1182-00-R International Brotherhood of Electrical Workers, Local Union 353, Applicant v. Midtown Enterprises Limited, Responding Party.

1189-00-U International Brotherhood of Electrical Workers, Local 353, applicant v. Midtown Enterprises Limited, Zenith Electric Limited, Responding Parties.

1218-00-G International Brotherhood of Electrical Workers, Local 353, Applicant v. Zenith Electric Limited, Midtown Enterprises Limited, Responding Parties.

1219-00-R International Brotherhood of Electrical Workers, Local 353, Applicant v. Zenith Electric Limited, Midtown Enterprises Limited, Responding Parties.

BEFORE: David A. McKee, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.

DECISION OF THE BOARD; November 23, 2000

[1]. These various applications have been settled by the parties to them. The terms of this settlement are as follows:

OLRB Files No. 1182-00-R

1198-00-U

1218-00-G 1219-00-R

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, LOCAL 353

(The Applicant)

• and -

ZENITH ELECTRIC LIMITED,

MIDTOWN ENTERPRISES LIMITED

(The Responding Parties)

MINUTES OF SETTLEMENT AND CONSENT ORDER

WHEREAS the Applicant has filed a grievance, related employer application, unfair labour practice complaint and an application for certification against these Responding Parties;

AND WHEREAS the application for certification concerned employees of Midtown Enterprises Limited and the majority of the ballots cast in the representation vote held by the Ontario Labour Relations Board were cast in favour of representation by the Applicant;

AND WHEREAS the Board has not yet issued the certificates sought in the application for certification;

AND WHEREAS, the parties have met and have resolved all issues in dispute between them;

THEREFORE, the parties agree as follows and request that the Board issue the declarations and order contained herein:

1. The parties agree that the correct corporate name for one of the Responding Parties is “Zenith Electric Limited” and that the Board should amend the name of that Responding Party nunc pro tunc.

2. Dominic Angaran acknowledges and admits that he is a principal of Zenith Electric Limited, that he has some direction and control of Midtown Enterprises Limited, and that both companies perform, or have performed, bargaining unit work.

3. The parties acknowledge and agree that Zenith Electric Limited is bound to the Principal Agreement, the Provincial Linework Agreement, and the Communications Agreement (collectively described as the “Principal Agreement”) for all work falling within the sectors described in the Principal Agreement.

4. The parties agree that the conditions necessary for a declaration under sub-section 1(4) of the Labour Relations Act, 1995 have been met and that the Responding Parties are a common, related employer for purposes of the labour relations under ss.1(4) of the Act. Accordingly, Midtown Enterprises Limited is also bound to the Principal Agreement.

5. The Responding Parties, as one employer for purposes of labour relations, hereby recognize the Applicant as the bargaining agent for all electricians and electrical apprentices in their employ who perform bargaining unit work in the residential sector of the construction industry in Board Area 8. The Responding Parties agree that, therefore, they are bound to the Residential Low-Rise Agreement, in accordance with the accreditation provisions of the Act.

6. The Responding Parties acknowledge that, in the name Midtown Enterprises Limited, they have breached the Union security provisions, Article 5, of the Principal Agreement by employing persons who are not members of the Applicant to perform bargaining unit work and by letting work to subcontractors which are not in contractual relations with the Applicant.

7. The parties request that the Board issue the following declarations and orders:

(i) Declare that the name of the Responding Party is amended, nunc pro tunc, to Zenith Electric Limited;

(ii) Declare that Midtown Enterprises Limited and Zenith Electric Limited carry on associated and related businesses under common direction and control and, therefore, are one employer for purposes of labour relations under ss.1(4) of the Labour Relations Act, 1995;

(iii) Declare that the Responding Parties, as related employers under the Act, are equally 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 (the “Principal Agreement”) for the performance of all covered by that agreement, and to the Residential Lowrise Agreement between the Applicant and the Electrical Contractors Association of Toronto effective until May 31, 2002, for work covered by that agreement;

(iv) Declare that the Responding Parties have violated Article 5 of the Principal Agreement;

(v) Order that the damages payable by the Responding Parties to the Applicant for their violation of the Principal Agreement are $48,000.00;

(vi) Order that the Responding Parties pay the damages owing to the Applicant pursuant to the following schedule:

(a) $33,000.00 payable as follows: $23,000.00 forthwith and $10,000.00 on or before January 15, 2001;

(b) $15,000.00 to the Applicant only if the Applicant has grieved within one year of the release of the Board decision herein that the Responding Parties, or a business found to be a related or successor employer to the Responding Parties, have violated the Union security provisions of the Principal Agreement, either by employing a person(s) who are not members of the Applicant to perform bargaining unit work or by letting the performance of bargaining unit work to persons who are not signatory to the Principal Agreement, and liability for that violation is eventually established, either by Board order or by the admission of the Responding Parties. In such future grievance, if any, the $15,000.00 in damages ordered herein becomes payable to the Applicant in addition to any damages which are proved as a result of the future violations;

(c) The amount in subparagraph (b) is payable forthwith if the payment due on January 15, 2001 referred to in subparagraph (a) above is not received by the Applicant.

8. In consideration of the foregoing, the Applicant releases and discharges Midtown and Zenith (including its principals, officers and directors) of and from all grievances, complaints, causes of actions and claims of any description arising prior to the date of execution of these Minutes of Settlement and Consent Order.

9. The parties agree that they will not rely on seek or rely on [sic] any allegations of unlawful, improper or irregular conduct arising prior to the date of execution of these Minutes of Settlement and Consent Order, in any application, complaint, referral, action or proceeding of any description whatsoever. For purposes of clarity, and without limiting the generality of the foregoing, the parties agree that unlawful, improper or irregular conduct includes any violation(s) of the Labour Relations Act, 1995 or its predecessors and any allegation, pleading, or material fact in any of the following Ontario Labour Relations Board proceedings, relied on in relation to any remedy or relief; 1182-00-R, 1198-00-U, 1218-00-G and 1219-00-G.

10. The owners/principals of the Responding Parties shall advise the Applicant, in writing, if at any time prior to January 1, 2002, they are or become involved with or associated with any other electrical contracting business (as an owner, consultant, contractor or employee), operating and/or performing bargaining unit work within the Province of Ontario. In the event that the Responding Parties fail to notify the Applicant as provided herein the provisions of paragraph 9 shall not apply.

11. The Applicant shall file this document with the Board in resolution of all matters and shall advise the Board that, in spite of the results of the representation vote, the Board need not issue certificates to the Union in OLRB File No. 1182-00-R, as the Union has obtained its bargaining rights with Midtown Enterprises Limited pursuant to ss. 1(4) of the Act and the agreements and admissions made therein. The Board may destroy the ballots cast in the representation vote pursuant to its normal practice.

DATED at Toronto this 9^th of November, 2000

“Michael Obram” “Walter Thornton”

For the Applicant, IBEW Local 353 For the Responding Parties

[2]. The Board therefore makes the declarations and grants the orders as agreed to by the parties; subject to any representations by any employee.

[3]. The responding parties are directed to post a copy of this decision at any job site where persons affected by the application for certification are working and to keep it posted at such location for 30 days. If any employee wishes to make submissions regarding these Minutes, he or she shall do so by letter addressed to the Registrar, Ontario Labour Relations Board, 505 University Avenue, 2nd Floor, Toronto, Ontario M5G 2P1. If no such representations are received by that date, the above-noted orders and declarations will be final.

“David A. McKee”

for the Board