1085-00-R United Brotherhood of Carpenters and Joiners of America, Local 2486, Applicant v. 739183 Ontario Inc. c.o.b. as G.M. Contracting, R.L.P. Mechanical Ltd., R.L.P. Machine & Steel Fabrication Inc., Spectrum Construction Services Inc., 910609 Ontario Inc. c.o.b. Columbia Chrome and Cloutier’s Machine Shop Limited, Responding Parties.

BEFORE: Inge M. Stamp, Vice-Chair.

APPEARANCES: Mike McCreary, Fred Karst and Tom Cardinal appearing for the applicant; no one appearing for 739183 Ontario Inc. c.o.b. as G.M. Contracting; no one appearing for R.L.P. Mechanical Ltd.; Jamie Knight, Steve Symes and Lara Vos appearing for R.L.P. Machine & Steel Fabrication Inc.

DECISION OF THE BOARD; December 3, 2001

1This is an application made pursuant to sections 69 and 1(4) of the Labour Relations Act, 1995, as amended (the “Act”). The applicant (“Carpenters Local 2486”) alleges the responding parties are related employers for the purposes of the Act and/or there has been a sale of a business by 739183 Ontario Inc. c.o.b. as G.M. Contracting to R.L.P. Mechanical Ltd. The applicant seeks a declaration that the responding parties are bound to the Carpenters Provincial Collective Agreement.

2By decision dated November 1, 2000 the Board (differently constituted) added R.L.P. Machine & Steel Fabrication Inc. (“R.L.P. Machine”) as a responding party. Paragraph 3 of the Board’s decision dated November 7, 2000 adjourns a number of grievances pending the disposition of the related employer/sale of business application.

3When this matter came on for hearing only R.L.P. Machine participated in the proceeding. Counsel for R.L.P. Machine submits the applicant has not pleaded a prima facie case of a sale of a business or made out a prima facie case that the responding parties are related employers for the purposes of the Act.

Argument

4Counsel for R.L.P. Machine accepts, for the purpose of this argument, that bargaining rights were held by 739183 Ontario Inc. c.o.b. as G.M. Contracting (“G.M. Contracting”) through the signing of a voluntary recognition agreement. Counsel submits in order for the applicant to be successful it must show that bargaining rights flowed from G.M. Contracting to R.L.P. Mechanical Ltd. (“R.L.P. Mechanical”) and then to R.L.P. Machine.

5Counsel for R.L.P. Machine argued as a preliminary matter that the applicant has not pled sufficient particulars for the underlying basis to move the bargaining rights from G.M. Contracting to the old R.L.P. Mechanical. Counsel submits this applies to both the related employer application and the sale of a business application. Counsel takes the position that the pleadings in schedule “B” of the application are not sufficient for the remedy requested.

6Counsel reviewed the pleadings and takes issue with the lack of information provided by the applicant. Counsel for R.L.P. Machine submits it is not sufficient to look at names of persons involved in some of the entities but that the Board must look at the relevant dates. The pleadings have gaps in time. G.M. Contracting was dissolved in 1995. R.L.P. Mechanical had its corporate status cancelled in 1994. There was no suggestion that there was any disposition of anything from G.M. Contracting to R.L.P. Mechanical. Counsel for R.L.P. Machine submits his client is the only company left standing. The applicant has not met the threshold set out in the Board’s jurisprudence.

7The applicant referred the Board to a number of cases where the Board talks about the threshold to be met in cases involving the reverse onus under sections 1(5) and 69(13) of the Act. The applicant reviewed the pleadings in detail in the context of the Board’s jurisprudence. The applicant cited the following cases in support of its position: Oxville Homes Ltd., [1998] O.L.R.D File Nos. 2097-95-R, 2098-95-G; Toronto-Dominion Bank, [1999] O.L.R.D. No. 1348 File Nos. 2645-98-R, 4048-98-R, 4049-98-R, 4050-98-R, 4053-98-R; Toronto-Dominion Bank, [2000] OLRB Rep. November/December 1240 [2000] O.L.R.D. No. 4167 File Nos. 2645-98-R, 4048-98-R, 4049-98-R, 4050-98-R, 4053-98-R.

