International Brotherhood of Electrical Workers, Local 353 v. Volta Electrical Contractors Ltd. 2000 OLRB mini 4448

3051-95-R The International Brotherhood of Electrical Workers, Local 353, Applicant v. Volta Electrical Contractors Ltd. and Westbridge Electric Contractors Ltd. and 1086289 Ontario Inc. c.o.b. as Urban Electrical Contractors, Responding Parties v. Danny Ajamian, Intervenor.

BEFORE: D. L. Gee, Vice-Chair.

APPEARANCES: Philip J. Wolfenden on behalf of 1086289 Ontario Inc. c.o.b. as Urban Electrical Contractors; Craig Flood appearing on behalf of The International Brotherhood of Electrical Workers, Local 353; no one appearing on behalf of Volta Electrical Contractors Ltd. and Westbridge Electric Contractors Ltd.

DECISION OF THE BOARD; October 10, 2000

1This decision deals with a request for reconsideration of a decision of a differently constituted panel of the Board. For the reasons that follow, this request for reconsideration is denied. It is my determination that the only issue raised by the request for reconsideration that requires redress is the potential damages that accumulated during the three year delay in the release of the Board’s July 19, 1999 decision. Given that the Board has the power, in the context of the grievance referrals in which damages are being sought, to relieve against the payment of damages, I am not persuaded that the Board’s excessive delay of the release of the July 19, 1999 decision should cause reconsideration thereof.

2The Board’s power to reconsider an earlier decision is found in section 114 of the Labour Relations Act (the “Act”), which reads as follows:

114. (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

3Section 114 of the Act grants the Board a discretion to reopen and reconsider a decision where the Board considers such to be advisable.

4It is necessary to set out the lengthy history leading up to this request for reconsideration in order to place the request in context.

What this Case is About

5This matter is an application under section 64 (now section 69) and subsection 1(4) of the Act filed on November 14, 1995.

6Section 69 of the Act provides for the vesting of a trade union’s bargaining rights in a “business” such that when the business is sold or transferred, in whole or in part, the union’s bargaining rights, subject to issues arising out of the intermingling of employees, are not affected. In contrast to principles of contract law, where the contract binds only the parties actually bound to it, section 69 of the Act effectively attaches the trade union’s bargaining rights, not to the corporate entity named as the employer when bargaining rights were obtained, but rather to the commercial activity that is being carried on. Section 69 is mandatory and grants the Board no discretion as to whether a sale of business declaration will be made. Section 69 provides as follows:

69. (1) In this section,

"business" includes a part or parts thereof; ("entreprise")

"sells" includes leases, transfers and any other manner of disposition, and "sold" and "sale" have corresponding meanings. ("vend", "vendu", "vente")

(2) Where an employer who is bound by or is a party to a collective agreement with a trade union or council of trade unions sells his, her or its business, the person to whom the business has been sold is, until the Board otherwise declares, bound by the collective agreement as if the person had been a party thereto and, where an employer sells his, her or its business while an application for certification or termination of bargaining rights to which the employer is a party is before the Board, the person to whom the business has been sold is, until the Board otherwise declares, the employer for the purposes of the application as if the person were named as the employer in the application.

(6) Despite subsections (2) and (3), where a business was sold to person who carries on one or more other businesses and a trade union or council of trade unions is the bargaining agent of the employees in any of the businesses and the person intermingles the employees of one of the businesses with those of another of the businesses, the Board may, upon the application of any person, trade union or council of trade unions concerned,

(a) declare that the person to whom the business was sold is no longer bound by the collective agreement referred to in subsection (2);

(b) determine whether the employees concerned constitute one or more appropriate bargaining units;

(c) declare which trade union, trade unions or council of trade unions, if any, shall be the bargaining agent or agents for the employees in the unit or units; and

(d) amend, to such extent as the Board considers necessary, any certificate issued to any trade union or council of trade unions or any bargaining unit defined in any collective agreement.

(8) Before disposing of any application under this section, the Board may make such inquiry, may require the production of such evidence and the doing of such things, or may hold such representation votes, as it considers appropriate.

7Subsection 1(4) addresses the situation where there are two or more entities that carry on associated or related businesses that are under common control or direction and the Board considers it “appropriate” to declare them to be one employer for the purposes of the Act. The application of section 1(4) has been defined to a considerable extent by Board jurisprudence setting out when the Board considers it “appropriate” to declare two or more entities to be a single employer. The effect of a declaration is to bind all entities named to any existing collective agreement(s). Subsection 1(4) provides as follows:

1. (4) Where, in the opinion of the Board, associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions concerned, treat the corporations, individuals, firms, syndicates or associations or any combination thereof as constituting one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate.

Although this matter is in fact (as is commonly the case) an application pursuant to both section 69 and 1(4) of the Act, for ease of reference I will refer to this matter in this decision as the “related employer application”.

The History

8This matter was heard by a single vice-chair of the Board (the “original vice-chair”) over a period of four days in June, 1996. The original vice-chair issued a decision on July 19, 1999 declaring a sale of a business to have taken place and declaring Volta Electric Contractors Ltd. (“Volta”) and 1086289 Ontario Inc. c.o.b. as Urban Electric Contractors (“Urban”) to be one employer for the purposes of the Act. The decision further declared Urban to be bound to the relevant collective agreement, namely, the Provincial ICI collective agreement between the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario and the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario.

9On July 18, 1997, at a point in time when the hearings with respect to the related employer application were completed and the Board’s decision was pending, the International Brotherhood of Electrical Workers, Local 353 (“Local 353”) filed an application for certification with respect to the electrical employees of Urban. Local 353 did not assert in its application that the certification application was in the alternative to its position that it already had bargaining rights and was pursuing confirmation of such by way of the related employer application. The employer filed a response but did not mention the outstanding related employer application. On July 24, 1997, the Board issued a decision directing the conduct of a representation vote and requiring the posting of notices in the workplace. Coincidentally, such decision was issued by the same vice-chair that heard the related employer application. Neither the Board’s decision nor the notices issued by the Board for posting in the workplace mentioned the outstanding related employer application. On July 28, 1997, the representation vote was held. As a result of the fact that a number of ballots were challenged, the ballots were not counted until October, 1997. The union lost the vote and the certification application was dismissed by Board decision, issued by a vice-chair other than the original vice-chair, dated October 6, 1999.

10As indicated above, the Board’s decision in the related employer application was issued on July 19, 1999. Between the date that the hearings with respect to the related employer application concluded and the issuance of the Board’s decision, it is not disputed that the union wrote to the Board on numerous occasions asking for the Board’s decision. It is further not disputed that all such letters were copied to the employer. The Board’s system indicates that letters dated January 24 and December 17, 1997; April 16 and August 5, 1998; and May 20, 1999 were received by the Board from Local 353’s counsel.

11The Board’s July 19, 1999 decision outlines the evidence presented at the hearing and, for reasons stated therein, indicates what evidence the vice-chair found to be credible and what evidence the vice-chair found not to be credible. Based on the evidence that the vice-chair found to be credible, the vice-chair concluded that Phil Bartuccio, who subsequently became the owner and operator of Urban, performed work for Volta and was responsible for securing work for Volta. On the basis of such findings of fact, the vice-chair then concluded that Phil Bartuccio was a key person in Volta and that the movement of Phil Bartuccio from Volta to Urban constituted the transfer of a business pursuant to section 69 of the Act and, pursuant to section 1(4) of the Act, resulted in Volta and Urban being one employer for the purposes of the Act. The following quote from the July 19, 1999 decision contains the vice-chair’s assessment of the evidence, findings of fact and determinations:

17. After reviewing the evidence and the submissions of the parties, I find it difficult to accept the contention of Josie and Phil Bartuccio that Phil Bartuccio was not a "key person" in the operation of Volta. When one views certain aspects of their evidence with the undisputed facts, it is quite improbable that Phil was not the "key person" in Volta.

18. Josie and Phil claim that Josie was the person behind Volta. Josie, however, had recently finished high school and had no construction experience. How could general contractors seriously entertain a bid from a person in her situation? Josie asserts that her father helped her to bid the jobs but Peter Bartuccio had little experience with non-residential electrical work. When asked, Peter indicated that he did not know who bid the jobs. If Josie had asked him for help in bidding jobs, one would have thought that he would have known that Josie had bid the jobs. It is difficult to believe that Josie would not have asked Phil for advice on bidding or asked him to bid the jobs given his extensive construction experience, gained primarily from his Westbridge experience.

19. I agree with counsel for Local 353's submission that there were serious inconsistencies in Josie's and Phil's evidence. Most telling was their evidence of when Phil started with Volta and when he started at the Consumers job. If Phil did not start with Volta until the Consumers job was sixty percent completed, as he claimed, this would give some support to their position. However, Josie testified that she engaged Phil's services right from the start and could not recall Phil replacing another person whom she fired for stealing.

20. I also agree with Local 353's submission that an adverse inference can be drawn from the failure of Volta to provide any significant documentation, as directed. It may be that many of the relevant records were disposed of given the passage of time. However, Josie claims that she alone is responsible for the debts incurred by Volta's involvement in the two jobs. One would have thought that she could have provided documentation indicating that she alone is responsible for Volta's debts. An inference can be drawn that the production of such documentation would disclose that she did not bear the burden of the debt by herself.

