1678-98-G Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and United Association of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527, Applicants v. Darryl Gueguen c.o.b. as Countryside Plumbing & Heating and Dordan Mechanical Contractors Ltd., Responding Parties.
1679-98-R Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and United Association of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527, Applicants v. Darryl Gueguen c.o.b. as Countryside Plumbing & Heating and Dordan Mechanical Contractors Ltd., Responding Parties.
BEFORE: Harry Freedman, Vice-Chair.
APPEARANCES: C. Flood, G. Tubman and B. Christie for the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada; C. Flood and S. Morrison for the United Association of the Plumbing and Pipefitting Industry of the United states and Canada, Local 527; Frank A. Angeletti, Christopher M. Little and Darryl Gueguen for Dordan Mechanical Contractors Ltd. and Darryl Gueguen for the responding parties.
DECISION OF THE BOARD; January 12, 2000
This 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") (Board File No. 1678-98-G) and an application under sections 69 and 1 (4) of the Act for declaratory and other relief (Board File No. 1679-98-R). The Chair of the Board authorized me to sit alone to hear and determine these matters pursuant to section 110(14)(a) of the Act.
The parties advised me that prior to the commencement of the hearing of these two matters on January 11, 2000, they had agreed to adjourn the matter in Board File No. 1678-98-G sine die. They said that the disposition of that grievance matter was dependent upon the determination of the application under sections 69 and 1 (4) of the Act in Board File No. 1679-98-R. Therefore, on agreement of the parties, the grievance referral in Board File No. 1678-98-G is adjourned sine die pending the disposition of the application in Board File No. 1679-98-R. Unless any party requests that it be listed for hearing within four weeks of the disposition of the application in Board File No.
1679-98-R, it will be deemed terminated.
- The parties submitted representations with respect to a number of preliminary issues in the section 69 and 1 (4) application. Following those representations, the hearing recessed over the lunch period when I considered the parties’ arguments with respect to one of the preliminary issues raised. When the hearing reconvened, I gave the following oral decision:
This is an application for declaratory and other relief under sections 69 and 1(4) of the Labour Relations Act, 1995. The applicants allege that Darryl Gueguen c.o.b. Countryside Plumbing & Heating signed a voluntary recognition agreement in 1972 by which he agreed to be bound by the collective agreement between Local 527 and the Mechanical Contractors Association Zone 7. The applicants claim that the voluntary recognition agreement created bargaining rights for the applicants and that several years later, after Dordan Mechanical was established in 1985 by the son and spouse of Darryl Gueguen, there was either a sale of business from Darryl Gueguen to Dordan Mechanical and or Darryl Gueguen and Dordan Mechanical carried on associated or related activities or business under common control and direction. The applicants seek a declaration that Dordan Mechanical and Darryl Gueguen c.o.b. as Countryside Plumbing & Heating are one employer under the Act or that there was a sale of a business from Darryl Gueguen to Dordan Mechanical with the result that Dordan Mechanical is bound by the collective agreement by which the applicants are bound in the ICI sector of the construction industry.
There were a number of preliminary issues raised by counsel for the responding parties. Counsel submits that the first issue the Board must determine is whether there was a valid collective agreement by which Mr. Gueguen was bound that created bargaining rights. He also pointed out that there was an issue between him and counsel for the applicants as to which party had the burden of proving the existence and validity of the collective agreement. In addition to those two issues, counsel also raised, as a preliminary matter, the effect of the amendment to section 1(4) of the Act (as it then was) that became effective on July 1, 1975 with the addition of the words “whether or not simultaneously” and also said that there were issues relating to production of documents by the applicants.
After hearing the parties’ representations on the nature of the preliminary issues, I directed the parties to make submissions with respect to the second issue raised by counsel, that is, who had the burden of proof to establish the existence of a collective agreement within the meaning of the Act in this case. Simply put, the applicants submitted that the responding parties had the burden of proving that there was no collective agreement between Local 527 and Darryl Gueguen while the responding parties submitted that the burden of proof was on the applicants.
