September 9, 2022  
Directed to: Chivers Carpenter Lawyers - Kelly Nychka / Natalie Makuch /  
Sylvie Vigneux, Quality Control Council of Canada - Garon Robb / Matt Lyons,  
Osler, Hoskin & Harcourt LLP - Shaun Parker / Briana MacEachern / Adam  
Rempel, Stanley Inspection Canada Ltd. - Lana Chappell, Stanley Technical  
Services Ltd. - Mike Smith , Non Destructive Testing Management Association -  
Gerry Sieben / Darren Steele, CRC-Evans Canada Ltd. - Brent Thompson,  
Stanley Black & Decker Canada Corporation c/o Osler, Hoskin & Harcourt LLP  
- Jennifer Le Donne / Leann McNally / Jeremy Guretzki  
RE:  
A common employer application brought by the Quality Control  
Council of Canada affecting Stanley Inspection Canada Ltd.,  
Stanley Technical Services Ltd., Stanley Black & Decker Canada  
Corporation and CRC-Evans Canada Ltd. Board File No. GE-  
08246  
OUR VISION…  
The fair and equitable  
application of Alberta’s  
collective bargaining  
laws.  
RE:  
A successor employer application brought by the Quality Control  
Council of Canada affecting CRC-Evans Canada Ltd., Stanley  
Technical Services Ltd. and Stanley Inspection Canada Ltd. GE-  
08246  
OUR MISSION…  
To administer, interpret  
and enforce Alberta’s  
collective bargaining laws  
in an impartial,  
[1]  
This decision addresses successorship and common employer  
applications under sections 46, 47, and what is now section 163.6 of the Labour  
Relations Code (the “Code”). The applications were filed by the Quality Control  
Council of Canada (the “Union” or “QCCC) against four companies: Stanley  
Inspection Canada Ltd. (“SI”), Stanley Technical Services Ltd. (“STS”), CRC-  
Evans Canada Ltd. (“CRC”), and Stanley Black & Decker Canada Corporation  
(“SBDC”) (collectively the “Respondent Companies”). When first filed on March  
26, 2020, the Union named only two respondents, SI and STS. At that time, the  
only section raised was section 192 [now 163.6] of the Code, the common  
employer provision that applies in relation to the construction industry. The  
central thrust of this first application was that SI and STS were carrying on  
associated or related activities under common control or direction, and that STS  
was being used to divert work from SI and avoid the collective bargaining  
relationship between the Union and SI.  
knowledgeable, efficient,  
timely and consistent  
way.  
501, 10808 - 99 Avenue  
Edmonton, Alberta  
T5K 0G5  
Tel: 780-422-5926  
Fax: 780-422-0970  
308, 1212 - 31 Avenue  
NE  
Calgary, Alberta  
T2E 7S8  
[2]  
Almost a year later, on March 2, 2021, after receiving documents  
Tel: 403-297-4334  
Fax: 403-297-5884  
produced through the Board’s production process, the Union sought to amend  
its application to add CRC and SBDC as respondents, claiming they were  
common employers with SI and STS. At that time, the Union also raised section  
46 of the Code, alleging that STS and/or CRC was a successor employer to SI.  
E-mail:  
[3]  
At the start of the hearing, on August 13, 2021, the Union sought to  
Website:  
www.alrb.gov.ab.ca  
amend its application again, this time raising section 47 of the Code, the  
common employer provision applying outside the construction industry.  
[4]  
The applications came to hearing before a panel of the Board  
(Schlesinger, Flannery, Ploof) over several days in August, October, and  
November 2021.  
Classification: Public  
2
Background  
[5]  
The parties prepared an Agreed Statement of Facts (“ASF”) and 57 exhibits (totaling  
over 1000 pages) were entered into evidence. The Board also heard evidence from four  
witnesses. The Union called: Jordan Mancini, an employee of both SI and STS; Matt Lyons, a  
Union Business Agent; and Garon Robb, the Union’s Western Canadian Business  
Representative. The only witness to testify for the Respondent Companies was Jeremy  
Guretzki, President of both SI, STS, and a number of other entities.  
