Labourers’ International Union of North America, Local 1059 v. Dutchman Interior Stripping Inc., 2001 CanLII 9750

Ontario Labour Relations Board

1287-01-R Labourers’ International Union of North America, Local 1059, Applicant v. Dutchman Interior Stripping Inc., Dutchman Boiler Removal Inc., DC Interior Stripping, DL Interiors, DC Interiors, The Dutchman, Oebele Mast, Richard Mast and Zorka Uskokovic, Responding Parties.

BEFORE: Marilyn Silverman, Vice-Chair, and Board Members J. Knight and G. McMenemy.

DECISION OF THE BOARD; November 1, 2001

1This is an application filed under sections 69 and 1(4) of the Labour Relations Act, 1995, S.O. 1995, c. 1 (the "Act") for declaratory and other relief. The application was made on July 30, 2001. The accompanying Certificate of Delivery (Form A-24) stated that the responding parties were served on July 31, 2001 by delivering a copy of the necessary documents required by Rule 25 of the Board’s Rules of Procedure to the responding parties by giving them to a courier (Purolator Courier) on July 30, 2001 who advised counsel for the applicant that they would be delivered not later than noon on July 31, 2001. The Registrar faxed a Confirmation of Filing of Application Under Section 69 and/or Subsection 1(4) (Form B-16) to the addresses provided for the responding parties in the application. No responses have been filed.

2The Board’s Rules of Procedure explicitly stipulate the consequences of failing to comply with the filing requirements contained in the Rules. Rule 41 of the Board’s Rules of Procedure provides:

“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.”

3The Board requires an applicant seeking relief in applications under sections 69 and 1(4) of the Act to deliver a number of documents to the responding parties. The applicant must deliver to each responding party the following material:

1. A completed copy of the application.
2. A blank copy of the Response to the application (Form A-25).
3. Notice to the Responding Parties of the application (Form C-9) with the names of the parties and the date inserted.

4The only thing a responding party in a proceeding under sections 69 and 1(4) must do to respond is file its response within 10 days (excluding Saturdays, Sundays and holidays) after the application was delivered to it. The Board’s Rules require much quicker responses from responding parties in many sorts of applications. In an application for certification, for example, a responding employer must respond within two days after the application was served on it, while a responding party in a grievance referral under section 133 of the Act must respond within 5 days. If there is not enough time for a responding party to prepare a response and more time is needed to compile the information and draft a response, a responding party may request that the Board exercise its power under Rule 49 to lengthen the time for filing its response if it provides adequate reasons for the Board doing so and makes its request before the time for filing the response has expired. Where, however, a responding party does nothing after having an application served on it, there is no reason for the Board to exercise its discretion to extend the time for filing a response.

5The Notice to the Responding Party Of Application Under Section 69 And/Or Subsection 1(4) Of The Act (Form C-9) delivered to the responding parties states in paragraph 7:

“If you do not file your response and other required documentation required by the Board’s Rules, the Board may not process your response and documents, and may decide the application without further notice to you. Furthermore, you may be deemed to have accepted all the facts stated in the application.”

The Board’s Rules also deal specifically with the consequences of failing to file the Form A-25 in a timely way. Rule 41, set out earlier, allows the Board to proceed to deal with the application based on the material filed and to deem the responding party to have accepted all of the facts stated in the application. Furthermore, Rule 40 of the Board’s Rules of Procedure provide: “The Board may decide an application without further notice to anyone who has not filed a document in the way required by these Rules.”

6Therefore, the Board may proceed to deal with the application under sections 69 and 1(4) of the Act based on the material filed by the applicant where the responding parties have ignored the application delivered to them.

7Based on the material filed by the applicant, the Board finds:

a) the applicant, Labourers’ International Union of North America, Local 1059 (the “union”) is a trade union representing employees in a variety of bargaining units in and around London, Ontario;

b) the responding parties, Dutchman Interior Stripping Inc., Dutchman Boiler Removal Inc., DC Interior Stripping, DL Interiors and/or DC Interiors, The Dutchman, Oebele Mast, Richard Mast and Zorka Uskokovic are entities carrying on an interior and exterior demolition business in and about London, Ontario;

c) Dutchman Interior Stripping and Dutchman Boiler Removal are each bound to the collective agreement between Metropolitan Toronto Demolition Contractors Inc. and Labourers’ International Union of North America and Labourers’ International Union of North America, Ontario Provincial District Council, effective May 1, 1998 to April 30, 2001 (the “Demolition Agreement”). The parties are currently in negotiations for a renewal collective agreement, and the terms and conditions of employment are continued by virtue of section 86 of the Act;

d) Dutchman Boiler Removal Inc. originally became bound to the Demolition Agreement through a pick-up agreement dated February 25, 1998. Oebele Mast executed this agreement on behalf of the employer. This company’s incorporation was cancelled by the Companies Branch on or about February 2, 1995;

e) on or about May 2, 1996, a new company, Dutchman Interior Stripping Inc., was incorporated. This company signed an identical pick-up agreement dated October 28, 1996. This agreement was executed by Zorka Uskokovic, who is the sole director of the corporation and the wife of Oebele Mast. The union was told by Oebele Mast that Uskokovic had to execute the collective agreement because Mast did not want his name on any contracts because “he had a problem”, which the union understood to mean that he was being pursued by creditors. Uskokovic does not, to the union’s knowledge, perform any work related to the activities of this company and has no role whatsoever in connection with the company. The registered office address of this company is on Shepherd Street in London, which is Oebele Mast’s former residence;

f) Oebele Mast subsequently moved to a new residence at 1868 Parkhurst Avenue, and the union has since then received remittances from the company at 1868 Parkhurst Avenue. Oebele Mast was always the contract person and key person for Dutchman Interior Stripping Inc.;

