Bricklayers, Masons Independent Union of Canada Local 1 v. Del Gant Construction Limited, 2001 CanLII 3007

Bricklayers, Masons Independent Union of Canada Local 1 v. Del Gant Construction Limited

3254-00-R Bricklayers, Masons Independent Union of Canada Local 1, Applicant v. Del Gant Construction Limited, Responding Party v. Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America, Intervenor v. Labourers’ International Union of North America, Ontario Provincial District Council, Intervenor v. Universal Workers’ Union, Labourers’ International Union of North America, Local 183, Intervenor v. Masonry Contractors Association of Toronto Incorporated, Intervenor.

3808-00-R Bricklayers, Masons Independent Union of Canada Local 1, Applicant v. 1428508 Ontario Limited c.o.b. as Forma-Con Construction, Responding Party v. Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America, Intervenor v. Labourers’ International Union of North America, Ontario Provincial District Council, Intervenor v. Universal Workers’ Union, Labourers’ International Union of North America, Local 183, Intervenor v. Masonry Contractors Association of Toronto Incorporated, Intervenor.

0414-01-R Bricklayers, Masons, Independent Union of Canada, Local 1, Applicant v. Nu-Tech Concrete Forming Ltd., Responding Party v. Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America, Intervenor v. Labourers’ International Union of North America, Ontario Provincial District Council, Intervenor v. Universal Workers’ Union, Labourers’ International Union of North America, Local 183, Intervenor v. Masonry Contractors Association of Toronto Incorporated, Intervenor.

0483-01-U Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Bricklayers, Masons Independent Union of Canada, Local 1, Universal Workers’ Union, Labourers International Union of North America, Local 183, John Meiorin, Tony Dionisio, Victor Ferreira, Rocco Lotito, Responding Parties v. Delgant Construction Ltd., Avenue Structures Inc., 1428508 Ontario Limited c.o.b. as Forma-Con Construction, Intervenors v. Labourers’ International Union of North America, Ontario Provincial District Council, Intervenor v. Masonry Contractors Association of Toronto Incorporated, Intervenor.

BEFORE: David A. McKee, Vice-Chair.

APPEARANCES: L. Richmond for Bricklayers Local 1 in File Nos. 0483-01-U and 3254-00-R; J. Meiorin for Bricklayers Local 1 in File Nos. 3808-00-R; D. Defrancesco for Del Gant Construction and Forma-Con Construction; D. Leone for Avenue Structures; D. Watson for the Carpenters’ Union; M. Lewis for Labourers' International Union of North America Local 183; John Moszynski for the Labourers’ International Union of North America, Ontario Provincial District Council; C. E. Humphrey for the Masonry Contractors Association of Toronto Incorporated.

DECISION OF THE BOARD; June 11, 2001

1This decision is an interim decision in these four applications. The Board issued a decision in three of these applications dated May 30, 2001. I heard further argument and discussion on these matters on June 7, 2001. This decision sets out in a written and more precise form the rulings made at that time.

Intervenor status

2Intervenor status was sought by the Labourers’ Employee Bargaining Agency (“Labourers EBA”) and Universal Workers’ Union, Local 183 Labourers' International Union of North America (“Labourers Local 183”). No party opposed this status, and the Board deems it appropriate to grant intervenor status to them.

3The Masonry Contractors Association of Toronto (“MCAT”) also sought status. This was opposed by the responding parties and by the Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America (“the Carpenters’ Union”). I ruled that MCAT had a legal interest in the proceedings and as such had status as an intervenor as of right.

4MCAT has a collective agreement with the applicant Bricklayers, Masons Independent Union of Canada, Local 1 (“Bricklayers Local 1”). This covers persons other than construction labourers in the industrial commercial and institutional sector of the construction industry. A finding that Bricklayers Local 1 has been absorbed by, or become the alter ego of Labourers Local 183, or that it is otherwise an affiliated bargaining agent of the Labourers’ Employee Bargaining Agency, might have an effect on the existence or the applicability of that collective agreement in the ICI sector of the construction industry.