[6]  
This case principally relates to two of the Respondent Companies: SI and STS. Both  
companies performed non-destructive testing (“NDT”) work. Before laying out the complicated  
factual background, we begin with a description of this unique work.  
Nature of the Work at Issue  
[7]  
NDT work is quality control work that is performed by highly skilled and specially trained  
technicians. Their task is to inspect work done by other trades. Along with crane rental work,  
NDT work forms part of the Specialty Construction Sector, one of four sectors in the  
construction industry established by the Construction Industry Labour Relations Regulation,  
A.R. 165/2005. That work is distinct from other work in the construction industry because  
workers do not contribute to the actual construction or repair of a structure. The work can also  
take place outside the construction industry.  
[8]  
Chapter 25(f) of the Board’s Policy & Procedure Manual provides a good overview of  
NDT work and it was referenced by the parties in their ASF. It contains the following description:  
Specialty construction is recognized as a separate sector because of several  
unique factors. Both [crane rental and NDT work] provide on-site services to  
other tradespeople, but do not contribute to the actual construction or repair of  
the structure.  
The contractors do not restrict themselves to providing services to general  
contractors in only one sector (e.g., pipeline contractors). Their employees  
routinely cross other sector lines when completing their work and regularly  
perform a mixture of construction and maintenance work. For this reason, it is not  
feasible to break non-destructive testing or crane rental workforces into discrete  
bargaining units such as “all non-destructive testing employees in pipeline  
construction.”  
Non-destructive testing is quality control work done by specially trained  
technicians on work done by other trades. Some examples are: pipe welds being  
tested before being laid in the ground or on the seafloor; vessels being tested for  
wall thickness; concrete floor slabs being x-rayed for stress cables and electrical  
conduit prior to cutting and coring. Other trades have produced the products, and  
non-destructive testing technicians now have to do the testing on their work.  
For insurance reasons, the owners and general contractors do not do this quality  
control work themselves. Non-destructive testing work is done by specialist  
contractors who often report to the contractor’s or owner’s engineer rather than to  
the general contractor. These workers perform work that creates a conflict of  
Classification: Public  
3
interest for them because they perform quality control checks on the work  
completed by other tradespersons.  
Finally, because the work crosses construction sectors as well as maintenance  
work, the contractors and unions, at least in non-destructive testing, have  
traditionally negotiated one collective agreement that covers both construction  
and maintenance work. This creates some difficulty in collective bargaining.  
In construction, bargaining occurs with a registered employers’ organization. In  
non-construction bargaining, the employers bargain through a voluntary  
employers’ organization. The long-term relationship between the parties has  
overcome most of these difficulties. The separate sector accommodates this  
unique bargaining situation.  
Non-destructive testing (NDT) is a very specialized type of work. It involves  
quality control inspection of pipes, boilers, vessels, etc., before they are put into  
operation, using sophisticated equipment and techniques to ensure certain  
stringent government standards are met. Industries utilizing NDT services include  
those involved in the fabrication, construction and maintenance of:  
• pipe mills, pipelines;  
• petroleum refineries, chemical and gas plants;  
• pulp and paper mills;  
• mines;  
• airplanes;  
• thermo-power generating plants;  
• storage tanks and associated facilities; and  
• oil and gas bulk plants and terminals.  
Non-destructive testing includes radiography, ultrasonics, magnetic particle, dye  
penetrant and eddy current.  
[9]  
The two NDT methods frequently mentioned in the evidence are radiography and  
ultrasonic work. The Board’s Policy & Procedure Manual provides this helpful background on  
these methods:  
Radiography  
This is the process of making a permanent record on radiographic film of test  
objects in order to detect defects. It is done by exposing the test object to either  
electrically generated X-rays or gamma-rays from a radiation source. Radiation  
from the source passes through the object and is recorded on radiographic film.  