21. There are other aspects of the evidence that raise concerns about the credibility of Josie's and Phil's evidence. Josie did not know what the term "design/build" meant. Phil certainly knew what these words meant since he performed that kind of work with Westbridge. This raises the general issue of Josie's ability to run Volta and the issue of whether Phil was responsible or involved in obtaining Volta's letterhead and business cards. Is it merely coincidence that Volta obtained the Consumers' work from Belrock, an entity familiar to Phil, and that Volta operated out of 61 Pippen Road, the previous location of Westbridge? Given her lack of experience and involvement in the construction industry, it is difficult to believe that Josie was not in a position to recall what she said to contractors in order to obtain work, given that this would have been quite a unique experience for her. When one views these matters in light of all the evidence, one is forced to conclude that Phil was involved with Volta to a much greater degree than he and Josie claimed.

22. On the evidence before it, the Board is satisfied that Phil Bartuccio performed work for Volta and also was responsible for securing that work. Phil Bartuccio became the essential asset of Volta's business. It would appear that Phil was involved in the revival of Volta and would have continued to pursue his business interests through that vehicle but for the existence of Local 353's bargaining rights, which Phil and Josie learned of during the course of the Sporting Life job. It is most probable that Phil's departure and Volta's cessation of operations were not co-incidental.

23. Accordingly, the Board finds that Phil Bartuccio was a "key person" in Volta. His involvement in Volta and then in Urban constituted a sale of a business within the meaning of section 64 of the Act. In addition, the Board finds that the three pre-conditions in section 1(4) have been met and that this is an appropriate case to exercise the Board's discretion to declare Volta and Urban one employer for purposes of the Act. The Board also declares that Urban is bound to the relevant collective agreement.

12On August 17, 1999, Urban filed a request for reconsideration of the July 19, 1999 decision. This request for reconsideration will be referred to in this decision as the “initial request”. The grounds for the initial request can be summarized as follows:

(i) The related employer application ought to be dismissed because the employees indicated in the course of the representation vote held in connection with the certification application that they did not wish to be represented by a trade union. To force the union on such employees would fly in the face of the purposes of the Act.

(ii) The purpose of section 69 is to preserve bargaining rights and not to extend bargaining rights to a union that, as the vote results in the certification application demonstrate, does not have the support of the employees.

(iii) The purpose of section 1(4) is to prevent the erosion of bargaining rights. The Board should not grant bargaining rights to a union where the employees have expressly denied interest in the union.

(iv) The Board reached incorrect findings of fact and, in any event, the facts as found do not support the issuance of sale of business or related employer declarations.

(v) The employer was prejudiced by the length of time it took the original vice-chair to issue the July 19, 1999 decision. Under this heading, a number of further grounds are set out:

(a) The original vice-chair failed to make mention of the fact that a certification vote had been held during the period of time between the end of the hearing and the issuance of the decision.

(b) Given the length of delay, the original vice-chair could not have recalled the evidence with sufficient clarity to make determinations with respect to credibility.

(c) As a result of the certification vote, the employer believed the issue of the union’s representation had been conclusively dealt with and it went about structuring its affairs on the assumption that it was non-union. Urban made a number of investments and expenditures that it would not have made had it known the issue of the union’s bargaining rights remained alive.

13The initial request asks that the application be dismissed or a new hearing be held before a different panel of the Board.

14Local 353 was asked to respond to the initial request and did so. By decision dated January 6, 2000, the original vice-chair denied the initial request. The decision sets out the basis on which the Board will typically reconsider a decision and the grounds for reconsideration set out in the request. The vice-chair then dismissed the request for reconsideration as follows:

3. In support of its reconsideration request, Urban has raised a number of issues. It claims that the Board erred factually and legally when it concluded that there had been a sale of a business from Volta to Urban and when it determined that these two entities constituted one employer for purposes of the Act. Urban referred to an application for certification filed on July 18, 1997, by Local 353 against Urban in which two-thirds of the employees voted against Local 353 (the count occurred in October, 1997). Local 353 noted that the decision dismissing the certification application was not issued until October 6, 1999. Urban argues that the vote against Local 353, which occurred after the hearing of the sections 69 and 1(4) application, but before the decision was released, should have been considered and should have caused the Board to dismiss the application. Finally, Urban argues that the delay in rendering the decision has prejudiced Urban. Urban has requested that the application in Board File No 3051-95-R be dismissed or, alternatively, that a new hearing be held before a new panel of the Board. The Board notes that the counsel representing Urban in its reconsideration request is not the same counsel who represented Urban during the sections 69 and 1(4) proceeding and the application for certification. The Board will briefly address the issues raised by Urban.

4. The assertions that the Board made incorrect factual determinations and that it applied legal principles erroneously to the facts is merely an attempt to re-argue the evidence and the law which were at issue during the hearing on the merits. The experienced labour relations counsel who represented Urban at the hearing made extensive and complete submissions on the factual and legal issues before the Board. Indeed, the submissions made in the request for reconsideration with respect to the evidence before the Board at the hearing and the appropriate legal principles were made at the hearing.

5. Urban suggests that the delay in issuing the decision would have made it difficult for the Vice-Chair to recall the oral testimony and other aspects of the evidence, thereby prejudicing Urban. There is no basis for this speculation and the suggestion is simply incorrect. With the benefit of detailed notes, the exhibits and a firm recollection of the case, the Vice-Chair had no difficulty in fairly dealing with the evidentiary and legal issues presented by this case. The serious inconsistencies in the evidence of Phil and Josie Bartuccio and the improbability of their factual assertions stand out as clearly now as they did at the hearing.

6. In its submissions, Urban places considerable reliance on the results of the certification vote which was made available to the parties in October 1997. From a number of perspectives, Urban now argues that the certification vote has some relevance to the application under sections 69 and 1(4) and that it should cause the Board to dismiss the application. The Board will comment on the timing of this submission and the merits of it.

7. Urban notes that the same Vice-Chair who decided the sections 69 and 1(4) application issued the administrative decision directing a vote in the certification application. Subsequent to that decision, I can recall no further involvement with that proceeding and I certainly was not advised of the results of the vote. At no time prior to the request for reconsideration did Urban take the position that the certification vote should have an impact on the sections 69 and 1(4) proceeding. The submissions that are being made now could easily have been made within a reasonable time after the vote result was announced. Urban has offered no explanation for why it did not raise this issue in a timely way or at least before the decision in the sections 69 and 1(4) proceeding was issued. The failure to raise the issue in a timely fashion is, by itself, fatal to the position advanced by Urban.

8. In any event, Urban’s assertion that there is a relationship between the application under sections 69 and 1(4) and the subsequent certification application is not sustainable. The Act permits applicants to take advantage of the two types of proceedings, each of which raise different issues. Although the wishes of the employees are paramount in a certification application, this is not the case in an application under sections 69 and 1(4) of the Act. The statutory purposes of sections 69 and 1(4) would be undermined if the wishes of the current employees were determinative. The Board notes that employees are given notice of a sections 69 and 1(4) proceeding. In this case, no employee of Urban elected to appear at the hearing. It would be inconsistent with the purpose of the statutory provisions to deny Local 353 the relief it was entitled to under sections 69 and 1(4) of the Act merely because employees did not vote for Local 353 in a subsequent application for certification.

9. Urban also asserts that it is been seriously prejudiced by the delay in the release of the decision and that this should result in the dismissal of the sections 69 and 1(4) application. This delay was certainly unfortunate and since the reasons for the delay are irrelevant, I will not set them out here, including those which arose subsequent to my tenure at the Board coming to an end. Urban asserts that the prejudice occurred subsequent to the announcement of the result of the vote in the certification matter because it then believed that the issue of representation by the union was over and, therefore, it conducted its business affairs accordingly.

10. Quite frankly, it is difficult to accept that Urban would have believed that the issue of union representation was over in October 1997. If it did have such a belief, it was certainly an unreasonable belief given the circumstances. Urban was involved in two proceedings, either of which could have implications with respect to union representation. The counting of the ballots in a certification proceeding clearly did not terminate the sections 69 and 1(4) proceeding. Neither the Board nor the union conveyed to Urban at any time that a decision would not issue in the sections 69 and 1(4) proceeding. It would have been unreasonable for Urban to make its business decisions after the certification vote was announced without recognizing that the decision in the sections 69 and 1(4) matter was still forthcoming and that the decision may not be in Urban’s favour. Any prejudice that Urban may have experienced is as a result of its own doing and it does not constitute a basis for reconsidering the July 19, 1999 decision.

11. For the foregoing reasons, the application for reconsideration is dismissed.

15On February 2, 2000, Urban filed a second request for reconsideration of the Board’s July 19, 1999 decision. The February 2, 2000 request for reconsideration will be referred to in this decision as the “second request”. The second request takes issue with the basis on which the first request for reconsideration was denied. In addition, the second request asserts that the original vice-chair should not have taken carriage of the initial request as the fact that he was responsible for the delay in the issuance of the July 19, 1999 decision created a conflict. The second request asks that the application be dismissed, that the request for reconsideration be heard by a new panel of the Board, or the matter be scheduled for a hearing de novo.