Counsel in his response filed on behalf of Dordan Mechanical submitted that Darryl Gueguen has not carried on business under the name Countryside Plumbing & Heating since 1973. He also stated in paragraph 2 of Appendix A of the response:
“Mr. Gueguen is a qualified plumber by training. In or about July 1972, Mr. Gueguen signed a voluntary recognition agreement which purported to bind Countryside to the Collective Agreement between the Mechanical Contractors Association Zone 7 and The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada-Local Union 527 (the “Union”). This Collective Agreement recognized the Union as the exclusive bargaining agent for all of Countryside’s plumbers, steamfitters, welders and apprentices employed in all sectors of the construction industry described in Article 1(2) of the Collective Agreement. The term of this Collective Agreement was August 11, 1970 to April 30, 1973.
Paragraph 3 of Appendix A also stated: “At the time Mr. Gueguen signed the voluntary recognition agreement….”
Counsel for the applicants relies on those admissions to assert that in the circumstance of this case, the burden is on the responding parties to prove that the recognition agreement that was admittedly signed in 1972 was not a collective agreement. Counsel points out that the responding parties have not taken issue with the formality of the execution of the documents. Counsel argued that if the responding parties were going to assert a different version of the facts than asserted by the applicant, then under Rule 30 (d) and 38, they must do so promptly.
Rules 30 (d) and 38 provide:
“30. Any response filed with the Board must include the following
details:
(d) where the responding party relies on a version of the facts different from the applicant’s, a detailed statement of all material facts on which the responding party relies, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly;
- Where a party in a case intends to allege improper conduct by
any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.”
Counsel also submits that where the burden of proof lies depends on the nature of the defence being asserted. In this case, the responding parties are, in effect, relying on employer support to say that the recognition agreement was not valid. Therefore, they have the burden of proving that element, and since they have the burden of proof with respect to that issue, they have the burden of proving that there is no collective agreement in existence.
Counsel also relies on sections 1(5) and 69(13) to submit that the burden of proof in this case that there is no collective agreement rests on the responding parties. Those two sections state:
“1 (5) Where, in an application made pursuant to subsection (4), it is alleged that more than one corporation, individual, firm, syndicate or association or any combination thereof are or were under common control or direction, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.”
69 (13) Where, on an application under this section, a trade union alleges that the sale of a business has occurred, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.”
Dealing first with the argument under sections 69 and 1 (5), I am not persuaded that those two provisions change the normal approach to proof of facts which is that the party who asserts a fact must prove that fact. Counsel submitted that section 1(5), while being, on its words, limited to requiring responding parties to adduce facts material to the allegation of “common control or direction”, has been interpreted more broadly by the Board. He also submitted that section 69 (13) requires the responding party to adduce all facts material to the allegation of a sale of a business, which in the context of this case, by virtue of section 69(2) must include the existence of the collective agreement. Counsel referred to the Board’s decision in Somerville Belkin Industries Limited, [1985] OLRB Rep. May 734 at paragraph 14 in which the Board wrote:
“While there may well be a distinction between facts and evidence, we do not think it is a helpful one in interpreting the onus provisions of sections 63 (13) [now 69 (13)] and 1 (5) of the Labour Relations Act. Nor is the discovery analogy entirely parallel, appropriate, or applicable to proceedings before this Board. Of more assistance is the remedial thrust and purpose of the 1975 amendments, which, in our view, clearly require the respondents to produce witnesses to testify under oath as to the material facts of the transaction and relationships under examination, as well as the completeness and materiality of those facts. To say that this obligation can be satisfied by pleadings—which need not be substantiated—is to blunt the intent of the legislative change. Moreover, while it may be that section 1 (5) is restricted to the question of common control or direction, section 63 (13) clearly has no such limitations. Section 63 (13) requires the respondent employers to adduce all of the facts of the transaction(s) between them said by the applicant union to constitute a transfer of all or part of a business. As noted above, that determination turns on a careful analysis of all of those facts, having regard to the purpose and ambit of section 63, and in the absence of a more complete disclosure of the commercial facts, we are hesitant to limit the obvious effect of section 63.”
