Ontario Labour Relations Board
1254-01-R International Brotherhood of Electrical Workers, Local 353, Applicant v. Canber Electric Inc., Canber Electrical Consulting Inc., Canber Contracting Inc. and The Canber Group Limited, Responding Parties.
0587-01-G International Brotherhood of Electrical Workers, Local 353, Applicant v. Canber Electrical Consulting Inc., Canber Contracting Inc. and The Canber Group Limited, Responding Parties.
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; October 30, 2001
Reasons for Decision
- These applications are related matters. The grievance referral in Board File No. 0587-01-G was adjourned since die on May 30, 2001. The applicant has requested that it be re-scheduled for hearing together with the section 1(4)/69 application in Board File No. 1254-01-R. That application is scheduled for hearing on November 15, 2001. Section 1(4) and section 69 of the Labour Relations Act, 1995 (the "Act") provide as follows:
(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.
(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.
- The applicant by letter dated October 25, 2001 requests that the Board dispose of these applications without a hearing pursuant to Rules 40, 41, 160 and 161. These Rules provide as follows:
The Board may decide an application without further notice to anyone who has not filed a document in the way required by these Rules.
If a party receiving notice of an application does not file a response in the way required by these Rules, he or she may be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing or consultation, if one is scheduled, and decide the case upon the material before it without further notice.
If a responding party does not deliver and file a "Request for Hearing and Notice of Intent to Defend" (Form A‑87) in the way required by these rules, he or she may automatically be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing (if one is scheduled), and decide the case (or part of the case) upon the material before it without further notice.
Where the facts stated in the application are deemed to be true and the Board considers that it can make a finding of liability, but cannot determine the question of damages, the Board may decide the liability issue under Rule 160 and leave the damages issue to be determined at an oral hearing.
The responding parties have not participated in the Board's process nor have they filed replies as required by the Board's Rules of Procedure. In the circumstances the Board deems the responding parties to have accepted all the facts stated in the applications.
An application under 69/1(4) of the Act affects the employees, if any, of the responding party for which the applicant seeks a declaration that it holds bargaining rights by virtue of section 1(4) and/or section 69 of the Act.
The Board requires the responding parties to post a notice of the application together with the application where they are most likely to come to the attention of the employees affected. The Confirmation Of Filing Of Application Under Section 69 And/Or Subsection 1(4) Of The Act (Form B-16) sets out the posting requirements. Paragraph 5 of Form B-16 states:
- The employer(s) must promptly inform the Registrar of the date and time of the postings by completing section 1 of the Confirmation of Posting form (Form A-26) attached. Form A-26 may be filed by facsimile transmission. The applicant should also verify the posting and should complete and file section 2 of the Confirmation of Posting form (Form A-26) immediately. If there has been a failure to post notices, the applicant should notify the Registrar as soon as possible.
There is nothing in the file which indicates that either of the responding parties has posted the requisite notice. There is nothing in the file to show that the applicant has notified the Board whether there has been a posting of this application. It is in the applicant's interest to notify the Board promptly if there has been no posting when it is seeking a declaration under section 1(4) of the Act and a default decision in the grievance referral, without the need to hold a hearing.
Unlike Inter Wide Sheet Metal Ltd., [2000] OLRD. No. 1331, cited by the applicant, there is nothing before the Board that shows whether the entity for which the applicant is seeking a declaration that they are bound to the collective agreement has any employees affected by the application. In 1022349 Ontario Inc. (c.o.b. Steel-Tech), [1999] OLRD No. 3679 the Board directed posting of notices to the employees before issuing a related employer declaration without the holding of a hearing.
In the circumstances the Board authorizes a Labour Relations Officer to enter the premises of the responding parties where work is being done by employees of the responding parties and post notices to employees who are affected by this application under section 1(4)/69 of