16By decision dated August 14, 2000, the original vice-chair indicated that he felt it appropriate for a current vice-chair of the Board, and not himself, to deal with the reconsideration request.

17The Chair of the Board exercised his power pursuant to section 110(14) of the Act and authorized me to sit alone to hear and determine the request for reconsideration of the July 19, 1999 decision. A hearing was held on September 12, 2000 for the purpose of hearing submissions with respect to the reconsideration request. Following the conclusion of the hearing, Mr. Ajamian, an employee of Urban who had earlier expressed an interest in seeking reconsideration of a Board decision, but, because he did not identify his interest as relating to the Board’s July 19, 1999 decision was not given notice of the September 12, 2000 hearing, was given full opportunity to file submissions with the Board. Submissions dated September 26, 2000 were filed on behalf of Mr. Ajamian. Local 353 and Urban both responded by submissions dated October 2, 2000. Mr. Ajamian filed reply submissions dated October 5, 2000.

Some Further Background

(i) Certification Applications

18The commencement of certification applications are governed by section 7 of the Act. Section 7(1) of the Act provides as follows:

7. (1) Where no trade union has been certified as bargaining agent of the employees of an employer in a unit that a trade union claims to be appropriate for collective bargaining and the employees in the unit are not bound by a collective agreement, a trade union may apply at any time to the Board for certification as bargaining agent of the employees in the unit.

19Section 7(1) specifies that an application for certification can be filed by a trade union that has not already been certified provided that there is no collective agreement in effect. Where there is a collective agreement in effect, subsection 7(4) stipulates “open periods” during which an application for certification can be filed.

20When a certification application is brought outside of an open period, the existing collective agreement is said to be a “bar” to the application. If the existence of a collective agreement is in dispute between the parties a representation vote will be held and the ballot box sealed until such time as the issue is determined. The fact that an issue exists as to the existence of a collective agreement would be noted in the Board’s decision directing the taking of a representation vote. If it is subsequently determined that there was in fact a collective agreement in effect, and the application was not brought during the open period, the application will be dismissed on the basis that it was not brought in a timely manner. If the existence of a collective agreement is not brought to the Board’s attention, the representation vote will be held and, provided there are no other issues in dispute, the ballots would be counted and the application granted or dismissed. Section 7 does not provide that the filing of an application for certification at a point in time when there is a collective agreement in effect has any impact on any matter outside of the application for certification. Nowhere does it say that the effect of bringing an untimely certification application is to nullify the existing collective agreement and extinguish the trade union’s bargaining rights.

21The application for certification form asks the applicant if there is a collective agreement in effect. The response form likewise asks the responding party if there is a collective agreement in effect. The Board has no means of knowing whether or not there is a collective agreement in effect absent one of the parties informing it.

22Applications for certification are processed by Case Processing Assistants at the Board and then forwarded to which ever vice-chair, at the relevant time, is serving as what is known as the “vice-chair of the week”. Amongst the numerous tasks performed by the vice-chair of the week (together with the Board Members) is the issuance of vote decisions. It is impossible to calculate the number of files the vice-chair of the week would deal with in the course of a day, however, the number is considerable. When it comes to applications for certification, the vice-chair reviews the file to see if there are any issues raised in the pleadings that would prevent the conduct of a vote. Such issues are very rare. In the normal course, where issues are raised, the issues are noted in the Board’s decision directing the vote and the ballot box is sealed pending determination of the issues. The Board does not cross-reference a certification application with all other files that have been dealt with or are pending at the Board. The certification procedure established by the Act requires a vote to be held within five days. Such would not be possible if the Board was to cross-reference every new application with the tens if not hundreds of thousands of files the Board has processed. Further, the forms the parties are required to complete elicit the information that the Board needs in order to direct a vote. If both parties choose not to inform the Board of a fact, the Board cannot assume responsibility for engaging in a fact-finding mission to prove the parties wrong.

(ii) Sale of Business Applications

23Section 64 (now section 69) and subsection 1(4) have been in the Act for a number of decades. They have been the subject of considerable discussion and consideration by the Board. The following quote from Aircraft Metal Specialists Limited, [1970] OLRB Rep. Sept. 702 is oft cited as setting out the purposes of the sale of business provisions of the Act:

5. … The purpose of section 47a [now section 69] becomes important in assessing the various fact situations that arise. Section 47a operates on a number of levels. The first level of course is to prevent the subversion of bargaining rights by transactions which are designed to get rid of the union. We have encountered situations where there are transactions between various corporate entities which are in effect “paper transactions”, and are a form of corporate charade engaged in for the purpose of eliminating the trade union. In this type of case the Board has liberally interpreted section 47a to preserve the bargaining rights and has attempted to look beyond “paper transactions” to achieve that purpose. See E.G. Kem’s Masonry, November 1964, OLRB, Mthly. Rep., 382 and Trenton Riverside Dairy, September 1964 (Unreported).

6. A further and important purpose of section 47a is to preserve the bargaining rights with respect to work which has accrued to the benefit of the employees as a result of their union becoming the bargaining agent through certification or voluntary recognition. Once the union had been recognized with respect to a particular business the union then obtains a right to bargain with respect to wages, hours and other conditions of employment in that business. The right to participate in the business and its functions in that manner is in the nature of a vested right and section 47a allows the union to pursue that bargaining right when all or part of the business is sold. In making determinations under section 47a therefore, the Board is interested in maintaining the bargaining rights where the sale involves a continuum of the business.

As the foregoing quote aptly states, the purpose of the sale of business provisions is to preserve bargaining rights where the business to which the bargaining rights are attached is transferred or sold. To state the proposition in the reverse, the purpose is to prevent bargaining rights from being eliminated simply because the business to which they are attached is transferred or sold. The operation of the section does not require that the business was transferred or sold in an effort to avoid bargaining rights, however, it is recognized that one purpose of the sale of business provisions is to redress the situation where the corporate shell has been changed in an effort to avoid bargaining rights.

24The sale of business provisions provide that, upon a sale, the purchaser of the business is automatically bound to any collective agreement to which the vendor was a party, until the Board declares otherwise. Thus, although unions are, in the vast majority of cases, the applicant in a sale of business application, they do not require a Board declaration in order to have bargaining rights. A trade union’s bargaining rights automatically transfer upon the sale. By way of a sale of business application, trade unions are seeking a Board decision requiring the purchaser of the business to recognize the union’s bargaining rights. The sale of business provisions of the Act do not grant the Board any discretion. Once the Board finds on the facts that a sale of business has occurred, the required result is that the Board must confirm the trade union’s bargaining rights.

25Businesses in the construction industry are quite often small operations with little if any assets. The vast majority of construction industry businesses are started up and operated by one person who assumes responsibility for estimating and quoting jobs, obtaining business and running the jobs. Such individual hires a small number of skilled individuals to perform the actual hands on work and may perform the work him or herself. Quite often the business fails or succeeds depending on the skill and ability of the owner/operator. There is rarely much in the way of physical assets. A small construction company can be operated out of someone’s home or car. The equipment needed to perform the work can be rented or may simply be quite minimal. As a result, when dealing with such small construction entities, the Board has, on occasion, determined that the “business”, ie. the pulse of the entity and what makes it operational, is the owner operator of the business. In such cases, the owner operator is referred to as the “key person”. The movement of such key person from one corporate shell to another corporate shell, especially where the two corporate entities are quite small and depend on that same person to create business, has been found to amount to a transfer of a business within the sale of business provisions of the Act (see: Gallant Painting, [1991] OLRB Rep. Sept. 1051).

(iii) Related Employer Applications

26Section 1(4) of the Act was introduced in 1971. Its purpose was considered and articulated by the present Chair of the Board in the case of Brant Erecting and Hoisting, [1980] OLRB Rep. July 945. The following quote from Brant Erecting and Hoisting has been oft adopted in Board decisions:

12. … Section 1(4) was enacted in 1971 and deals with situations where the economic activity giving rise to employment or collective bargaining relationships regulated by the Act, is carried out by, or through more than one legal entity. Where such legal entities carry on related business activities under common control or direction, the Board is empowered to pierce the corporate veil. Section 1(4) ensures that the institutional rights of a trade union, and the contractual rights of its members, will attach to a definable commercial activity, rather than the legal vehicle(s) through which that activity is carried on. Legal form is not permitted to dictate or fragment a collective bargaining structure; nor will alterations in legal form undermine established bargaining rights. In this respect the purpose of section 1(4) is similar to that of section 55 [now section 69] which preserves the established bargaining rights and collective agreement when a “business” is transferred from one employer to another. Section 55 has been part of the scheme of the Act since the mid 1960’s. Neither remedial provision requires a finding of anti-union animus; their primary application is to bona fide business transactions which incidentally undermine or frustrate established statutory rights. Since the two sections are complementary, it is not unusual, as in the present case, for an applicant to rely on both.