The film is processed, viewed by qualified technicians who are able to detect  
Classification: Public  
4
defects and anomalies in accordance with applicable codes and standards. This  
method of testing is used in a number of applications such as:  
• weld quality control on pipelines and related facilities, using both internal  
crawlers and external exposure capabilities;  
• material and weld quality control in shop and plant fabrication, for both new  
construction and maintenance;  
• investigation of equipment internals without disassembly;  
• corrosion investigation and wall thickness determination in operational piping  
and vessels using “shadow shots”;  
• inspection of concrete floor slabs for stress cables and electrical conduit prior to  
cutting and coring; and  
• radiography of geological cores.  
In the pipeline industry, NDT services start at the mill where the pipe is  
manufactured, and continues through construction and tying-in.  
Inspection on pipelines is very specialized in that it covers great distances, is  
constrained by tight time schedules and requires highly specialized equipment for  
the large number of welds to be tested. Testing methods most commonly used  
on pipelines are X-ray and gamma-ray. Internal crawlers are often used, and  
pipes ranging in size from 6 inches to 48 inches can be serviced.  
Ultrasonics  
This method uses electrically generated sound waves to penetrate through an  
object in order to detect defects. Sonic reflection, refraction and absorption are  
then displayed and recorded on a video screen for interpretation. This process  
requires significantly more skill and experience in order to provide accurate  
interpretations. This method of testing is used in a number of applications such  
as:  
• quality control testing of welds on piping fabrication and installation;  
• corrosion surveys on in-service pipelines and/or facilities to develop life  
histories on equipment;  
• quality control on welds and material in vessel, bridge and structural fabrication;  
• wall thickness testing in vessels and facilities; and  
• quality control on welding of continuous track rail lines.  
[10]  
The above descriptions were generally consistent with the evidence provided by the  
witnesses before us.  
Classification: Public  
5
Corporate Structure Relating to the Respondent Companies  
[11]  
As noted above, the entities at the centre of this case are SI and STS. They are part of a  
complicated corporate network that we outline at this stage of our reasons.  
[12]  
Both SI and STS have the same parent company: Stanley Inspection US LLC (“SI US”  
or the “Parent Company”), although it has no direct ownership of either company. SI US was  
incorporated pursuant to the laws of Alabama. It is headquartered in Houston, Texas, and Mr.  
Guretzki is its President. He is also the President of SI and STS, and several other companies  
which were collectively referred to in the evidence as the “Portfolio Companies.”  
[13]  
During his testimony, Mr. Guretzki described SI US as a holding company that provides  
support services to the Portfolio Companies. It does not perform NDT work. The Parent  
Company owns essentially all of the assets used by the Portfolio Companies in carrying out  
their work. This approach to global operations optimizes efficiency by deploying equipment to  
specific Portfolio Companies requiring the equipment for use at a particular time. In addition to  
purchasing the equipment, SI US forecasts equipment needs, and looks after equipment  
maintenance and repairs.  
[14]  
This centralized ownership of equipment applies to almost all assets used by Portfolio  
Companies, including specialized NDT equipment, vehicles, labs, computers, and software.  
When the Parent Company’s equipment is not in use, it is stored by one Portfolio Company until  
another company needs it. The Portfolio Companies are permitted to put their own branding on  
the asset when it is in their use.  
[15]  
Mr. Guretzki indicated this was a common way to set up companies in this industry. The  
NDT equipment is expensive and this approach to corporate structuring makes it more  
economical than having equipment sit unused. Portfolio Companies either pay rent or a margin-  
based approach is used to account for the use of the Parent Company’s equipment. However,  
there is no form of agreement in place between SI US and the Portfolio Companies regarding  
payment for the use of assets.  