Notice to “independent contractors”

5As noted in the May 30, 2001 decision, Bricklayers’ Local 1 stated that it believed that those employers with whom they had signed collective agreements directly, and who were not members of MCAT should be given notice. The Board repeats the direction given in the May 30 decision. Bricklayers Local 1 is directed to provide the Board with a list of the employers it claims falls into this group with addresses and facsimile and telephone numbers. This list is to be supplied in paper and electronic form, using a “Word” file format. Bricklayers’ Local 1 is directed to file this list with the Board on or before 5:00 p.m. on June 27, 2001. The Board will provide those employers with a copy of this decision and the May 30, 2001 decision.

The unfair labour practice in Board File No. 0483-01-U

6On agreement of the parties this application is adjourned until Board File No. 3254‑00-R and 3808-00-R are disposed of.

7Labourers’ Local 183 raised an issue with the reference in the application to a document colloquially known as the “Peace Treaty”. This agreement was examined in some detail in Penegal Trim & Supply Ltd. [2000] OLRB Rep. March/April 332. Local 183 expressed concern that the pleadings in this application might require the Board to examine in detail, and potentially consider applying, the Peace Treaty. The Carpenters’ Union said that it would not do so. In my practice as a lawyer before my appointment to the Board, I had a role in drafting that document. I advised the parties that if the evidence or argument of any party required the Board to examine the Peace Treaty to a greater extent than to rely on the findings of the Board in Penegal, supra, that I would decline to hear this matter.

8I direct Labourer’s Local 183 to advise the Carpenters’ union of those areas of the pleadings which they believed might raise this issue and to seek particulars or clarification. I further direct the Carpenters’ Union to respond to this request for particulars in reasonable detail, even if that detail would go beyond the normal scope of particulars to pleadings. If following that exchange any party is concerned that the evidence or argument in this application would require the Board to do more than rely on the findings in Penegal, supra, that party is to advise the Board forthwith, and set out the reasons for their submission in detail.

Order of issues

9Board File No. 0414-01-R is to be set down for hearing on the same dates as the other two files. The remaining three files are all applications for certification. There are, broadly speaking, two sets of issues. One is the status of Bricklayers Local 1 to bring this application. The second is the appropriate bargaining unit and the list of persons in the bargaining unit. Since either one could determine the outcome of the case without the other issue needing to be decided, the question of which issue to proceed with first is determined primarily by the most efficient use of the Board’s time. The issue of the appropriate bargaining unit must be determined before the list can be settled in Board File No. 3254-00-R before the list can be determined. However, the list issues would, at this point, take many more days of hearing to dispose of than the issue of the status of Bricklayers’ Local 1. Since the resolution of that status issue might make the determination of the list issues unnecessary, it is sensible to proceed with the issue of the status of Bricklayers’ Local 1 first.

10These three files are being referred to the Manager of Field Services for completion of the certification process. If the situation with respect to the list issues changes, the parties should advise the Board if they wish to revisit this issue at that time. The parties should also be prepared to argue the issue of the appropriate bargaining unit description if there is time to do so during the days set for the hearing of the status issue.

Production

11The Carpenters’ Union sought production of a large number of documents from both Bricklayers’ Local 1 and Labourers’ Local 183. Mr. Richmond, on behalf of Bricklayers’ Local 1 indicated there were a number of documents which might assist the applicant in framing its request for production of documents more precisely. These documents relate to the relationship of Bricklayers’ Local 1 and Labourers’ Local 183, and the employment of persons to do the work related to bargaining rights held by Bricklayers’ Local 1, either directly of through a Council. The Board orders Bricklayers’ Local 1 to produce the documents referred to by Mr. Richmond at the hearing to the Carpenters’ Union.

12To the extent that those documents (which the Board has not seen) do not fully answer the production requirements of the Carpenters Union, the Board orders that a number of other documents be produced. The Board is satisfied that these documents are reasonably necessary for the conduct of the case, and are at least arguably relevant to the issues raised in the applications. For the purposes of this decision, production may be accomplished by one of two methods.

