Board that would indicate the (sic) MacRanald’s and MacIsaac’s involvement was nothing (sic) more than a one time undertaking and that neither Company had any intention of entering into the construction industry, the Board’s finding that MacIsaac lost an opportunity to grow its construction business is at best hypothetical, speculative and unsupported by any of the evidence presented to the Board.

16. The Board will first deal with the factual assertions raised by the Employer. The evidence before the Board was that Mr. MacIsaac owned and operated both of the responding parties, MacIsaac and MacRanald. The evidence was that MacIsaac has engaged in construction activities including work under the Union’s Provincial ICI collective agreement (the “Provincial Agreement”) for many years. Historically, these activities had been limited to construction activities required to complete its mining contracts. In or about 1999, MacIsaac expanded the type of construction activities that it had historically engaged in at a time when work in the mine contracting business was slow and it had a number of construction employees including carpenters without work. MacIsaac therefore bid on and performed construction work at a renovation project at the Sudbury Downs racetrack owned by MacRanald (the “Renovation Project”). At that time, MacRanald was also engaged in construction activities at the Sudbury Downs racetrack as the general contractor of the Renovation Project.

17. The Employer suggests that there is no evidence before the Board that MacIsaac ever intended to expand the type of construction business beyond the incidental work necessary to its mining business. First, evidence of “corporate intention” is not required by section 1(4), either explicitly or pursuant to the Board’s developed jurisprudence. In addition, the Board notes that there was not only evidence before the Board that MacIsaac intended to expand its construction business beyond the construction work incidental to its mining business, there was evidence that it did in fact do so. As previously noted, the evidence before it was that MacIsaac both bid on, and performed, construction work including carpentry work falling under the terms of the Provincial Agreement at the Renovation Project. MacIsaac therefore in effect decided to (and did) expand the type of construction activities in which it had historically engaged.

18. MacIsaac had not only historically performed construction work required by its mining contracts as for example the surface construction required to sink a mining shaft, but it also performed renovation work falling under the terms of the Provincial Agreement at the Renovation Project in 1999. The Board therefore disagrees with the Employer’s assertion that there was no evidence of a “construction business” at MacIsaac. Similarly, MacRanald performed construction work as the general contractor of the Renovation Project. It performed the work by hiring various construction employees directly and by engaging various subcontractors to do the work.

19. Even though the primary activities of MacIsaac and MacRanald may have differed, in so far as each was engaged in construction activities falling under the terms of the Union’s collective agreement and that activity was under common control and direction, then in the area of construction the two entities are to be treated as constituting one employer for the purposes of the Act. (See for example, Elmont Construction Limited [1974] OLRB Rep. June 342 referred to in the Decision at paragraph 28)

20. In the circumstances of the present case, MacIsaac and MacRanald operating under the common control and direction of Mr. MacIsaac were jointly engaged in construction activities at the Renovation Project. They do not operate at arms’ length. Both companies share the same head office as well as various accounting and administrative personnel. In addition, the evidence was that MacIsaac paid an architectural fee for work on the Renovation Project, which should have been issued to the general contractor, MacRanald (not MacIsaac). The architect’s account had, however, been directed to MacIsaac incorrectly apparently because MacIsaac was better known in the industry.

21. Mr. MacIsaac also chose to have MacIsaac provide construction work and equipment on the Renovation Project and to perform the balance of the construction work through MacRanald operating as the general contractor. As a result, a portion of the carpentry work was performed on a non-union basis rather than having additional unionized carpenters referred to MacIsaac through the Union’s hiring hall in order to complete the carpentry work. In these circumstances, the Board found that the Union’s bargaining rights had been eroded.

22. It is well-established in the Board’s jurisprudence that erosion of a trade union’s bargaining rights extends beyond situations in which there has been a direct diversion of work from a union company to a non-union one. It also includes situations in which an opportunity for growth in the union company has been lost because of the existence of a related non-union company. As the Board noted in Brink’s Canada Limited [1987] OLRB May 647 at p. 656-7:

The Board has held that there can be erosion of bargaining rights without the loss of business and employment by the unionized employer. See the Board’s decision in Kustom Insulation Ltd. [1979] OLRB June 531. As the Board stated in that decision, the union’s bargaining rights attach to the business, if the business expands and employees are added, the union’s bargaining rights would encompass the new employees. In the Kustom Insulation decision, the Board found that the creation of a new, non-union employer, even though not competing for the same business as the unionized employer, was effectively carving out work which the unionized business would otherwise try to get. That was sufficient erosion of the union’s bargaining rights to cause the Board to declare that the two employers be treated as one for purposes of the Act.