[16]  
Other oversight provided by SI US to the Portfolio Companies includes the following:  
safety, including tracking safety incidents and compliance with regional regulations. This  
area essentially quarterbacks the safety policies of the corporate team, with the Portfolio  
Companies coordinating their policies with the SI US safety manager;  
financial oversight. Portfolio Companies can make purchases within certain limits, above  
which Mr. Guretzki’s approval is needed. Mr. Guretzki was unable to recall what the limit  
was, but admitted it was fairly low. Given that the Parent Company owns most of the  
assets, large expenditures were rare according to Mr. Guretzki;  
research and development;  
training and technical support. This involves ensuring the standardization of products  
and services offered by the Portfolio Companies in order to protect the reputation of the  
Stanley name. The Parent Company provides a minimum standard that can be used as  
a starting point and each Portfolio Company is then responsible for ensuring compliance  
with any additional local requirements. In relation to Advanced or Automated Ultrasonic  
Testing (“AUT”), a specialized type of ultrasonic work, Michael Cook provides this  
support to the Portfolio Companies on behalf of SI US. Mr. Cook is mentioned later in  
Classification: Public  
6
the evidence as he lives in Alberta and has additional connections to both SI and STS.  
Other individuals provide technical support in relation to other NDT testing methods.  
[17]  
Mr. Guretzki testified that each Portfolio Company has its own operations manager who  
pursues that company’s work and manages the performance of that work with teams of  
employees they select. According to his evidence, it is the operations manager who is  
responsible for the day-to-day management of the Portfolio Company’s business, including  
business development, customer relations, equipment forecasting, performance of work,  
staffing, employee management (discipline and termination), and strategic decision-making.  
[18]  
All three companies, SI US, SI and STS, are wholly owned by CRC-Evans Pipeline  
International (“CRC-Evans International”). CRC-Evans International is a world-wide provider of  
pipeline related equipment. It also owns all the voting shares of CRC, another respondent in the  
present application. We heard little evidence about CRC other than that it eventually ended up  
sharing its workspace with SI when SI was struggling to drum up business, as outlined later in  
these reasons.  
[19]  
CRC-Evans International is a wholly owned subsidiary of Stanley Black & Decker Inc.  
(“SBD”), which has a large number of subsidiaries around the world. It is the ultimate US parent  
company of the various entities at issue before us and the sole owner of Stanley Black & Decker  
Canada (”SBDC”), another respondent in the present application.  
[20]  
SBDC provides centralized administrative support services to both SI and STS and other  
Canadian entities that are ultimately owned by SBD. Mr. Guretzki testified that SBD structures  
its Canadian operations this way in order to achieve economic efficiencies. The support services  
provided by SBDC include payroll, human resources, legal, and information technology. Lana  
Chappell is SBDC’s Director of Human Resources and she works out of SBDC’s office in  
Mississauga, Ontario. The Respondent Companies advise that, in relation to the relevant time  
period before us, there are no documents that set out arrangements by which SBDC provides  
these services to SI or STS. SBDC does not provide any NDT services.  
[21]  
As explained by Mr. Guretzki, SBDC provides the following services relating to human  
resources: sets up new hires in corporate computer systems; does background checks relating  
to candidates; helps with posting and advertising, but only with input from the specific entity at  
issue; and rolls out offer letters using a standard template, but based on the details provided by  
the individual entity. Selection for interviews and hiring is done by the specific entity and not by  
SBDC.  
[22]  
SBDC also provides employee handbooks for use by SBD’s various entities. The  
policies contained in them are developed by the broader Stanley group of companies in relation  
to the roughly 55,000 workers employed across Stanley’s broad corporate network. Mr. Guretzki  
testified there is further dial down done at the individual business level in relation to employee  
policies.  
[23]  
According to the ASF, employees of SI and STS are bound by the same SBDC policies  
in relation to discrimination, harassment, workplace violence, and confidentiality.  
The Union  
[24]  
The ASF contains the following details about the Union and its bargaining relationships  
with employers:  
Classification: Public  
7
1. The Quality Control Council of Canada (the "QCCC") is a joint venture of the  
International Brotherhood of Boilermakers (the "Boilermakers") and the United  
Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of  
the United States and Canada (the "Plumbers").  
2. Because of the specialized nature of non-destructive testing work, the Boilermakers and  
Plumbers established the QCCC to represent the unique interests of their members  
working in the non-destructive testing sector throughout Canada.  