13. Section 1(4) does not require that related business activities under common control or direction be carried on simultaneously or contemporaneously. This issue was clarified in 1975 by the addition to section 1(4) of the phrase “whether or not simultaneously”. The amendment reflects a legislative recognition that the essential unity and identity of an economic activity (which gives rise to employment) may be preserved even though the legal vehicles through which the activity is carried on will not operate simultaneously; and, business may be effectively transferred from one corporate entity to another, without any of the indicia of a “transfer of a business” which might trigger the application of section 55. This is especially the case in the construction industry where many of the employers not will have the permanence or investment in fixed plant and equipment characteristic of a manufacturing concern. A small construction company can move from jobsite to jobsite or place to place, assembling tools, equipment and a labour force as required after it has made a successful bid. There may be no established economic organization, labour force or configuration of assets. A single principal may have several companies which are used, more or less interchangeably, so that bidding is done and work performed through whichever company is convenient. In such circumstances there may be an effective transfer of business between related businesses without any apparent disposition of assets, inventory, trade names, goodwill, employees, etc. Similarly, where capital requirements are minimal and business relationships transitory, it is relatively easy to wind up one business, and create another one which carries on essentially the same business as before. Indeed there will often be good commercial reasons for doing so unrelated to any express desire to undermine the union’s bargaining rights. The earlier company may have run into financial difficulties, or lost its reputation, or there may be legal, accounting or tax advantages in establishing a new vehicle through which the business, or related business activities can be conducted. Again, it is quite possible to do this without a clear and concrete disposition between the two firms so as to call section 55 into play. To ensure that the industrial relations status quo is preserved, the Legislature has provided that where two employers carry on related economic activities, under common control and direction, whether or not simultaneously, they can be treated as one for the purposes of the Act. However, it should be noted that section 1(4) is discretionary. The Board need not make a 1(4) declaration even when the conditions precedent are present; and has not done so, for example, where a trade union is seeking to extend rather than preserve its bargaining rights.

27There are three preconditions to the issuance of a related employer declaration. There must be more than one entity. The entities must be associated or related. The entities must be under common direction or control. If all of the preconditions are met, the Board then has a discretion as to whether it will make a related employer declaration and, if it does, to what extent. As indicated in Brant Erecting and Hoisting, the Board will exercise its discretion and grant the declaration to preserve bargaining rights but will decline to issue a declaration where the effect of doing so is to extend bargaining rights. There have also been occasions on which the Board has issued the declaration but made it effective as of particular date (see: KNK Limited, [1991] OLRB Rep. Feb. 209) and occasions on which the Board has limited the scope of the declaration to some of the activities engaged in by the entities (see: Widcor Limited, [1989] OLRB Rep. Jan. 66).

28The Board has indicated that the wishes of the individuals employed at the time of the application, or the prejudice that they will suffer if the related employer declaration is made, is not, in the normal course, a factor that will influence the Board’s exercise of its discretion. The reason is quite simple. One of the purposes of section 1(4) of the Act is to prevent a trade union’s bargaining rights from being nullified by an employer who simply changes form. If an employer could change form and immediately hire individuals who do not wish to be represented by the union, and the wishes of the employees was determinative of how the Board would exercise its discretion, the purpose of section 1(4) would be completely undermined. In addition, if the employer had been applying the terms of the collective agreement, the individuals who were employed by the employer would have had to be union members and thus, would quite likely not have been the individuals who were in fact employed. To canvass the wishes of people who were employed because the employer did not apply the terms of the collective agreement, in circumstances where all other factors suggest that it should have been applied, has been viewed by the Board as not appropriate.

29In the Great Atlantic and Pacific Company of Canada Limited, [1981] OLRB Rep. March 285, the Board addressed the issue as follows:

15. We have considered the respondents' arguments with respect to "foisting" a union upon a group of employees who may not wish to be represented; however, we do not think that the wishes of the employees are the only, or even the predominant, factor to be considered in a section 1(4) application. If such were the case, the very erosion of bargaining rights which triggered the proceeding, (and which section 1(4) was designed to cure) could be raised as a bar. It is entirely typical that the employees of a related company will not be union members, for it is the creation of job opportunities ostensibly beyond the scope of the collective agreement, which constitutes the "erosion" of the union's bargaining rights. But for the creation of a separate vehicle, the work opportunities associated with the related business activity, and the conditions of employment of the employees engaged in that activity, would be regulated by the collective agreement. The very purpose of section 1(4) is to ensure that the union's bargaining rights and the scope of the collective agreement will not be restricted simply because an employer chooses to expand through a new corporate vehicle rather than its existing one.

The Board’s comments in Great Atlantic and Pacific Company of Canada Limited were adopted and applied in KNK Limited, supra at paragraph 38.

(iv) Parallel Certification and Sale of Business and/or Related Employer Applications

30The Board has had very limited occasion to comment on the situation where a trade union pursues bargaining rights by way of both a certification application and a sale of business and/or related employer application. In the case of Magnum Glass Inc., [1996] OLRB Rep. Feb. 95, the Board determined that it was not inappropriate for a trade union to pursue both applications at the same time:

12. It is my view that no bar should apply in respect of the section 69/1(4) application. The trade union has made applications, at different times, for both certification and relief under sections 69/1(4). These two avenues or applications are not mutually exclusive. The section 1(4)/69 process is in effect a forensic review of facts which may or may not lead to a remedy that preserves existing bargaining rights. The certification application engages a process to acquire bargaining rights. The two types of applications rest upon different functions and claim different remedial relief, but it is not at all apparent why applicants cannot seek to make either, or both.

13. While it may well be that the applicant could not have been successful in both (unless the 1(4) application seeks to preserve bargaining rights acquired for the first time through the certification itself), a union is not required to abandon one alternative approach in order to bring the other. The Act itself contemplates alternative procedures in respect of allowing a trade union to proceed by certification application or by section 69/1(4) applications or both. Had the legislature wanted to curtail an applicant's right to apply in the alternative they would have done so clearly in the statute. Counsel for the responding parties conceded that, had the union in its application for certification simply reserved its right to bring a section 69/1(4) application; in the alternative, there would be no issue that the trade union was entitled to commence both types of applications. We see little merit in holding that the applicant is precluded from asserting a right or claiming a remedy only because it did not use words in filing the applications that indicated that they were based upon alternative positions.

(v) Delay in the Issuance of Decisions

31A phrase oft quoted by the Board is the expression “labour relations delayed is labour relations denied”. It is imperative, given the exigencies of the workplace, that labour relations issues be resolved in a timely manner. To do otherwise can result in the defeat of the very rights the Labour Relations Act seeks to afford.

32This matter was filed on November 14, 1995. It came on for hearing on May 8, 1996 following which the Board issued a decision in which named individuals were directed to attend on June 18, 1996 to give evidence and produce documentation relevant to the issues in dispute. The hearing of the related employer application was completed over the course of four hearing days in June, 1996. The Board’s decision did not issue until July 19, 1999, a full three years after the completion of the hearing.

33The vice-chair that issued the July 19, 1999 decision is no longer with the Board. I have no knowledge as to why the issuance of the July 19, 1999 decision was delayed. In his January 6, 2000 decision denying the initial request, the original vice-chair wrote as follows:

This delay [in the release of the decision] was certainly unfortunate and since the reasons for the delay are irrelevant, I will not set them out here, including those which arose subsequent to my tenure at the Board coming to an end.

34A three year delay in the release of a decision, absent a compelling explanation, is completely unreasonable. In this case, no explanation for the delay has been offered. The community has a right to expect the issuance of decisions from this Board in a far more timely manner than that demonstrated in this case.

35As indicated above, the Board’s records indicate that Local 353 wrote to the Board on five separate occasions during the period of January, 1997 through to May, 1999 asking for the Board’s decision. Unfortunately, there is no apparent means for the Board (or the Chair of the Board) to force a seized panel of the Board to issue a decision in a timely manner. Neither the Labour Relations Act, nor the Statutory Powers and Procedures Act, addresses the situation. The one possible avenue, the obtaining of a remedy in the nature of mandamus from the Courts requiring the original vice-chair to issue a decision, was not pursued by either party.

36The issue of whether a one-year delay in the issuance of a decision, in circumstances where the collective agreement required the arbitrator to issue a decision within 30 days, resulted in a loss of jurisdiction, was considered by the Supreme Court of Canada in the case of Air-Care Ltd. v. United Steelworkers of America et. al. (1977), 1974 CanLII 200 (SCC), 49 D.L.R. (3d) 467. The Supreme Court of Canada indicated at page 471 that it viewed the argument as to loss of jurisdiction to be “without merit” on the basis that “[t]he right of a party should not be lost or in any way prejudiced as the result of dilatory conduct on the part of a board over which it has little or no control.” In the case of Re Metropolitan Toronto Board of Police Commissioners and Metropolitan Toronto Police Association (Unit B) et. al. (1973) 1973 CanLII 677 (ON HCJDC), 37 D.L.R. (3d) 487, the Ontario Divisional Court considered whether the decision of a board of arbitration ought to be quashed on the basis that it had not been delivered within 60 days of the commencement of the arbitration proceedings as required by the Police Act. The Court expressed a view similar to that of the Supreme Court of Canada in Air-Care Ltd. at pages 489 – 490 as follows:

….. In the instant case the duty imposed by the statute is a public one. Also, the parties to the proceedings have no control over the board and any difficulty that has arisen is not as a result of any default on their part. In particular they have no direct control over the time in which the award is to be delivered. That is the responsibility of the board. If it were held that the failure to observe the time-limit made the award a nullity, the purposes of the Act might be completely frustrated by events over which the parties have no control. One would be hesitant to attribute such an intention to the Legislature in the absence of explicit and compelling words.