[emphasis added]

Erosion of a trade union’s bargaining rights therefore includes situations in which the non-union company performs work which “the unionized business might otherwise at least try to get and the work in respect of which the union would otherwise represent the employees” (Kustom Insulation, [1979] OLRB June 531, at p. 536).

23. With respect to the scope of the union’s bargaining rights, the Board in Kustom Insulation, cited above, stated more specifically at p. 536 that:

[I]n general, bargaining rights obtained by a union attach to the employer’s business and not to a particular segment of its work. If an employer expands its business the union’s bargaining rights automatically encompass the employees doing new work coming within the scope of the collective agreement.

In the present case, MacIsaac expanded its business to include construction work and in particular carpentry work on a renovation project. The Union’s bargaining rights therefore encompass the employees doing that new work coming within the scope of the Provincial Agreement. Notwithstanding this, a portion of that work was done on a non-union basis through a related entity, MacRanald acting as the general contractor. The Board is therefore satisfied that a declaration that in the area of construction MacIsaac and MacRanald are to be treated as one employer for the purposes of the Act would serve to preserve the union’s existing bargaining rights.

24. The Board further rejects the employer’s suggestion that it should exercise its discretion not to make a “single employer” declaration on the basis that there was no evidence that MacRanald’s and MacIsaac’s involvement (presumably in respect of construction work on a renovation project) was anything more than a one-time undertaking. There is simply no support for the proposition that an employer may avoid the terms of a collective agreement and the union’s bargaining rights provided it only does so on a single project.

(iii) New Arguments relating to the Application of the Gaming Control Act

25. Finally, the Employer raises a new objection to the effect that the Union cannot represent the employees of MacRanald due to the operation of the Gaming Control Act, 1992 (the “GCA”). As previously noted, this is an objection, which the Employer could have and should have raised at the hearing before the Board at first instance. Notwithstanding this, the Board is satisfied that the objection raises important issues of Board policy and practice and as such the Board will exercise its discretion to consider its merits.

26. The Employer relies on the provisions of section 4 (1.2) of the GCA for the proposition that no union shall represent persons employed in gaming premises unless the trade union and such of its officers, officials and agents are registered as suppliers. The Employer also submits that MacRanald has an obligation under section 21(2) of the GCA to ensure that its premises are operated in accordance with the GCA.

27. With respect to this latter submission, the Board notes parenthetically that although the Employer argues that MacRanald has an obligation to ensure that its gaming premises are operated in accordance with the GCA, MacRanald has already engaged carpenters represented by the Union in this case to work on MacRanald’s premises. It did so when it engaged MacIsaac to perform a portion of the carpentry work on the Renovation Project.

28. The provisions of the GCA and its regulations in issue read as follows:

GCA

Definitions

1. –(1) In this Act,

“game of chance” means,

(a) a lottery scheme for which a licence is required, or

(b) a lottery scheme prescribed by the regulations which is conducted and managed by the Ontario Lottery and Gaming Corporation under the authority of paragraph 207(1)(a) of the Criminal Code (Canada);

“gaming premises” means a place which is kept for the purpose of playing games of chance;…

“person” means an individual, corporation, organization, association or partnership;…

“registered supplier” means a person registered as a supplier under this Act;…

“regulations” means the regulations made under this Act;

Restrictions on suppliers

4.—(1) Except as provided in this Act and the regulations, no person shall provide goods or services with respect to the playing of a lottery scheme for which a licence is required is required or hold himself, herself or itself out as providing those goods or services, unless,

(a) the person is registered as a supplier; and

(b) the person is providing those goods or services to a licensee or a registered supplier.

(1.1) Except as provided in this Act and the regulations, no person shall provide goods or services for a game of chance conducted and managed by the Ontario Lottery and Gaming Corporation or for any other business operated by, or on behalf of, or under contract with the Ontario Lottery and Gaming Corporation operated in conjunction with such a game of chance unless,

(a) the person is registered as a supplier; and

(b) the person is providing those goods or services to the Ontario Lottery and Gaming Corporation or a registered supplier.

(1.2) In addition to any provision of the Labour Relations Act, 1995, no trade union within the meaning of that Act shall represent persons employed in gaming premises unless the trade union and such of its officers, officials and agents as are prescribed by the regulations are registered as suppliers.

Duty of Supplier

21.(2) A registered supplier who provides gaming premises shall ensure that the premises is operated in accordance with the Act, the regulations and the terms of the supplier’s registration and the licences for gaming events held in the premises.

Ontario Regulation 385/99 – Games of Chance Conducted and Managed by the Ontario Casino Corporation and the Ontario Lottery Corporation

1. In this Regulation,

“gaming employee” means an individual who is employed in the operation of a casino, charity casino, slot machine facility or prescribed lottery scheme, whose regular duties require access to any area of the premises used for gaming-related purposes and who does not supervise other individuals, but does not include an employee whose activities, in the opinion of the Registrar do not affect the integrity of the operation of the gaming premises;

“trade union” means a trade union within the meaning of the Labour Relations Act, 1995 that represents persons employed in a gaming premises.

