Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740

There was no evidence that any employees were transferred from Lester to Planet. There was contradicted evidence that a transfer had been considered. Dan Whalen and Ben McCann testified that Brent Lester told them that he expected to transfer certain employees -- Dave Goodyear, Wally Coady, and Joe Fitzpatrick -- from the Clarenville job (Lester's job site) job to the Burin job if they agreed to quit the union. This evidence was contradicted by other testimony:

(a) Brent Lester denied making this statement;

(b) In cross examination McCann admitted that no Lester Ltd. employees were hired by Planet;

(c) While Wally Coady did not testify as to whether or not he had previously worked for Lester he did testify that he had not joined the union until just before the Burin job, so it would have been difficult for him to have worked for Lester, a unionized contractor.

(d) According to Brent Lester, Joe Fitzpatrick was never hired on the Burin job.

(e) There is no other evidence as to the identity and activities of the employee Dave Goodyear.

The majority of the Board appears to have accepted that there was no evidence that employees were transferred, but discounted the significance of this on the ground that "in the construction industry, it is of little or no weight".

Jimmy Cheeseman testified that Brent Lester had told him to take a welding machine from the Burin site to use at Cow Head. His testimony was contradicted by Brent Lester, who explained that this was not possible as an electric welding machine would not work at Cow Head because there was no electrical source there. As to other matters, Brent Lester testified that:

(a) items shipped by suppliers to the Burin site might have been accidently addressed to Lester Ltd. instead of Planet but that this error would have been due to the supplier and the items were purchased on Planet purchase orders;

(b) Brent Lester had on at least one occasion provided advances to Planet employees using Lester Ltd. cheques when the Planet payroll system had broken down;

(c) Planet's bonding line was supported by guarantees from the Lester Family, Regent Enterprises Ltd. and Lester Holdings Ltd.;

(d) Planet and Lester owned or rented their own equipment but, on occasion, the companies would rent equipment to each other.

While this evidence would be relevant if the application brought was a common or related employer application, it provides no evidence of a transfer or disposition of business. In particular, there is no evidence that any equipment, money or finances were relinquished by Lester and subsequently obtained by Planet.

The evidence on this point is of little assistance, since even if anti-union animus were established, that would not establish that a transfer occurred under s. 89 of the Act on the legal criteria set out earlier.

However, since the Board referred to this issue in reaching its decision, a brief review of the evidence on it may not be amiss. At best, the evidence as to anti-union animus must be regarded as weak.

Dan Whalen, business agent for the union, and Ben McCann, business manager for the union, testified that Brent Lester told them he was doing the Burin job with Planet in order to avoid the union. Bill Cheeseman, a member of the union, testified that when he visited the Burin site he was told by Keating, an employee at the site, that if he wanted to work on the Burin Hospital "you'll have to tear up your union card like we had to do". Cheeseman also testified that Brent Lester had offered him a union job at non-union wages.

This evidence is refuted by the following evidence:

(a) There was no evidence to substantiate the claims of Whalen and McCann that Brent bid the Burin project with Planet in order to avoid the union;

(b) Brent Lester testified that Cheeseman was not hired because he lacked the necessary ticket. The person who was hired to perform the work that Cheeseman claims he was initially offered by Brent Lester at lower than union rate was in fact paid the union rate;

(c) Brent Lester testified that he would have preferred to use Lester to do the Burin job as Lester employees had gained experience working on a similar hospital project at Clarenville such that it would have been easier to perform the work through Lester than through Planet;

(d) Keith Keating and Wally Coady were hired to work at the Burin site. Coady testified that he was not told he would have to tear up his card before working at the site. Both were card carrying union members, and Brent Lester was aware of their union status. Keith Keating denies being told that he would have to give up his union status in order to work at the site. Keith Keating also denies telling Cheeseman that he would have to tear up his card to work at the site. Rather, he testified that when Whalen (the business agent) and Cheeseman came to the site they threatened to "shut it down", and Keating then told Whalen that if Whalen wanted his card he would tear it up in front of him.

This is the crucial element in this case. Evidence before the Board clearly established that Brent and Wade Lester performed work for both companies and that Brent Lester performed bidding on behalf of both companies. The Court of Appeal discounted this factor on the ground that Lester did not transfer the expertise to Planet, but rather, that it was the decision of Brent and Wade Lester operating in the course of their duties with the respective companies as to how their talents should be applied. The appellant submits that this interpretation fundamentally misconstrues the position of employees/managers/directors in relation to the companies for which they work.

Given the interrelationship between the two companies in question, I agree that it may not be appropriate to distinguish between the principals of the company and the company itself, as did the Court of Appeal. Nevertheless, it remains difficult to see on what basis a transfer or disposition of expertise can be said to have occurred. Both companies are entitled to use the expertise of the Lester brothers. The fact that Planet did so cannot be construed as a question of Lester's having relinquished the services of Brent and Wade. The evidence shows that the two companies, through their common employees, assisted each other -- "mutual back scratching", as the Court of Appeal graphically put it. For example, in relation to the Cow Head job, Lester received from Planet the information and prices which enabled Lester to obtain the contract. Conversely, when working at the Burin site Planet benefited from previous knowledge attained by Lester at the Clarenville site. The relationship is better described as a sharing of expertise than as a disposition from Lester to Planet.

Moreover, the expertise of Brent and Wade cannot be said to be expertise belonging to Lester. As the respondent argued, the word "expertise" is defined as an overall grasp of a subject process, etc. produced by ability, experience and skill. A person's expertise is something which has been built up or acquired over time. Lester was incorporated in 1978 and Planet in 1981. At the time of the hearing the expertise of Brent and Wade was expertise acquired over a period of years while working for both companies. Assuming that their expertise was a corporate asset, it is equally the asset of both Lester and Planet.

Finally, it is clear that the presence of Brent Lester in both companies did not result in a loss of work for Lester. The work which was available to Planet because of its non-union status was simply not available to the unionized company, Lester. The unrefuted evidence given at the hearing was that the presence of Planet has not resulted in any loss of work for Lester. Had Brent Lester been working for an unrelated company under the same circumstances, a successorship application would not have succeeded. The fact that Brent Lester has ownership in both companies cannot alter the fact that there is no evidence of disposition.