37In Northern and Central Gas Corporation Limited, [1988] OLRB Rep. Jan. 70, the Board considered a request for reconsideration premised on the ground that a 14 month delay between the close of the hearing and the issuance of the Board’s decision (in which individuals in dispute were found to be employees and a certificate issued to the trade union) raised a reasonable expectation that the responding party would be successful. In the course of dismissing the request for reconsideration, the Board stated as follows:

…. Accepting that the delay of 14 months from close of proceedings to issuance of decision was an inordinate one, the question remains what, if any, effect should dilatory conduct on the part of the Board have upon exercise of the power to reconsider its decision. The respondent would have it that as celerity of process is axiomatic where the conferral of bargaining rights is at issue, its absence gives rise to a reasonable expectation on the part of those opposed that such rights will not be conferred by Board determination. Even if one were to accept the logic that delay in the grant of a certificate portends denial of entitlement to its issuance, the Board fails to comprehend why such delay should ground an application for reconsideration where such expectations were not realized in the decision ultimately handed down. Perhaps if there could be shown prejudice to the party adverse in interest occasioned by delay at the hands of the Board, the matter would be different. But such is not pleaded nor shown here and, indeed, it is difficult to envisage in the case of a fresh application for certification at an unorganized work place how delay in the issuance of a certificate could be prejudicial to the employer respondent with respect to which bargaining rights are being sought.

After referring to both the Air-Care Ltd. and Metropolitan Toronto Board of Police Commissioners decisions referred to above, the Board concluded as follows:

Thus, reliance on the vitality of the original decision is particularly great and to be disturbed only in the most unusual of circumstances. Such circumstances are not here present. Accordingly, the Board rejects the argument that delay occasioned by its own dilatory conduct suffices to ground exercise of its reconsideration power.

(vi) The Board’s Power to Reconsider Its Own Decisions

38Section 114 of the Act which grants the Board a very wide power to reconsider its own decisions is set out above. The Board’s jurisdiction to reconsider its decisions, and the circumstances in which it will exercise such jurisdiction was articulated in Northern and Central Gas Corporation Limited, supra, as follows:

3. … Although the jurisdiction of the Board to reconsider is a plenary one vesting the Board with a fulsome degree of flexibility to respond to exigencies of fact and circumstance which may militate against the continued governance of determinations earlier made, its exercise must be fitted to meet other competing values which inform the process of decision-making by any adjudicative tribunal. Principal among these are those of certainty and finality in decision-making and the resultant reliance on Board decisions which those values engender in persons subject to the Board’s process.

4. Thus, the Board early developed a jurisprudence, consistently applied from its first articulation to the present, which channels and directs its jurisdiction to reconsider decisions previously rendered to a circumscribed category of cases. In O.J. Pipelines Ltd., [1984] OLRB Rep. Dec. 1737, Vice-Chair Satterfield reviewed much of that jurisprudence at paras. 13 and following as follows:

5. …

The principles which guide the Board in the exercise of its reconsideration powers are described in the following terms in its decision in K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185:

4. To avoid abuse of the reconsideration provision and bring some finality to its adjudicated decisions the Board has adopted principles not unlike those of the courts. The Board will not normally accede to a request to reconsider unless the party requesting reconsideration intends to adduce new evidence which was not previously available to them by the exercise of due diligence, and then only where such additional evidence, if proved, would be likely to make a substantial difference to the outcome of the case. Reconsideration is therefore generally restricted to allowing a party to adduce evidence or make representations which it did not have a previous opportunity to raise. The Board may also consider such factors as the motives for the request for reconsideration in light of a party’s conduct, and the resulting prejudice to another party if the case is reopened. (see, generally, International Nickel Company of Canada, 63 CLLC 16,284; The Detroit River Construction Limited, 63 CLLC 16,260; National Steel Car Corporation Limited, [1966] OLRB Rep. Apr. 55; Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320; York University, [1976] OLRB Rep. Apr. 187 affirmed, sub. nom. Jordan v. Ontario Labour Relations Board, York University Avenue Faculty Association, York University, 78 CLLC 14,132 (Ont. Div. Ct.).

5. The Detroit River decision referred to in the quotation from K-Mart, supra, sets out the rationale behind the Board’s perception that there is, as it said in K-Mart, supra, a need to “… bring some finality to its adjudicated decisions …”:"

“ … While depending upon the circumstances of the case and the applicable principles of natural justice, the Board ought not to be as strict or as technical as a Court, it must nevertheless, in our view, recognize the necessity for and apply some principle of finality to its decision. It stands to reason that when a party has gone through the ordeal, expense and inconvenience of a hearing and obtained a decision in his favour, that he should not be deprived of the benefit of that decision except for good cause. … If it were otherwise, the door would be open in any given case to ceaseless and never-ending hearings each serving as a prelude to the next ad infinitum and no one could ever safely rely on any decision as finally settling the rights of the parties.”

The Board’s decision in Journal Publishing Company of Ottawa Ltd., [1977] OLRB Rep. Sept. 549, at paragraph 6 cited two main reasons for the requirement of finality:

… The first reason is to protect the interests of those who have relied upon the Board’s decision. The reliance interest is perhaps most important in those cases where the Board’s decision has the effect of conferring or withdrawing bargaining rights. In such cases, where representation rights are in issue, the need for certainty and finality becomes obvious. A second reason sic, and perhaps no less important, is to protect the integrity of the Board’s own processes. These processes must be protected from the parties who, under the guise of reconsideration, are merely seeking to repair, or reargue, a lost case.

15. The passage quoted from the Board’s K-Mart decision, supra, notes that, while reconsideration is usually restricted to allowing a party to adduce evidence or make representations which it did not have a change to raise previously, “… the Board may also consider such factors as the motives for the request for reconsideration in light of a party’s conduct, and the resulting prejudice to another party if the case is reopened.” Thus the usual grounds for reconsideration are not the only ground and in its decision in John Entwhistle Construction Ltd., [1979] OLRB Rep. Nov. 1096, the Board observed that it is important not to follow the usual grounds inflexibility:

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

39A request for reconsideration is not a hearing de novo and is not an appeal. It is not an opportunity for a party to reargue a case, raise new arguments or present new evidence. The power to reconsider is typically invoked by the Board solely to allow important policy issues to be addressed, evidence or law that would make a substantial difference to the case that was not previously available to be presented, or errors to be corrected.

Submissions In Support of the Request for Reconsideration

(i) Submissions by Urban

40Urban submits that the fundamental issue raised in the reconsideration request is fairness and reasonableness. Urban points to the fact that, following completion of the hearings with respect to the related employer application, Local 353 filed a certification application. A representation vote was held and two-thirds of the employees voted against the union, thereby expressing a strong, clear message that they do not wish to be represented by the trade union. Urban submits that, to grant the related employer application following such a clear expression of the employees’ wishes is contrary to the purposes of the Act which provide in part as follows:

2. The following are the purposes of the Act:

3. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees. [emphasis added]

41It is further suggested that section 7 of the Act stipulates that an application for certification can only be filed where there is no collective agreement in effect. Local 353 filed an application for certification in which it did not claim to already hold bargaining rights and should thus be held to have abandoned its bargaining rights.

42Urban points to the confusion and prejudice to the employees of Urban that Local 353’s conduct had. As a result of the posting of Board notices in the workplace, the employees of Urban were aware of the fact that Local 353 had filed the related employer application. Then, subsequently, as a result of the posting of further Board notices, the employees became aware that Local 353 was attempting to be certified as their bargaining representative. The Notices that were posted in the workplace advised employees that they would have the right to express their wishes as to whether or not they wished to be represented by Local 353 in a representation vote. Following the counting of the ballots, an officer’s work sheet would have been posted in the workplace informing the employees that Local 353 had lost the vote. Urban submits that given Local 353’s conduct, Urban’s employees reasonably thought that their wishes would determine whether or not they would be represented by Local 353. The effect of granting the related employer application in the face of the vote results is to tell the employees that we do not care about their true wishes.

43Urban submits that to allow the related employer application following the vote does not serve the purposes of section 69 or 1(4). It is asserted that the purpose of section 69 and 1(4) is to preserve bargaining rights. The employees have said that they do not want the union to represent them. The union gave up its bargaining rights when it applied to be certified. Thus, in Urban’s submission, there is nothing left to preserve.

44In his January 6, 2000 decision denying the initial request, the original vice-chair stated as follows:

It would be inconsistent with the purpose of the statutory provisions to deny Local 353 the relief it was entitled to under sections 69 and 1(4) of the Act merely because employees did not vote for Local 353 in a subsequent application for certification.

Urban suggests that this is not true. Local 353 lost any bargaining rights it may have had when it brought the application for certification and thus, at the time of the July 19, 1999 decision with respect to the related employer application, there was no relief Local 353 was entitled to.