3. The NDT Management Association (the "NDTMA") is an employers' organization  
representing member employers engaged in the non-destructive testing sector.  
4. The QCCC is vested with the exclusive authority to represent the Boilermakers’ and  
Plumbers' members employed in non-destructive testing positions including non-  
destructive testing and heat treatment technicians, trainees and helpers. These workers  
are members of the Boilermakers and/or Plumbers and also members of the QCCC  
(see: Collective Agreement among the QCCC, the NDTMA, and signatory employers  
(the "Collective Agreement"), preambles.)  
5. The QCCC has had a long bargaining history with the NDTMA dating back to 1975. The  
most recent Collective Agreement among the QCCC, the NDTMA, and signatory  
employers has an effective term of May 1, 2018 to April 30, 2021.  
6. In Alberta, the Boilermakers, Lodge 146 and the Plumbers, Locals 488 and 496  
operating as the QCCC are the certified bargaining agent for "the Non-Destructive  
Testing Workers Trade Jurisdiction comprising of all non-destructive testing construction  
work performed by employers in the Specialty Construction Sector, of the Construction  
Industry in the Province of Alberta" (Certificate No. 6). Employers affected by this  
certificate are represented by the NDTMA and bound by the Collective Agreement.  
8. The Boilermakers, Lodge 146 and the Plumbers, Locals 488 and 496, operating as the  
QCCC, is the affected trade union in respect of the applications at issue.  
[25]  
We turn to consider the two key companies at issue before us: SI and STS.  
Background Relating to SI  
[26]  
SI is an Alberta corporation that employed workers to perform NDT work. It was  
incorporated in April 2015. As indicated above, its President is Jeremy Guretzki.  
[27]  
SI’s original location was in Calgary and its first operations manager was Chris Leslie.  
His background was with a large oil and gas pipeline company and he was trained in AUT work.  
As explained by Mr. Guretzki, AUT is typically used for new construction of large diameter  
pipelines because the high cost of AUT methods makes it impractical for use on other smaller  
scale client work that does not involve mechanized welds. Mr. Guretzki testified that, given Mr.  
Leslie’s background, the work typically sought by SI was AUT work in relation to the new  
construction of large-diameter oil and gas pipelines.  
[28]  
Mr. Gurstzki’s evidence indicated that SI struggled to obtain work after its incorporation.  
It took a number of steps to address these difficulties. First, at some point in 2016, and after  
Classification: Public  
8
seeking the approval of SI US, SI obtained a radiography licence. Its licence was expanded in  
November 2016 and SI began to quote radiography testing methods in addition to other testing  
methods in the quotes it provided to prospective clients.  
[29]  
Obtaining this licence was a costly process, involving the assistance of a third party  
expert. Mr. Guretzki explained that new pipeline construction work can involve a mix of  
ultrasonic and radiography work and the method used can depend on customer preference, with  
some preferring to use both. SI wanted to ensure it could provide those additional services  
directly if requested. The focus of the business, according to Mr. Guretzki, was still to secure  
AUT work, but without having SI disqualified if there was a component to the work that required  
a different testing method.  
[30]  
To further support these efforts, SI began to store some radiographic equipment from  
the Parent Company so that it would be available for use in the event it was required for a job.  
SI had a vault constructed for the storage of this equipment. According to Mr. Guretzki, SI was  
never awarded any radiography work and its employees were not trained for this kind of work.  
[31]  
Second, on June 6, 2016, around the same time SI obtained its radiography licence, it  
entered into a Voluntary Recognition Agreement (the “VRA”) with the Union. As explained by  
Mr. Guretzki, it was hoped the VRA might open up some business opportunities for SI. The idea  
of entering a VRA was raised by Mr. Leslie for Mr. Guretzki’s approval. It was Mr. Guretzki , not  
Mr. Leslie, who signed the VRA with the Union.  
