Ontario Labour Relations Board
2403-01-G United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 800, Applicant v. Desilets & Charette Plumbing & Heating (Contracting Division) Limited, Responding Party.
BEFORE: Harry Freedman, Vice-Chair.
APPEARANCES: A. J. Ahee and Glenn Boyd for the applicant; Michael Horan, Maurice Desilets and Marilyn Desilets for the responding party.
DECISION OF THE BOARD; December 13, 2001
This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as am. The Alternate Chair of the Board authorized me to sit alone to hear and determine this matter pursuant to section 110(14)(a) of the Act.
When the hearing commenced, counsel for the applicant was uncertain whether the responding party (“D&C Contracting Limited”) was taking the position that it was not bound by the Mechanical Contractors Association of Ontario collective agreement by which the applicant was bound. Counsel for the applicant referred to the response filed on behalf of D&C Contracting Limited in which D&C Contracting Limited asserted it was not bound by a collective agreement. The confusion arose, according to counsel for the applicant, because the applicant believed that D&C Contracting Limited, rather than an entity known as Desilets & Charette Plumbing & Heating Limited (“D&C Limited”) had been the successful bidder on the two jobs that are the subject of the grievance (the “Projects”). Counsel for the applicant suggested that the conduct of D&C Limited and D&C Contracting Limited made it unclear just which of them was responsible for the Projects.
Despite asserting at the hearing that it believed D&C Contracting Limited was the successful bidder for the Projects, the applicant named D&C Limited in its grievance as the entity bound by the collective agreement. The applicant alleged in the grievance that D&C Limited undertook the Projects that are in the industrial, commercial and institutional sector of the construction industry in North Bay. In its referral to the Board, the applicant initially named D&C Limited as the responding party. The notice of intent to defend and the response filed by counsel for D&C Contracting Limited indicated that the correct name of the responding party was Desilets & Charette Plumbing & Heating (Contracting Division) Limited. At the hearing of this matter, counsel for D&C Contracting Limited advised the applicant that he accepted that D&C Contracting Limited was bound by the collective agreement with the applicant. He also made it clear that it was his client’s position that D&C Contracting Limited had nothing to do with the Projects. Rather, it was D&C Limited, who is not bound by any collective agreements, that submitted bids for the work on the Projects and obtained the contracts to perform that work.
Counsel for the applicant requested that the name of the responding party in this proceeding be amended to reflect the correct name of the entity that is bound by the collective agreement with the applicant. The amendment requested was granted.
Counsel for the applicant then requested an adjournment of the hearing so that, if necessary, he could make an appropriate application for a single employer declaration under section 1(4) of the Act or an application under section 69 of the Act to allege a sale of a business between D&C Limited and D&C Contracting Limited. Counsel for the applicant argued that the applicant believed D&C Contracting Limited had submitted bids for the Projects because it had applied to the applicant’s stabilization fund in respect of those Projects and referred to a stabilization fund application form submitted by D&C Contracting Limited. After providing counsel for D&C Contracting Limited with a copy of that form, counsel for D&C Contracting Limited pointed out that the application form did not relate to either of the Projects. Counsel asserted that D&C Contracting Limited had not made an application to the stabilization fund in respect of the Projects. Counsel for the applicant was unable to produce an application to its stabilization fund made by D&C Contracting Limited in respect of the Projects. He did have applications made to the stabilization fund by D&C Contracting Limited for other jobs unrelated to the Projects, which is not surprising since D&C Contracting Limited was a unionized mechanical contractor. Counsel for the applicant then relied on another document to suggest that D&C Contracting Limited had submitted bids for those two projects. Counsel for D&C Contracting Limited, after reviewing the document, observed that it referred to D&C Limited and not D&C Contracting Limited. Counsel for D&C Contracting Limited again emphasized that D&C Limited undertook the two Projects after it obtained the work by bidding for it. Finally, counsel for the applicant represented that the president of the Mechanical Contractors Association of Sudbury had advised the applicant that D&C Contracting Limited had submitted the bids for the Projects because only union contractors had bid on the Projects.
Counsel for D&C Contracting Limited submitted that no adjournment was necessary. He argued that counsel for the applicant should have carried out a proper investigation of the matter and should have been prepared to proceed with his case before making this referral to the Board and putting D&C Contracting Limited to the expense of retaining counsel and attending at the hearing. He submitted that D&C Contracting Limited has been in business since 1973 as a unionized mechanical contractor in the North Bay area while D&C Limited has been a non-union mechanical contractor in the North Bay area from the time it was incorporated in 1964. Counsel for D&C Contracting Limited submitted that both companies, owned and operated by the same principals, have carried on business openly as a “double breasted” mechanical contractor for almost thirty years with the knowledge of the applicant. He argued that even a perfunctory review of the circumstances by the applicant would have revealed which entity was bound by the collective agreement and which entity was doing the work on the Projects. In any event, he submitted that if the Board were inclined to grant the applicant’s request for an adjournment, it should be done on terms, and specifically, on the basis that the applicant pays the responding party’s hearing fee for the day.
Although reluctant to grant an adjournment after having the parties travel from North Bay and Sudbury to the hearing, I was satisfied that there was sufficient confusion about which entity was asserting it was not bound by the collective agreement and which entity performed the work on the projects that it would be unfair and unduly prejudicial to the applicant to force it proceed to deal with issues its counsel said he could not have reasonably anticipated prior to the hearing. I was also not prepared to order the applicant to pay the hearing fee for D&C Contracting Limited as I have serious doubt whether the Board has the power to do so in the circumstances before me when the Act, and in particular, sections 133(13), 133(14) and 133(15) spell out the limited circumstances when one party may be required to pay the fees of another party.
I advised the parties that I was granting the applicant’s request for an adjournment and was adjourning the hearing of this matter sine die for a period not exceeding one year from the date of the hearing, that is, one year from December 11, 2001. I also noted that the applicant, if it wished to do so, could file an application for declaratory and other relief under sections 69 and 1(4) of the Act, but that the adjournment was not conditional on the applicant doing so. Either party is free to request the Registrar on or before December 10, 2002 to list this matter for hearing, but if no request is made by that date, it will be deemed dismissed without further notice to the parties. Should a party request that this matter be listed for hearing within that one year period, the Registrar shall fix the date for hearing in consultation with the parties and the hearing date that is fixed shall be peremptory for both parties.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board