45The second basis on which Urban argues for reconsideration of the July 19, 1999 decision is premised on the prejudice that has been occasioned by the delay in the issuance of the decision. Quoting from Urban’s initial request, its prejudice is stated as follows:

17. Urban has been prejudiced by expenditures and commitments it has made since the representation vote was held on July 28, 1997. Few, if any, of the following commitments would have been made had Urban known that it would be bidding henceforth as a union contractor, simply because of the practical reality that it would not be very competitive in that sector of the business in which it competes. What follows is an outline of the commitments that Urban has made and does not include the impact on work in progress or work that has been successfully bid and not yet commenced:

1. Urban purchased condominium units in Concord, Ontario, at a value of $375,000. Urban had previously been leasing property measuring 1,800 feet. The new facilities, needed for projects Urban had acquired since July 1997, totalled 4,000 feet.

2. Urban expanded its administrative staff from two part-time employees to two full-time employees based on the expansion of its business since July 1997.

3. Site trailers and a forklift truck were purchased, at a total of $25,000.

4. A new computer system and new furniture was bought, at a cost of $30,000.

5. Urban signed leases for five additional vehicles, each at a cost of $600/month, for a total $3,000/month.

6. Urban increased its complement of foremen from three (3) to seven (7) in response to the increased workload, and these employees each make $50,000/year.

7. Urban used to operate with between three to eight employees, with jobs valued at approximately $150,000 per project. Since the Board dismissed the Union’s application for certification, the volume of business has grown to include projects of up to $1.2 million annually, and Urban now employs between 16 and 30 employees.

8. Urban has undertaken further risk in the form of a line of credit of $275,000, based on the jobs it had arranged and anticipated on the basis that they could be done profitably, which is not possible if Urban be unionized.

9. Jobs already committed to, but not completed or started.

Urban submits that it has committed substantial resources on the understanding that it would be operating as non-union contractor within the sector of the industry in which it competes. As a result of the Board’s decision granting the Union representation rights, the projects Urban has acquired and anticipated that justified these expenditures and undertakings will in most cases become unfeasible. Urban submits that if it had received the Board’s decision in a more timely fashion it would not have made these expenditures or taken these risks. Urban therefore submits the extreme delay by the Board has resulted in significant prejudice to the company.

In addition to the prejudice set out above, Urban cites the fact that the potential damages in the related grievance referral exceed one million dollars. It is asserted that the damages will bankrupt this employer.

46In addition to the prejudice set out above, it is asserted that prejudice results from the “sham” vote that the employees were put through, the fact that the employees are left with the message that we do not care about their wishes and the fact that, in the course of the time it took the Board to write its decision, the employees lost an opportunity to consider filing an application decertifying the union. Further, it is asserted that implementing the Board’s July 19, 1999 decision will result in Urban’s employees losing their jobs (if Local 353 refuses to take them into membership) and Urban losing highly skilled employees, or their being forced to become members of a union that they do not want, in order to keep their jobs.

47Referring to the Board’s comments in Northern and Central Gas Corporation Limited, supra, Urban submits that, the type of prejudice the Board said was lacking in that case, is clearly present in this one.

48Thirdly, Urban submits that the considerable delay in the issuance of the decision had to have had an impact on the original vice-chair’s ability to properly consider the evidence. In Urban’s submission, it shakes the bounds of credibility to suggest that the original vice-chair could fairly make determinations with respect to credibility over three years after having heard the evidence.

49Urban further argues that there are no facts in the July 19, 1999 decision that would substantiate a sale of business declaration and only the thinnest of facts to support a single employer declaration.

50Finally, Urban argues that, at a minimum, any determination with respect to the grievance referral on the question of damages must take into account the delay. Urban submits that any wages earned by employees of Urban should be subtracted from the amount of damages awarded to Local 353.

51Urban submits that the only means to remedy the prejudice that has been caused to the employer and the employees is to dismiss the related employer application in its entirety. Alternatively, Urban requests that a hearing de novo be held before a new panel of the Board. In the event the Board does not dismiss the application or order a hearing de novo, Urban request that the Board consider its submissions with respect to damages and reserves the right to make further submissions on the issue of damages.

(ii) Submissions by Mr. Ajamian

52Mr. Ajamian submits that he and his fellow non-union employees are to be intermingled with Local 353 union members and asks the Board to exercise its discretion under section 69(6) to declare that Urban is no longer bound to the collective agreement.

53Mr. Ajamian further submits that, under section 69(8), the Board ought to take into account the results of the July 1997 representation vote and the wishes of the employees as expressed in the August 1999 letter to the Board and reconsider the July 19, 1999 decision so as to order a representation vote. In the course of exercising its discretion as to whether it will conduct a vote pursuant to section 69(8), it is submitted that the Board ought to further consider the union’s filing of an application for certification a year following completion of the hearings in the related employer application.

54It is submitted that the delay in the release of the Board’s July 19, 1999 decision is prima facie unreasonable. Mr. Ajamian and his fellow employees were prejudiced by the delay because they were denied the opportunity to file an application for the termination of Local 353’s bargaining rights in the spring of 1998.

55Mr. Ajamian submits that he did not make earlier submissions as to the application of sections 69(6) and 69(8) as he and his fellow employees believed the representation vote held in July 1997 settled the question of the union’s representation.

56It is submitted that the Board ought to order a representation vote to ascertain the wishes of the employees before the Board disposes of this application as to do so is in keeping with the majoritarian principles upon which the certification process is based.

Determination

57At the risk of being repetitive, it is imperative to keep in mind what this is and what it is not. This is a decision dealing with a request for reconsideration. This is not an appeal of a decision and it is not an opportunity to consider the matter afresh. It is not an opportunity to make new arguments that could have been made before. It is not disputed that the delay that occurred between the completion of the hearing and the issuance of the Board’s July 19, 1999 decision was grossly excessive. That, however, is not the question. The question is whether there is reason for the Board to reconsider the July 19, 1999 decision.

58The first argument advanced by Urban is that, having regard to the fact that the employees voted against being represented by Local 353, the purposes of the Act are not served by the making of a sale of business or single employer declaration. Urban further argues that the purposes of section 69 and/or subsection 1(4) are not served because, by filing the certification application, Local 353 abandoned its bargaining rights and hence, there were no bargaining rights left to be preserved.

59Urban’s first argument focuses on the fact that Local 353 filed an application for certification and lost the vote. The certification application was filed in July, 1997. The vote results were known in October, 1997. At no time prior to the issuance of the July 19, 1999 decision, did Urban write to the Board and submit that the filing of the application for certification or the results of the vote should be taken into consideration by the Board and cause the Board to dismiss the application. No such submissions were filed even though Local 353 wrote to the Board on four occasions, after the ballots were counted, asking for the Board’s decision in the related employer matter and copied the employer on such correspondence.

60Urban explains its failure to make such submissions on the basis that the vice-chair assigned to the related employer application issued the decision directing the representation vote in the certification application. While Urban may have had a basis for assuming that the original vice-chair was aware of the conduct of the vote, there is no basis for Urban to have assumed that the original vice-chair would have been aware of the vote results. When the decision dismissing the certification application issued in October 1999, it was not issued by the original vice-chair. Thus, as of October 1999, Urban could no longer reasonably assume that the original vice-chair was aware of the vote results. Notwithstanding such, Urban still failed to make any submissions to the Board as to the effect it now submits the certification application should have on the instant matter.

61Further, even if one accepts that the original vice-chair had all of the knowledge that Urban imputes to him, such does not relieve Urban of the obligation to make submissions to the Board setting out the post-hearing developments, and its submissions with respect to what effect such developments should have on the outcome of the case, in a timely manner. In the course of the hearings held with respect to the reconsideration request, the parties were agreed that the only Board case that directly considers the effect of parallel certification and related employer applications is the case of Magnum Glass Inc., referred to above. As the quoted extracts from the case indicate, the Board concluded in that matter that it was not inappropriate for a union to pursue both a certification application and a related employer application and that filing a certification application while a related employer application was pending, without having made reference to the fact that the union claimed that it already had bargaining rights in the certification application, did not amount to a representation by the union that it did not have bargaining rights. The Magnum Glass Inc. decision was decided by the Board in February, 1996. Thus, the state of the Board jurisprudence at the time the original vice-chair had the matter under consideration suggested that there was nothing inappropriate in what Local 353 had done. Given that the state of the Board’s jurisprudence clearly was not to the effect that the filing of a certification application after the filing of a related employer application automatically resulted in the dismissal of the related employer application, I am unable to comprehend Urban’s suggestion that there was no need for it to make submissions to the Board as to the effect the certification application ought to have on the outcome of the related employer application. Thus, even if the facts were within the knowledge of the original vice-chair, the significance that Urban submits such facts have could not have been.

62Further, it would have been highly unusual for the original vice-chair, absent a request from one of the parties and submissions from both of the parties, to have taken into account post-hearing events and drawn conclusions therefrom. I am simply not convinced that there was no need for Urban to make the submissions concerning the first argument being raised by Urban in a more timely manner.

63For the foregoing reasons, it is my view that Urban has not made its submissions with respect to the post-hearing events and what effect they should have in a timely manner. Such submissions should have been made in response to the certification application and following the counting of the ballots. Urban waited a year and 10 months to make its submissions. In the interests of expedition, I would not allow the argument to be raised on reconsideration.