g) in or around April, 2001, it came to the applicant’s attention that Dutchman Interior Stripping Inc. was performing interior and exterior demolition work at the Library Project at the Galleria Mall, in London, Ontario. This work was being performed by employees who were not members of Local 1059, contrary to the provisions of the Demolition Agreement. Oebele Mast was and is the contact person and key person for the company performing work on the site. At no time did Dutchman Interior Stripping Inc. request that the applicant provide labourers for this project. On or about April 23, 2001, the union filed a grievance concerning its failure to apply the Demolition Agreement to this project, seeking damages and other relief;

h) the applicant estimates that Dutchman Interior Stripping Inc. employed four labourers on a full-time basis between April, 2001 and June, 2001. To the best of the applicant’s knowledge, the work was performed by individuals who were and are not members in good standing of Local 1059, in violation of the Collective Agreement. Employees on the site have identified themselves as working for “The Dutchman”, including Richard Mast, who is supposedly a ½ owner of “D.L. Interiors”;

i) Dutchman Interior Stripping Inc. has in the past failed to remit the proper contributions to the LML Welfare Trust Fund. Dutchman Interior Stripping Inc. is currently in arrears in its contributions to the fund in the amount of $1,627.49. This amount does not include contributions owing from work on the Library Project at the Galleria Mall;

j) the union referred the grievance to the Board for resolution (Board File 0491-01-G). The application was not responded to. The Board made an order against Dutchman Interior Stripping Inc. for a total of $12,847.89 in unpaid remittances and damages for violating the recognition and security clauses of the collective agreement, among other things;

k) the union caused the Board’s Order to be filed with the Ontario Superior Court of Justice (Court File 01-CV-211896) and issued garnishments against a contractor and the owner of the library project;

l) in response to the garnishment, the union received a copy of an affidavit of Oebele Mast. In this affidavit, Oebele Mast alleges that DC Interior Stripping is an “unincorporated business” in operation since May, 2000, and that Oebele Mast is a half-owner of this business with his son, Richard Mast. The address of DC Interior Stripping, according to the affidavit, is 1868 Parkhurst Avenue, the same address provided to the union for Dutchman Interior Stripping Inc.;

m) in his affidavit, Mr. Mast also swears that he had been “involved in a construction business”, which he does not name, in the 1970s and early 1980s. He then swears that he began working for The Dutchman Interior Stripping Inc. which, he alleges, went out of business in 1994. However, as the corporate profile reports indicate, Dutchman Boiler Removal Inc. was incorporated n 1987 and ceased to exist in 1995. Dutchman Interior Stripping Inc. was only incorporated in 1996 and continues to exist;

n) the union was also provided with copies of purchase orders, from one of the garnishes, in the name of “DL Interiors” (which has been altered by hand to read “DC Interiors”);

o) all of these businesses have been operated out of Oebele Mast’s residences, on Shepherd Street and Parkhurst Avenue in London. Up until the time when the union filed the grievance referred to herein, the sign on the mailbox at Oebele Mast’s residence read “The Dutchman”. The demolition permit received from the City of London was also issued to “DL Interiors (The Dutchman)”. The sign on the mailbox has subsequently been removed;

p) the union states that all of the businesses referred to in this application are the same, carried on under various guises and corporate structures. Each of these entities has carried on the same business of interior and/or exterior demolition. Each of the businesses is carried on by the same key person, Oebele Mast, using the same equipment and building;

q) it is apparent that Oebele Mast and/or his various companies are simply attempting to evade their obligations under the Demolition Agreement by setting up various alternative guises under which the same business is being operated;

r) the union states that all of the businesses referred to in this application are the same, carried on under various guises and corporate structures. Each of these entities has carried on the same business of interior and/or exterior demolition. Each of the businesses is carried on by the same key person, Oebele Mast, using the same equipment and building;

s) the union states that Dutchman Interior Stripping Inc., Dutchman Boiler Removal Inc., DC Interior Stripping, DL Interiors and/or DC Interiors, The Dutchman, Oebele Mast, Richard Mast and Zorka Uskokovic constitute one employer for the purposes of the Act, in that they use substantially all of the same key elements required for the operation of the business, including goodwill, equipment, supplies, vehicles, office premises, facilities and services, and key employees and other individuals.

8The purpose of this application is to ensure collection on a judgement against one of the responding parties. The Board is mindful of its jurisprudence in respect of issuing a section 1(4) declaration whose sole purpose is to collect on a debt. Here, we find a labour relations purpose to the application; that is to ensure compliance with a collective agreement in a fact situation where the corporate structure is easily and readily changed.

9Based on the findings of fact set out above, the Board is satisfied that the responding parties carried on associated or related activities under common control and direction.

10Therefore, having regard to the material before the Board and the Board’s findings of fact as set out above, the Board hereby declares that from Dutchman Interior Stripping Inc., and/or Dutchman Boiler Removal Inc., to DC Interior Stripping, DL Interiors (and/or DC Interiors), The Dutchman, Oebele Mist, Richard Mast and/or Zorka Uskokovic are one employer for purposes of the Act. The Board also declares that DC Interior Stripping, DL Interiors (and/or DC Interiors), The Dutchman, Oebele Mist, Richard Mast and/or Zorka Uskokovic are bound by the collective agreement between Metropolitan Toronto Demolition Contractors Inc. and Labourers’ International Union of North America and Labourers’ International Union of North America, Ontario Provincial District Council.

11The damages held to be owing in Board File 0491-01-G are to be attributed, jointly and severally, to now be owed by the responding parties in this application.

“Marilyn Silverman”

for the Board