3109-99-R International Union of Bricklayers and Allied Craftworkers, Local 6, Applicant v. Marathon-Delco Inc.; Marathon Construction Services (1991) Inc.; 245 Ouellette Ave. Investments Ltd., 608322 Ontario Inc.; Al Fanelli Construction Co. Ltd.; 308237 Ontario Limited; Marathon Construction Inc.; 782647 Ontario Limited; Mario Mancini Contractors Ltd., Responding Parties.
BEFORE: Caroline Rowan, Vice-Chair, and Board Members G. Pickell and G. McMenemy.
APPEARANCES: Michael Gottheil and Lou Mascarin for the applicant; Arthur Barat and Avril Farlam for Marathon-Delco Inc., 308237 Ontario Limited and 245 Ouellette Ave. Investments Ltd.; Susan Fanelli for 308237 Ontario Limited and 245 Ouellette Ave. Investments Ltd.; no one appearing for 608322 Ontario Inc., 782647 Ontario Limited, Mario Mancini Contractors Ltd., Marathon Construction Services (1991) Inc., Al Fanelli Construction Inc. and Marathon Construction Inc.
DECISION OF THE BOARD; November 1, 2000
This is an application under section 69 and 1(4) of the Labour Relations Act, 1995, S.O. 1995, c.1 (the "Act") for declaratory and other relief.
The hearing in this matter was scheduled to commence on Thursday, August 24 and Friday, August 25, 2000, at 9:30 a.m. At that time, none of the responding parties, 608322 Ontario Inc., 782647 Ontario Limited and Mario Mancini Contractors Ltd., and Marathon Construction Services (1991) Inc., nor a representative of these responding parties, appeared at the hearing. The Board waited the normal thirty (30) minutes prior to convening the hearing. At the outset of the hearing, the Board specifically asked Mr. Alphonso Fanelli, whether he was attending on behalf of Marathon Construction Services (1991) Inc. given that he is listed on the Corporate Profile filed with the Board as one of the directors of that company. Mr. Fanelli stated that he was not and that he took no position on behalf of that company.
At the hearing, counsel for the applicant requested that the Board make a declaration that the responding parties, 608322 Ontario Inc., 782647 Ontario Limited, Mario Mancini Contractors Ltd., Marathon Construction Services (1991) Inc., and Marathon-Delco Inc., are one employer within the meaning of subsection 1(4) of the Act. The applicant did not pursue the allegation in its application under section 69 of the Act that there had been a sale of business by Marathon-Delco Inc. to 608322 Ontario Inc., 782647 Ontario Limited, Mario Mancini Contractors Ltd. and/or Marathon Construction Services (1991) Inc.
By way of background, the Board notes that the application was filed on January 20, 2000. All of the responding parties filed responses to the application on or about February 3, 2000. At that time, the responding party, Marathon Construction Services (1991) Inc., was represented by Mr. Bruce Pollack and the responding parties, 608322 Ontario Inc., 782647 Ontario Limited and Mario Mancini Contractors Ltd., were represented by Mr. Armando F. DeLuca. The responding parties, Marathon-Delco Inc., 245 Ouellette Ave. Investments Ltd., 308237 Ontario Limited, Al Fanelli Construction Co. Ltd., and Marathon Construction Inc., were represented by Mr. Barat.
On or about May 25, 1999, the Board sent a "Notice of Hearing" to the applicant and each of the responding parties and to their respective solicitors. In addition to providing notice of the time and location of the hearing, the "Notice of Hearing" contains a statement which reads as follows:
- IF YOU DO NOT ATTEND THE HEARING, THE BOARD MAY DECIDE THE APPLICATION WITHOUT CONSIDERING ANY DOCUMENT FILED BY YOU.
In addition, Rule 45 of the Board's Rules of Procedure also provides as follows:
Where A Person Fails to Attend or Participate in a Hearing or Consultation
- Where any person has been notified of a hearing or consultation in the way required by these Rules and fails to attend (in the case of an oral hearing or consultation) or to participate (in the case of an electronic hearing), the Board may decide the application without further notice to that person and without considering any document filed by that person.
- By letter dated August 21, 2000, counsel for Marathon Construction Services (1991) Inc., indicated to the Board that he has received instructions from his client terminating his retainer on its behalf and as result he will not be attending at the hearing of this matter. By letter dated August 23, 2000, counsel for Mario Mancini Contractors Ltd., 608322 Ontario Inc. and 782647 Ontario Limited advised the Board as follows:
I wish to confirm that I have received instructions from Mario Mancini Contractors Ltd., 608322 Ontario Inc. and 782647 Ontario Limited, not to contest the proceedings scheduled for Thursday, August 24 and Friday, August 25, 2000. My retainer is terminated and I will not be attending at the hearing of this matter.
At the hearing in this matter, Mr. Barat advised that he appeared on behalf of Marathon-Delco Inc., 245 Ouellette Ave. Investments Ltd., 308237 Ontario Limited, but that he was not appearing on behalf of Al Fanelli Construction Co. Ltd., or Marathon Construction Inc. as both of these companies were no longer active and had, in fact, been "cancelled" many years ago.
Having regard to the failure of the responding parties, Mario Mancini Contractors Ltd., 608322 Ontario Inc., 782647 Ontario Limited, and Marathon Construction Services (1991) Inc., to attend at the hearing, and pursuant to Rule 45 of the Rules of Procedure, the Board may determine the application without considering any document filed by these responding parties. The Board also notes that the responding parties, Mario Mancini Contractors Ltd., 608322 Ontario Inc. and 782647 Ontario Limited, do not contest the proceedings and that Mr. Barat advised the Board at the hearing in this matter, that his clients do not oppose the applicant's request that the Board make a declaration that Marathon-Delco Inc., 608322 Ontario Inc., 782647 Ontario Limited, and Marathon Construction Services (1991) Inc., are a single employer within the meaning of subsection 1(4) of the Act.
In these circumstances and having regard to the material filed in the application and to the submissions of counsel for the applicant, the Board is satisfied that the responding parties, Marathon-Delco Inc., Mario Mancini Contractors Ltd., 608322 Ontario Inc., 782647 Ontario Limited and Marathon Construction Services (1991) Inc., carry on associated or related activities within the meaning of section 1(4) of the Act. The Board is also satisfied that this is an appropriate case to declare that these responding parties constitute one employer for the purposes of the Act.
The Board therefore hereby declares that:
(i) Mario Mancini Contractors Ltd., 608322 Ontario Inc., 782647 Ontario Limited, Marathon Construction Services (1991) Inc. and Marathon-Delco Inc. constitute one employer for the purposes of the Act;
(ii) Mario Mancini Contractors Ltd, 608322 Ontario Inc., 782647 Ontario Limited, and Marathon Construction Services (1991) Inc. are bound by the collective agreement between the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers and the Masonry Industry Employers Council of Ontario.
- The hearing of the outstanding issues in this application is scheduled to continue on December 13 and 14, 2000, March 7 and 12, 2001, commencing at 9:30 a.m., in the "Board Room", 2nd Floor, 505 University Avenue, Toronto, Ontario.
"Caroline Rowan"
for the Board