64Urban’s first argument also fails on the basis that it has already been considered and rejected. Urban raised this argument in its initial reconsideration request. The original vice-chair fully considered the argument made by Urban and rejected it in his January 6, 2000 decision as follows:

6. In its submissions, Urban places considerable reliance on the results of the certification vote which was made available to the parties in October 1997. From a number of perspectives, Urban now argues that the certification vote has some relevance to the application under sections 69 and 1(4) and that it should cause the Board to dismiss the application. The Board will comment on the timing of this submission and the merits of it.

7. Urban notes that the same Vice-Chair who decided the sections 69 and 1(4) application issued the administrative decision directing a vote in the certification application. Subsequent to that decision, I can recall no further involvement with that proceeding and I certainly was not advised of the results of the vote. At no time prior to the request for reconsideration did Urban take the position that the certification vote should have an impact on the sections 69 and 1(4) proceeding. The submissions that are being made now could easily have been made within a reasonable time after the vote result was announced. Urban has offered no explanation for why it did not raise this issue in a timely way or at least before the decision in the sections 69 and 1(4) proceeding was issued. The failure to raise the issue in a timely fashion is, by itself, fatal to the position advanced by Urban.

8. In any event, Urban’s assertion that there is a relationship between the application under sections 69 and 1(4) and the subsequent certification application is not sustainable. The Act permits applicants to take advantage of the two types of proceedings, each of which raise different issues. Although the wishes of the employees are paramount in a certification application, this is not the case in an application under sections 69 and 1(4) of the Act. The statutory purposes of sections 69 and 1(4) would be undermined if the wishes of the current employees were determinative. The Board notes that employees are given notice of a sections 69 and 1(4) proceeding. In this case, no employee of Urban elected to appear at the hearing. It would be inconsistent with the purpose of the statutory provisions to deny Local 353 the relief it was entitled to under sections 69 and 1(4) of the Act merely because employees did not vote for Local 353 in a subsequent application for certification.

65Urban has already sought reconsideration on this very basis and was unsuccessful. In the interests of finality, Urban should not be permitted to seek reconsideration on the same basis more than once.

66In any event, it is my determination that, even if considered on its merits, Urban’s argument that the related employer application should be dismissed as to do otherwise is to ignore the purposes of the Act and the purposes of section 69 and/or subsection 1(4), must fail.

67The purposes of the Act are clear. One of the purposes of the Act refers to trade unions as being the freely-designated representatives of the employees. The Act does not, however, provide for a constant monitoring of employee wishes. To do so would not be in the interests of any of the workplace parties. An employer could no more run its business if a trade union acquired and lost bargaining rights on a frequent basis than a trade union could adequately represent employees. Rather, the Act provides for mechanisms by which bargaining rights are obtained and mechanisms by which they can be terminated. The acquisition and termination of bargaining rights can only occur at times specified in the Act. Between the acquisition of bargaining rights and a point in time when the employees can apply to terminate the trade union’s bargaining rights (or another trade union can apply to displace the existing bargaining representative), the complement of employees will obviously change. It is entirely likely (and in the construction industry a virtual certainty) that the workforce will undergo numerous changes both in terms of size and complement. The Act does not provide for the ongoing monitoring of the wishes of the employees. As a result, in the interests of workplace stability and efficiency, as well as effectiveness of employee representation, once a bargaining agent acquires bargaining rights, it maintains them throughout changes in the level of its support.

68Much has already been said in the Board’s jurisprudence about the relevance of the wishes of employees who have been hired by a related employer. The Chair of the Board aptly articulated why the wishes of such individuals are not given considerable weight in the course of the Board’s deliberations in the case of KNK Limited, quoted above. To consider the wishes of such individuals could in fact defeat the very purpose of subsection 1(4).

69I further do not accept that the filing of the application for certification absent any statement therein that it was being filed in the alternative to Local 353’s position that it already had bargaining rights, amounts to abandonment. Whether Local 353’s conduct amounts to an abandonment of its bargaining rights is a question that can be answered only after considering all of the facts. When one considers all of Local 353’s conduct in the instant matters, it is my view that the facts indicate that Local 353 did not consider its certification application to amount to an abandonment of its bargaining rights. Further, the facts indicate that the employer was aware of the fact that Local 353 did not consider its certification application to amount to an abandonment of either its bargaining rights or its application in the related employer matter.

70Hearings with respect to the related employer matter were held in June, 1996. On January 24, 1997, the union wrote to the Board, copying the employer, asking for the Board’s decision. The certification application was filed on July 18, 1997. The ballots were counted in October, 1997. In December, 1997 the union once again wrote to the Board, copying the employer, looking for the Board’s decision. Further letters were sent in April and August 1998 and May 1999. The certification application was dismissed in October 1999. Thus, Local 353 continuously asserted its position, before, during and after its certification application, that it had bargaining rights by virtue of a sale of business or related employer application and made that position known to Urban. Given all of Local 353’s conduct, of which the employer was made aware, I am unable to conclude that the filing of the certification application amounted to an abandonment of bargaining rights.

71There is a further reason why Urban’s first argument cannot succeed on its merits. Section 69 is a mandatory provision. The Board has no discretion as to whether it will or will not make a sale of business declaration. Once it has been determined on the facts that a sale of business has occurred, the Board must make the declaration. The facts resulting in the sale of business declaration in the instant matter occurred well before the filing of the certification application or the related employer application. A sale of a business occurs immediately upon the sale or transfer. Section 69 provides that the purchaser of a business is bound to the applicable collective agreement “until the Board declares otherwise”. Thus, the effect of section 69 is to make the collective agreement immediately binding on the purchaser of the business. A later Board declaration is simply confirmatory of an event that has already occurred by operation of statute. I will have more to say about section 69 below in the course of considering Mr. Ajamian’s submissions.

72I turn then to the second argument advanced by Urban. Urban suggests that the matter ought to be dismissed having regard to the prejudice that it will otherwise suffer.

73The prejudice asserted by Urban is real. It made business decisions and spent money following the counting of the ballots in the certification application on the assumption that the issue of Local 353’s bargaining rights had been conclusively determined.

74I am not, however, persuaded that Urban’s assumption was a reasonable one. I will not reiterate the facts as they are set out immediately above in the context of my consideration of Urban’s first argument. Having considered the chronology of events, I concur with the comments of the original vice-chair made in response to this argument in the context of the initial request as follows:

10. Quite frankly, it is difficult to accept that Urban would have believed that the issue of union representation was over in October 1997. If it did have such a belief, it was certainly an unreasonable belief given the circumstances. Urban was involved in two proceedings, either of which could have implications with respect to union representation. The counting of the ballots in a certification proceeding clearly did not terminate the sections 69 and 1(4) proceeding. Neither the Board nor the union conveyed to Urban at any time that a decision would not issue in the sections 69 and 1(4) proceeding. It would have been unreasonable for Urban to make its business decisions after the certification vote was announced without recognizing that the decision in the sections 69 and 1(4) matter was still forthcoming and that the decision may not be in Urban’s favour. Any prejudice that Urban may have experienced is as a result of its own doing and it does not constitute a basis for reconsidering the July 19, 1999 decision.

75Urban was aware at the time it made its decisions that the related employer application had not been conclusively determined. Even if Urban believed that the certification application was determinative of the issue of Local 353’s bargaining rights, it would have been prudent for them to write to the Board stating their position and asking that a Board decision issue confirming the dismissal of the related employer application. Urban did not do so. It proceeded in the absence of anything final having issued in the related employer application. Further, Urban proceeded in the face of correspondence, on which it was copied, from Local 353 to the Board, seeking the Board’s decision in the related employer application. Urban made decisions, in the face of information that suggested that the related employer application remained alive, that it now seeks to rely upon to have the Local 353’s bargaining rights terminated. In my view, it is not appropriate to permit Urban to point to its own conduct, at a point in time when it ought to have sought further clarification, to avoid Local 353’s bargaining rights.

76Further, as discussed above, the composition of workplaces changes over time. While the employees of Urban voted in July, 1997 against trade union representation, there is nothing guaranteeing that Local 353 will not be able to organize them at some future time. The bar preventing Local 353 from applying to represent employees of Urban arising out of its unsuccessful certification application has expired. If the Board was to dismiss the related employer application it is possible that Local 353 could launch a successful organizing campaign and win the right to represent the electricians working for Urban. The prejudice to Urban would be the same but would certainly not prevent the issuance of a certificate to the union. Thus, while it is true that applying the terms of the Provincial ICI Collective Agreement will prejudice Urban, it is not a prejudice that can be foreclosed or would be relevant were Local 353 to obtain bargaining rights by way of certification in the future. There is simply no way, or point in time, that an employer can be certain that its workforce will not be organized and that it will never be required to incur the resulting “prejudice”.

77The issue of the damages payable to the Union and the fact that the delay in the issuance of the original vice-chair’s determination is another matter. As a result of the three years it took the original vice-chair to issue his decision, the amount of damages that Urban is now potentially liable for, exceed one million dollars. There is very little an employer can do pending the outcome of a related employer application to avoid damages. Thus, in addition to the usual exigencies of the workplace that demand prompt Board determinations, the fact that the employer is facing ever increasing potential damages, suggests that expeditious determinations are required.