8The Board in Oxville Homes Ltd. (supra) in paragraph 29 stated:

29. The Board has often indicated that in related employer and successor employer applications there is a low threshold for an applicant making such an application because the pertinent information is in the domain of the responding parties, and the applicant is likely only peripherally aware that there may be some relatedness or successorship as between companies. In this application I am satisfied that the trade union has met the threshold of a prima facie case on the related employer application, and the matter will therefore not be dismissed at this juncture. I do not intend to comment on the nature or strength of the applicant’s pleadings as it would serve no purpose to do so at this early stage in this case.

9In paragraph 6 of Toronto-Dominion Bank (supra), the Board stated in part:

6. The Board is satisfied that the Carpenters have pleaded a prima facie case. The Board traditionally maintains a relatively low standard for prima facie in related employer applications, having regard to the evidentiary obligations on responding parties in section 1(5). …

10The Board is satisfied, having reviewed the pleadings and the parties' submissions, that the applicant has met the threshold of a prima facie case on both the related employer and the sale of a business application. This matter will not be dismissed at this point.

11After the hearing took place the applicant wrote to the Board seeking to add additional responding parties to this application. On October 12, 2001 counsel for the applicant wrote to the Board enclosing an amended application under section 69 and/or subsection 1(4) of the Act. The applicant filed amended particulars and amended the relief requested.

12The applicant further requested that this matter be heard together with a similar application brought by the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Unions 628 and 800 (“U.A.”) in Board File No. 1506-00-R. Counsel indicated he had obtained consent from counsel for the U.A. to have these matters heard together.

13Counsel indicates that the amended application mirrors the U.A. application. That is not exactly correct. The instant application brought by the Carpenters Local 2486 relies on its bargaining rights to flow from 739183 Ontario Inc. c.o.b. G.M. Contracting. That is not an entity named as a responding party in the U.A. application. Nor is it a named responding party in Board File No. 1507-00-R which is a section 69/1(4) application brought by the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128 (“Boilermakers Local 128”). Board Files 1506-00-R and 1507-00-R are being heard together before Vice Chair McKee.

14It appears that the applications as they relate to Spectrum Construction Services Inc. have been withdrawn by counsel for the U.A. and the Boilermakers.

15The amended application filed with the Board does not indicate that the responding parties have been served with this amended application. There is no certificate of delivery filed with the amended application dated October 12, 2001.

16The applicant is directed to file a certificate of delivery with the Board indicating that all of the named responding parties have been served with the amended application. The Board will then send out its Notice to Employees of Application under Section 69 and/or Subsection 1(4) of the Act (Form B-18). The new terminal date for filing responses and/or amended responses will be 10 days from the Board’s Notice (Form B-18) of the amended application.

17The Board directs that the application in Board File No. 1085-00-R be amended to add: Spectrum Construction Services Inc., 910609 Ontario Inc. c.o.b. Columbia Chrome and Cloutier’s Machine Shop Limited. The Board notes that R.L.P. Machine & Steel Fabrication Inc. was added as a responding party by Board decision dated November 1, 2000.

18Paragraph No. 19 of Schedule “B” of the amended application (Form A-24), makes reference to a newspaper article which is attached. No such newspaper article was attached to the amended application.

19In the circumstances the Board is not going to direct that this application be heard together with the applications of the U.A. and the Boilermakers. However it would appear that the parties to this application may benefit from discussions as to how to proceed in light of the other two applications. One suggestion would be to schedule this matter after the other two applications have been determined.

20This application is referred to the Registrar to set dates for the continuation of this matter. I am not seized.

“Inge M. Stamp”

for the Board