0074-01-R Carpenters’ and Allied Workers, Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Scarborough Shopping Centre Limited and Scarborough Town Centre Holdings Inc., Responding Parties.
0686-01-R Scarborough Town Centre Holdings Inc., Applicant v., Carpenters and Allied Workers, Local 27, United Brotherhood of Carpenters and Joiners of America, Responding Party.
1860-00-G Carpenters’ and Allied Workers, Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Scarborough Shopping Centre Limited, Responding Party.
2029-01-G Carpenters’ and Allied Workers, Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Scarborough Town Centre Holdings Inc., Responding Party.
2030-01-G Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America, Applicant v. Scarborough Town Centre Holdings Inc., Responding Party.
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: N. L. Jesin, C. Calligan and Lister Tenant for Carpenters’ and Allied Workers, Local 27, United Brotherhood of Carpenters and Joiners of America; David C. Daniels and John Bragagnolo for Scarborough Town Centre Holdings Inc.
DECISION OF THE BOARD; December 19, 2001
Board File 0074-01-R is an application for a declaration that Scarborough Shopping Centre Limited and Scarborough Town Centre Holdings Inc. are a single employer for the purposes of the Labour Relations Act (the “Act”) or for a declaration that Scarborough Shopping Centre Limited has sold all or part of its business to Scarborough Town Centre Holdings Inc. Board Files 1862-00-G, 2029-01-G and 2030-01-G are referrals of grievances in the construction industry whose success depends on a finding that the applicant has bargaining rights for Scarborough Town Centre Holdings Inc. It is agreed, then that Files 2029-01-G, 2030-01-G and 1860-00‑G be adjourned pending the outcome of the proceeding in File 0074-01-R.
Board File 0686-01-R is an application for a determination that Scarborough Town Centre Holdings Inc. is a non-construction employer, within the meaning of section 126 and 127 of the Act.
Counsel for Scarborough Town Centre Holdings Inc. readily conceded that at this point, there has been no declaration that the applicant has any bargaining rights with respect to it. However, counsel brought the application as a defence to the single employer/successor employer application. Scarborough Town Centre Holdings Inc. asserts that in the event the Board finds that the Carpenters and Allied Workers, Local 27, United Brotherhood of Carpenters and Joiners of America (the Carpenters) have bargaining rights, those rights should be terminated because Scarborough Town Centre Holdings Inc. meets the criteria for a determination that it is a non-construction employer. Moreover, counsel for Scarborough Town Centre Holdings Inc. proposed that the Board first hear and determine whether it is a non-construction employer. Counsel argued that the evidence and arguments in the non-construction employer application would consume considerably less hearing time and resources than the inquiry around whether it is a single employer with or successor employer to Scarborough Shopping Centre Limited. Counsel conceded that the Board could not make a final determination, but submitted that if the Board were to make a factual finding that Scarborough Town Centre Holdings Inc. met the criteria for a declaration that it was a non-construction employer, it might discourage the applicant from pursuing its single employer/successor employer application. In addition, counsel argued that his client is concerned about accruing liability while the Board hears the single employer/successor employer application.
Counsel for the Carpenters convinced the Board that it did not make practical sense to proceed as Scarborough Town Centre Holdings Inc. proposed. In addition, the Board is not convinced that it has the jurisdiction to do so. As counsel for the Carpenters asserted, even if the Scarborough Town Centre Holdings Inc. was ultimately found to be a non-construction employer, the Carpenters would continue to assert its right to work, or damages if it is prevented from working, in the intervening period. Counsel reminded the Board that if it found there has been a sale of business, then the Carpenters’ bargaining rights apply as of the date of the sale, which on the Carpenters’ view, significantly pre-dates this application. Consequently, the Board will, in any event, have to make a determination about whether the Carpenters have bargaining rights for Scarborough Town Centre Holdings Inc.
Moreover, having regard to the language of section 127, the Board does not believe that it has the jurisdiction to entertain an application seeking a determination that an employer is a non-construction employer unless the entity applying is already subject to construction industry bargaining rights.
(1) "non‑construction employer" means an employer who does no work in the construction industry for which the employer expects compensation from an unrelated person. (“employeur extérieur à l’industrie de la construction”)
127.1 (1) This section applies with respect to a non‑construction employer if, on the day this section comes into force, a trade union represents employees of the non‑construction employer employed, or who may be employed, in the construction industry.
(2) Sections 127 to 168 continue to apply, subject to subsection (3), with respect to the non‑construction employer and the employees the trade union represents as if the definition of employer in section 126 included the non‑construction employer.
(3) If a declaration is made under subsection 127.2(2) that a trade union no longer represents employees employed, or who may be employed, in the construction industry, subsection (2) of this section ceases to apply with respect to the non‑construction employer and those employees.
127.2 (1) This section applies with respect to a trade union that represents employees of a non‑construction employer employed, or who may be employed, in the construction industry.
(2) On the application of a non‑construction employer, the Board shall declare that a trade union no longer represents those employees of the non‑construction employer employed in the construction industry.
(3) Upon the Board making a declaration under subsection (2), any collective agreement binding the non‑construction employer and the trade union ceases to apply with respect to the non‑construction employer in so far as the collective agreement applies to the construction industry.
(4) The Board may re‑define the composition of a bargaining unit affected by a declaration under subsection (2) if the bargaining unit also includes employees who are not employed in the construction industry.
It appears to the Board that a pre-condition to making an application is that a trade union already represents persons who are employed or may be employed by the applicant in the construction industry. The very question before the Board in the single employer/successor employer application is whether the trade union is entitled to represent employees working for Scarborough Town Centre Holdings Inc. and until that issue is determined, that entity cannot bring the non-construction employer application.
Consequently, we decided that the Board should hear the single employer/successor employer application first. We adjourn Board File 0686-01-R pending the determination of Board File 0074-01-R.
Counsel for Scarborough Town Centre Holdings Inc. withdrew his request that the Board determine as a preliminary issue whether the bankruptcy of Bramalea terminated the Carpenters’ bargaining rights.
The hearings in Board File 0074-01-R will continue on February 18, March 12, 25, May 31 and June 3, 2002, commencing each day at 9:30 a.m. at the Board’ premises, 2nd Floor, 505 University Avenue, Toronto, Ontario.
This panel is not seized.
“Mary Ellen Cummings”
for the Board