Copies of the documents themselves may be delivered to counsel for the Carpenters’ Union (with a right to see the originals if demanded). Alternatively, the documents may be assembled at the offices of Labourers’ Local 183 and/or Bricklayers’ Local 1 and counsel for the Carpenters Union will be able to examine them on reasonable notice during business hours or as otherwise agreed upon. If counsel requests copies of some or all of the documents, they are to be provided.

13These production orders are made pursuant to section 111(2)(b), not pursuant to the service of a summons. Thus payment of conduct money is not required. However, given the large number of documents potentially to be produced, the Board orders the Carpenters’ Union to pay the producing party their reasonable costs of copying the documents (a payment not required when a summons is served).

14The Board orders that the following documents be produced:

1. All documents disclosing the nature of the employment or retainer of all officers, agents and employees of Bricklayers’ Local 1. It may be that all of the necessary information is contained in the documents Bricklayers’ Local 1 has undertaken to produce. However, if there are questions unanswered by these documents, the Board orders both Bricklayers' Local 1 and Labourers' Local 183 to produce all contracts, agreements, or other form of document governing the employment or the provision of services to or by any officer, agent or employee of Bricklayers' Local 1 by either Bricklayers' Local 1 or Labourers' Local 183. The Board further orders Bricklayers' Local 1 and/or Labourers' Local 183 to produce any payroll records or records of payment made pursuant to any written or oral agreement with respect to any officer, agent or employee of Bricklayers' Local 1. The time period is January 1, 1987 to May 2, 2001.

2. All collective agreements to which Bricklayers' Local 1 is or was a party directly or through the Masonry Council of Unions Toronto and Vicinity (“MCUTV”). This will include all collective agreements with MCAT, and any other full collective agreement which contains different terms and conditions from the MCAT agreement. All “short-form” agreements binding Bricklayers' Local 1 and an employer to any other form of collective agreement, be that other agreement with MCAT or otherwise. For the purposes of this Order, only one copy of short-form agreements which are identical except in respect of the identity of the employer party need be produced. The time period is January 1, 1987 to May 2, 2001.

3. All referrals of grievances to arbitration, the underlying grievance and the resolution, if any of the grievance for any collective agreement to which Bricklayers' Local 1 is a party either directly or through the MCUTV. The time period is January 1, 1987 to May 2, 2001.

4. All books or other records of request by employers for employees or records of referrals of persons to employment by Bricklayers' Local 1 from January 1, 1987 to May 2, 2001, and by Labourers' Local 183 directly or through the MCUTV from June 1, 1992 to May 2, 2001.

5. All remittance forms recording payment of dues or other supplementary benefits by an employer arising out of the employment of members of Bricklayers' Local 1 or Labourers' Local 183 under a collective agreement to which Bricklayers' Local 1 or the MCUTV is a party. For Bricklayers' Local 1 from January 1, 1987 to May 2, 2001; for Labourers' Local 183 from June 1, 1992 to May 2, 2001.

6. The Constitutional documents creating and governing Bricklayers' Local 1 and the MCUTV. All agreements between Labourers' Local 183 and/or Bricklayers' Local 1 and/or the MCUTV. All records of transfers of money among any or all of Labourers' Local 183, Bricklayers' Local 1, and MCUTV. The time period is January 1, 1987 to May 2, 2001.

7. Records of rental payments from Bricklayers' Local 1 to Labourers' Local 183 at any time.

Conclusion

15The three certification files are set for hearing on November 1, 2, 19, 20, 27, and 28, 2001 at the Board’s offices at 505 University Avenue, 2nd floor, Toronto commencing at 9:30 a.m. each day. In the meantime the files are referred to the Manager of Field Services for the conduct of a Regional Certification meeting and the conclusion of the post-vote process. In this regard the parties have agreed to exchange their positions on the challenges in Board File No. 3808-00-R by June 21, 2001. Written submissions will follow the Regional Certification Meetings in the normal course or as counsel may agree.

16I am seized of these applications.

“David A. McKee”

for the Board