78The argument is that the damages presently faced by Urban should cause the Board to dismiss the application. I am not persuaded that such is the appropriate response. To do so would mean that the union loses its rights as a result of conduct completely out of its control. As the Supreme Court of Canada commented in Air-Care Ltd., supra, the rights of a party should not be detrimentally affected by the dilatory conduct of the Board. While the Board in Northern and Central Gas Corporation Limited, supra, indicated that if prejudice occasioned by the delay could be shown the Board may have reconsidered its decision, in the present matter, for the reasons expressed above, I am not persuaded that the prejudice asserted by Urban should cause the Board to reconsider the July 19, 1999 decision.

79I am confirmed in my view by the fact that there is a mechanism available to the Board whereby the union’s bargaining rights can be maintained and Urban’s monetary liability erased. Section 133 of the Act gives the Board a fairly wide discretion in the handling of grievance referrals. The Board can, pursuant to section 133(4) of the Act simply refuse to accept a grievance referral. In the present case, the Board may very well be inclined to use the discretion it has so as to refuse to award the astronomical damages that have potentially accumulated as a result of the original vice-chair’s delay. While there are a variety of ways such might be accomplished, the Board could decline to accept the existing grievance referrals unless the referrals are amended so as to delete any request for monetary damages. Thus, the prejudice to Urban, which is directly caused by the Board’s delay, can be erased without the need to unjustly impinge on the rights of Local 353.

80Urban’s third argument is that the matter should be reheard on the basis that it would have been impossible for the original vice-chair to make determinations of credibility over three years after hearing the evidence. This argument was raised by Urban in its initial request and answered by the original vice-chair in the following manner:

5. Urban suggests that the delay in issuing the decision would have made it difficult for the Vice-Chair to recall the oral testimony and other aspects of the evidence, thereby prejudicing Urban. There is no basis for this speculation and the suggestion is simply incorrect. With the benefit of detailed notes, the exhibits and a firm recollection of the case, the Vice-Chair had no difficulty in fairly dealing with the evidentiary and legal issues presented by this case. The serious inconsistencies in the evidence of Phil and Josie Bartuccio and the improbability of their factual assertions stand out as clearly now as they did at the hearing.

81The reasons for the original vice-chair’s determination are set out in his July 19, 1999 decision. It is apparent that the vice-chair’s findings of credibility were not based on his assessment of the witnesses demeanour, something that may not be reflected in an adjudicator’s notes and may be forgotten over the passage of time, but rather, were based on what was reasonable and/or probable in the circumstances. There is no reason to doubt that the original vice-chair’s notes accurately summarized the evidence that was given by the witnesses. The vice-chair’s notes would be as accurate three years after the hearing as they were immediately following the hearing. The vice-chair, based on the evidence as recorded in his notes, found evidence given by the witness not to be probable and thus not credible. On the basis of the evidence he make conclusions as to what was in fact probable and drew findings of fact therefrom. Having regard to the basis on which the original vice-chair made his findings of credibility, I am not persuaded that the original vice-chair could not make the determinations he did three years after the conclusion of the hearing.

82Urban further takes issue with the fact that the original vice-chair concluded that the facts as he found them were sufficient to support a finding of a sale of business and single employer declaration. The original vice-chair found a sale of business and declared Volta and Urban to be a single employer for the purposes of the Act, based on the factual determination that Phil Bartuccio was a key man with both entities. There is some support in the Board’s jurisprudence for the proposition that the movement of a key man from one business to another constitutes a sale of a business and will, in appropriate circumstances, cause the Board to declare them to be a single employer for the purposes of the Act (see: Gallant Painting and Widcor Limited, cited above). Urban did not provide any jurisprudence that would suggest that the facts as found by the original vice-chair clearly do not amount to a sale of business or warrant the granting of a single employer declaration. Based on the state of the Board’s jurisprudence as it currently exists, there is no basis on which to conclude that the original vice-chair’s determination should be reconsidered or that the matter ought to be reheard.

83Finally, Urban submits that the wages earned by employees of Urban ought to be deducted from any award of damages. Local 353 submits that this argument was not raised in any of the materials or either of the requests for reconsideration and accordingly the Board ought not to make a determination with respect to this issue in the context of the reconsideration request. Local 353 is correct that this matter was not raised in either of the requests for reconsideration. The question of how any damages owing to the Union are to be calculated is properly dealt with in the course of the hearings relating to the grievance referrals.

84I turn then to consider the submissions of Mr. Ajamian. Before considering the specifics of Mr. Ajamian’s submissions it is useful to reiterate some general propositions of fact and law.

85The facts as found by the original vice-chair indicate that Volta ceased operations when Urban commenced operations. No one, in any of the submissions made to me, disputes that such was the case. Thus, prior to the transfer of Volta’s business to Urban, Urban did not employ any employees. It would appear that at the time Volta ceased operations it employed only Phil Bartuccio and perhaps Pat Valerio. There is nothing before me to suggest that Mr. Valerio went to work for Urban. The individuals employed by Urban at the relevant times were not employed by Urban when the transfer occurred and have not and will not be intermingled with employees of Volta.

86As indicated above, absent intermingling of employees, the effect of section 69 is to make a successor of a business automatically bound to any collective agreement binding upon the predecessor of the business in a like bargaining unit. Where, at the time of the transfer, the successor already employs employees, automatically binding the successor employer to the collective agreement could result in previously non-union employees becoming automatically covered by a collective agreement or, where the successor’s employees are unionized, having two collective agreements apply to the same employees. To avoid such a result, section 69(6) provides the Board with means to rectify the situation. Section 69(6) specifically states that it applies where “the person intermingles the employees of one of the businesses with those of another of the businesses”. Thus, the application of section 69(6) requires the successor to have employed employees prior to the transfer, and for such employees to be intermingled with employees who had been employed by the predecessor.

87Section 69(6) gives the Board a number of powers where intermingling has occurred. The collective agreement can be nullified, bargaining units can be restructured, bargaining agents can be declared and certificates and collective agreements can be amended. Section 69(6) gives the Board the power, following intermingling, to sort out which trade union will represent which employees.

88Section 69(8) gives the Board a number of powers to assist it in the course of making its determinations. Amongst them is the power to hold a representation vote. Holding a representation vote may be useful to the Board if it determines that there ought to be one bargaining unit and it is necessary to determine which trade union will henceforth be the bargaining agent.

89Where a sale or transfer of all or part of a business takes place but there is no intermingling of employees, the Board has no discretion as to what follows. Section 69(2) stipulates that where an employer that is bound to a collective agreement sells his business, the person to whom the business is sold, is bound by the collective agreement as if the person had been a party thereto. The Board does not have the power to nullify the collective agreement, redefine bargaining units, change bargaining representatives or amend the collective agreement. Having regard to the extremely restricted scope of the Board’s powers under section 69 where there has been no intermingling of employees, there is no purpose to be served by the Board directing a representation vote.

90With the above outline of the facts and operation of section 69 in mind, it is apparent that the submissions of Mr. Ajamian cannot succeed. There was no intermingling of employees of Volta and Urban. Absent an intermingling of employees, the effect of the Board’s determination that there has been a transfer of business from Volta to Urban is to bind Urban to the collective agreement as if it was a party thereto. There is no purpose to be served by conducting a representation vote, or considering the results of the July 1997 vote or the wishes of the employees expressed in the August 1999 letter to the Board.

91There is a further reason not to consider the wishes of Urban’s employees. As discussed above, the Board has stated that it is, generally speaking, not appropriate to give weight to the wishes of individuals who, had the employer been applying the terms of the collective agreement, would not have been employed. In the present case, the original vice-chair concluded that Volta would have continued operating but for the existence of Local 353’s bargaining rights and that Urban was bound to Local 353’s collective agreement. Had Volta continued to operate or Urban applied the terms of the collective agreement, the individuals employed would be Local 353 members. It is simply not appropriate to allow the wishes of individuals hired in contravention of the terms of the collective agreement to defeat the union’s bargaining rights.

Conclusion

92For the reasons set out above, the requests for reconsideration of Urban and Mr. Ajamian are denied. It is my determination that the grounds for reconsideration do not warrant either reconsidering the Board’s July 19, 1999 decision or having the matter re-heard. While the Board’s delay in issuing its July 19, 1999 decision created a situation where Urban’s potential damages accumulated astronomically, the Board has the ability to exercise its discretion so as to refuse to accept a grievance referral seeking monetary damages or decline to award monetary damages so as to remedy such prejudice. The Board’s delay ought not to otherwise detrimentally impact on the rights of Local 353.

93The hearing with respect to the grievance referrals is scheduled to continue on October 12, 2000. Having regard to my comments in the foregoing paragraph, it is my view that the parties should meet with a labour relations officer prior to the commencement of the hearing on October 12, 2000 with a view to resolving all outstanding matters. I hereby refer Board File Nos. 3050-95-G and 2754-99-G to the Manager of Field Services for the assignment of a labour relations officer to meet with the parties on the morning of October 12, 2000.

“D. L. Gee”

for the Board