In my view, the Board in that case was requiring the responding parties to adduce evidence relevant to the “transaction(s) between them said by the applicant union to constitute a transfer of all or part of a business.” That decision does not, in my opinion, go so far as to require the responding parties to call evidence about the collective agreement. The Board in that case also recognized that section 1(5) is restricted so it clearly does not place any burden on the responding parties to deal with the existence of a collective agreement.
Counsel for the responding parties pointed out that the applicant did not allege that Darryl Gueguen signed a collective agreement with Local 527. The assertion, he points out, is that a voluntary recognition agreement was signed by which Mr. Gueguen c.o.b. as Countryside Plumbing & Heating agreed to bound by the Mechanical Contractors Association Zone 7 collective agreement with Local 527. The response of the responding party takes issue with the effect of having signed a voluntary recognition agreement.
Whether the responding parties will be permitted to lead evidence about the effect of the recognition agreement and whether the recognition agreement is a collective agreement are not matters I need to decide at this preliminary stage. There is now a question of whether there was a collective agreement. The response does not admit the existence of any such collective agreement. And, I note, the application does not allege that Mr. Gueguen signed a collective agreement, although it is clear on the pleadings that he did sign a document which purported to be a recognition agreement.
The responding parties take issue with the existence of a collective agreement. They say to the applicants: “prove the collective agreement”. The applicants seek ultimately to have the Board find that Dordan Mechanical is bound by a collective agreement with the applicants. Dordan Mechanical, which came into existence, on the applicant’s pleading, some 13 years after the recognition agreement was signed is, in my view, entitled to require the applicants to prove the existence of a collective agreement which is the source of the bargaining rights on which the applicants rely.
I emphasize that in this decision I am not determining whether the responding parties can raise technical issues over the formalities associated with the execution of the document, in view of the exchange of correspondence between counsel dated December 17, 1998 and April 16, 1999. It does appear to me that the counsel for the responding parties was limiting his attack on the validity of the recognition agreement “on the basis that it was the subject of employer support in breach of what is now section 15….” Simply put, the applicants assert that there is a voluntary recognition agreement in existence that created bargaining rights. At this stage, the burden is on the applicants to prove the existence of that voluntary recognition agreement. The validity of the recognition agreement, whether the recognition agreement created bargaining rights and the ability of the responding parties to assert the defences of employer support or any other arguments will be determined later.
Following the oral ruling, the parties discussed the production issue raised by the responding parties with respect to minutes maintained by the applicants. The parties agreed that counsel for the responding parties would provide counsel for the applicants with a list of projects and names on or before January 31, 2000. Counsel for the applicants undertook to review the minutes maintained by the applicants for the period from July 1972 up September, 1998 and will produce for inspection by counsel for the responding parties those minutes which relate to or mention the projects or names contained on the list delivered by counsel for the responding parties. The minutes, if any, produced for inspection by the applicants, must be produced for inspection on or before March 6, 2000. The method by which counsel for the responding parties reviews the minutes produced by the applicant is left to the parties. If they cannot agree, the Board will determine the matter.
If either counsel wishes to make submissions with respect to any pre-hearing issues or request interim orders prior to the hearing, those submissions and requests must be delivered to the Board and to other counsel on or before March 27, 2000. If counsel wishes to respond, that response must be delivered to the Board on or before April 6, 2000, at which time the Board will determine the matters raised in the request or submissions.
The hearings in this application presently scheduled for January 12 and 18, 2000 are adjourned to May 23, 24, 25, July 4, 5, 6, September 7, 8, 21 and 22, 2000. When the hearing resumes on May 23rd, the Board will deal first with the existence and validity of the recognition agreement and collective agreement and the remaining preliminary issue relating to the July 1975 amendment of section 1(4).
The Board directs the parties to each prepare a detailed statement of the facts on which they intend to rely at the hearing of this matter and compile all of the documents on which they intend to rely at the hearing of this matter and deliver their statement and documents to the Board and to other counsel on or before May 9, 2000. The parties will not be permitted to adduce evidence with respect to facts not contained in their statement or introduce documents not delivered to the Board except with leave of the Board. Leave would not be granted except with respect to facts or documents that come to the parties’ attention after May 9, 2000 that could not have been discovered through the exercise of due diligence.
This panel of the Board is seized with this matter.
“Harry Freedman”
for the Board