29. In response to the Employer’s objection, the Union submits that the registration contemplated under the GCA and/or regulations is only for employees who are regularly employed in an employer’s gaming premises. It therefore submits that neither the construction employees on site at the Renovation Project nor any of the trade unions representing them need to be registered under the GCA. In the alternative, the Union states that if registration is, in fact, required then there is no reason that appropriate registrations could not be obtained in future. In effect, the Union acknowledged that at the time of its response to the reconsideration application it was not registered as a supplier under the GCA.

30. The Union relies on the definition of “gaming employee” and “trade union” under Regulation 385/99 in support of its position that registration contemplated under the GCA and/or its regulations is only for employees who are regularly employed in an employer’s gaming premises. It therefore submits that neither the construction employees on site at the Renovation Project nor any of the trade unions representing them need to be registered under the GCA.

31. With respect to this submission, the Board notes that the definitions contained in Regulation 385/99 cited by the Union do not apply to the obligation contained in section 4 (1.2) of the GCA referred to by the Employer. Instead, section 1 of the Regulations makes clear that the definitions set out thereunder apply in that Regulation, which, in turn, relates to “games of chance conducted and managed by the Ontario Casino Corporation and the Ontario Lottery Corporation” referred to in section 4 (1.1) of the GCA.

32. On the other hand, section 4 (1.2) of the GCA creates an obligation on a trade union and such of its officers, officials and agents as are prescribed by the regulations to register as suppliers in order to represent persons employed in gaming premises. This obligation of registration is in addition to any provision of the Act. The question therefore is whether or not the Union is required to register as a supplier in order to represent carpenters employed at MacRanald’s facilities.

33. The employees working as carpenters themselves clearly fall within the definition of “persons” defined in section 1 of the GCA. It therefore remains to be determined whether or not carpenters employed at MacRanald’s facilities including on the Renovation Project are “employed in gaming premises” within the meaning of section 4 (1.2) of the GCA. The term “gaming premises” is defined in section 1 of the GCA as “a place which is kept for the purpose of playing games of chance.” The evidence was that the Renovation Project involved a renovation of MacRanald’s racetrack and other gaming facilities including slot machines, which facility falls under the definition of “gaming premises”.

34. The reference in section 4 (1.2) of the GCA to “persons employed in gaming premises” arguably includes construction employees employed in gaming premises. A plain reading of that section, in fact, suggests that the Union (and its officers, officials and agents) are required to register as suppliers in order to represent carpenters or carpenters’ apprentices employed at MacRanald’s facilities. The Union submits that there is no reason why the appropriate registrations could not be obtained in future if registration is indeed required.

35. The Board is not aware of any previous Board decisions, which have considered a trade union’s failure to be registered as a supplier under the GCA in the context of a related employer application. The Board has, however, had experience dealing with the failure of a trade union seeking to be certified to represent employees employed in gaming premises to be registered as a supplier under the GCA.

36. In those previous circumstances, the Board determined that it was appropriate to defer issuing a certificate to the union (which it would otherwise have been entitled to under the provisions of the Act) until such time as the union notified the Board that it had obtained the requisite registration(s) under the GCA. (See for example, Windsor Casino Limited [1994] O.L.R.D. No. 4242; Complex Services Inc. (c.o.b. Casino Niagara) [2000] O.L.R.D. No. 985; Sudbury Downs, a Division of MacRanald Enterprises Inc. [2000] O.L.R.D. No. 1636; Sudbury Downs, a Division of MacRanald Enterprises Inc. [2000] O.L.R.D. No. 1669.) In those circumstances, the Board disposed of all issues arising under the Act and simply deferred issuing a certificate until such time as the applicant advised the Board that it had obtained the requisite registration(s) under the GCA.

37. The Board similarly finds it appropriate to defer making the declarations set out at paragraph 45 of its Decision until such time as the Union notifies the Board that it has obtained any registration(s) required under the GCA in order to represent individuals employed in MacRanald’s facilities or, alternatively provides the Board with satisfactory confirmation from the Alcohol and Gaming Commission that no registration is, in fact, required by it. Once such notice is received, the Board will entertain submissions from the parties as to the appropriate effective date of the declarations in the circumstances. The Board accordingly amends its Decision to that extent. Paragraph 46 of the Decision directing that the grievance in Board File No. 0838-99-G be listed for hearing is also deleted. That grievance will be adjourned pending the final disposition of this application.

“Caroline Rowan”

for the Board