Ontario Labour Relations Board

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

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

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

DECISION OF THE BOARD; May 28, 2001

1. Board File No. 0833-99-R is an application under section 69 and 1(4) of the Labour Relations Act, 1995 (the “Act”) filed by the United Brotherhood of Carpenters and Joiners of America, Local 2486 (the “Union”).

2. Board File No. 0838-99-G is an application under section 133 of the Act.

3. By decision dated August 3, 2000 in Board File No 0833-99-R (the “Decision”), the Board found that the responding parties, MacIsaac Mining and Tunnelling Company (“MacIsaac”) and MacRanald Enterprises Inc. (“MacRanald”) (collectively referred to as the “Employer”) are carrying on associated or related activities under common control and direction. The Board further found that in the area of construction they should be treated as one employer for the purposes of the Act.

4. The Employer subsequently sought reconsideration of the Board’s Decision on various grounds including a new objection that the Union cannot represent the employees of MacRanald due to the operation of the Gaming Control Act, 1992 (the “GCA”). By decision dated December 21, 2000 (the “Reconsideration Decision”), the Board found it appropriate to defer making the declarations set out in paragraph 45 of its Decision until such time as the Union notified the Board that it had obtained any registration(s) required under the GCA in order to represent individuals employed in MacRanald’s facilities or, alternatively provided the Board with satisfactory confirmation from the Alcohol and Gaming Commission (“Commission”) that no registration is, in fact, required by it.

5. Subsequently, by letter dated March 21, 2001, the Union provided a letter from the Commission dated March 20, 2001 confirming that registration by the Union is not required. The Union further asked that the Board now make the declaration set out in paragraph 45 of its Decision that MacRanald is bound to the Provincial ICI Agreement as if it was a party thereto. In addition, the Union requested that this declaration be effective April 20, 1999, the date that MacRanald filed a notice of project for renovation and expansion of Sudbury Downs and commenced construction work at the site.

6. In response, by letter dated May 7, 2001, the Employer advised that it is responding to the decision of the Commission and requests that “… the decision regarding the possible declaration be postponed until a final ruling by the Commission”. It further submits that postponing the Board’s declaration will in no way prejudice the union, since “…MacRanald has no ongoing construction business, so that the Applicant’s members are not being denied any work opportunity”.

7. Having reviewed the parties’ submissions on this issue, the Board is not persuaded that it should postpone making the declarations set out in paragraph 45 of its Decision or postpone a hearing into the Union’s referral of a grievance in Board No. 0838-99-G any further. The Commission has determined that registration by the Union is not required and the Board will not await the outcome of a request for reconsideration of that determination. Accordingly, having found that MacIsaac and MacRanald are carrying on associated or related activities under common control or direction, we hereby declare that they are to be treated as one employer for the purposes of the Act and the Union’s bargaining rights as currently reflected in the Provincial ICI Agreement. We further declare that MacRanald is bound to the Provincial ICI Agreement with the Union as if it had been a party thereto.

8. In the present case, the Board further finds no compelling reasons to limit the retrospective effect of the declarations. Contrary to the Employer’s submission, the date the responding parties received notice of the application is not “the standard date for making the declaration”. Instead, the Board will not normally limit the retrospective effect of a declaration unless there are compelling reasons to do so as, for example, where there has been a substantial delay by the union in pursuing its application to the Board. (See for example, J.D.S. Investments Limited [1981] OLRB Rep March 294; The Great Atlantic & Pacific Company of Canada Limited, [1981] OLRB Rep. March 285; KNK Ltd., [1991] OLRB Rep. Feb. 209)

9. Accordingly, in the present case, the declarations have force and effect from the time the associated or related activities or businesses commenced. As the Board noted in its Decision at paragraph 31, those related or associated activities commenced when MacRanald engaged in construction activities as general contractor of the Sudbury Downs renovation project:

10. The construction work performed by both entities [MacRanald and MacIsaac] on the Renovation Project was of the same character, used similar employee skills and was performed for the benefit of the same principal, Mr. Patrick MacIsaac. The evidence is that MacRanald, operating as its own general contractor, contracted out some of the construction work on the Renovation Project, including some carpentry work, to MacIsaac Mining and Tunneling and also contracted out a portion of the construction work, including some carpentry work, to other contractors. MacRanald also performed some of the construction work directly and to this end hired a number of construction employees directly including some who had previously worked for MacIsaac Mining and Tunneling. In all of these circumstances, the Board finds that at least for the period of the Renovation Project, MacRanald and MacIsaac Mining and Tunneling were engaged in a very much related activity.

These related activities had started by at least on or about April 20, 1999 when MacRanald filed a notice of project for renovation and expansion of Sudbury Downs. At that time, MacRanald had already entered into a contract with MacIsaac for the supply of labour and equipment on the project. The Board’s declarations are accordingly effective from April 20, 1999.

10. This matter is referred to the Registrar to set a date for hearing of the application in Board File No. 0838-99-G.

“Caroline Rowan”

for the Board