[32]  
As noted in paragraph 22 of the ASF, under the VRA, SI agreed to recognize the QCCC  
as the exclusive bargaining agent of all of its non-destructive testing, quality control, field heat-  
treatment and post-weld stress-relieving journeymen, technicians, trainees, and helpers  
employed in Alberta except office and sales staff and persons above the rank of supervisor.”  
[33]  
SI also agreed to be bound by the collective agreement between the QCCC, the  
NDTMA, and signatory employers. The scope clause of the collective agreement reads in part  
as follows:  
2.01(a)This agreement shall apply in respect to all nondestructive testing work  
and heat treatment work performed by the employer or by any person, firm or  
corporation owned or financially controlled by the employer in Canada…  
[34]  
Neither the VRA nor the collective agreement limit the scope of the Union’s  
representational rights to any particular type of testing method or industry. According to the  
Union’s evidence, which was not disputed by the Respondent Companies, the collective  
agreement applies to all NDT work, whether construction, non-construction, or maintenance.  
[35]  
A third step taken in response to SI’s financial losses was to move SI’s office to  
Edmonton. This took place in late 2016. The new arrangement saw SI sharing space with CRC  
in a newly constructed facility built by the latter. The idea was that SI would use space in that  
facility and, if its financial situation improved, it would pay rent to CRC. As it turned out, SI never  
paid any rent. Both companies had separate signs on the outside of the building. While the two  
businesses had some common areas and some shared equipment, each company was  
engaged in an entirely different kind of business. CRC’s business was renting pipeline  
equipment; it was not involved in NDT work.  
[36]  
After the VRA was executed, SI continued to bid on NDT work with limited success. In  
November 2016, SI’s operations manager, Chris Leslie, resigned. John Leask stepped into the  
Classification: Public  
9
role of interim operations manager for SI, splitting his time between SI and a business  
development role he had working for certain Portfolio Companies targeting offshore NDT work.  
Like Mr. Leslie, Mr. Leask’s background was in AUT. He sought the same type of work for SI  
that Leslie had: large diameter pipeline construction using principally AUT inspection methods.  
For the most part, Mr. Leask carried out his work for SI out of his home in southern Alberta.  
[37]  
SI never had much work. In fact, from the time of its inception in 2015 to its last job in  
April 2018, it performed work on only four projects, although some of that work was for large  
pipeline companies. SI’s last project had nothing to do with the kind of pipeline work targeted by  
the company and instead involved AUT inspection of existing waterline pipes. Moreover, and as  
acknowledged by the Respondent Companies in their written submission, only two of the four  
projects involved AUT work. The other two involved different kinds of ultrasonic work.  
[38]  
Following the completion of work on SI’s last project in April 2018, Mr. Leask continued  
to bid on work until August 2018, filing roughly seven additional bids. Those attempts proved  
unsuccessful. In January 2019, Mr. Leask was let go. Around September 2020, the SI sign on  
the CRC building was taken down.  
[39]  
The parties agree that despite the lack of work since April 2018, and even though SI’s  
operations essentially ceased around October 2018, SI’s corporate existence has been  
maintained “by the Stanley group of companies, in part for administrative purposes and, in part,  
in the event that a client or prospect solicits SI to bid on or conduct work”: ASF paragraph 27.  
Despite this agreement in the facts, the evidence before us indicated that no one is employed at  
SI and it is not actively soliciting business. Mr. Guretzki described the business as dormant and  
indicated SI was eventually taken off a broader corporate website given that there was “no one  
there to answer the phone.”  
[40]  
Given the limited work it performed, SI never had many employees. We focus on four SI  
employees whose employment appears to have later been transitioned to STS:  
Marlon Guretzki (“Marlon”): He is the brother of Jeremy Guretzki and according to the  
ASF and attachments to it, he was “employed by SI as AUT Supervisor” for certain  
periods from 2016 to 2019, when he resigned and became employed by Stanley  
Inspection US in 2019”;  
Charles Cizek: The ASF says he was hired by SI in July 2015 as an AUT Supervisor. He  
was trained in several methods of NDT work, including AUT and magnetic particle  
testing. He was away from work on an approved leave of absence from October 2017 to  
September 2018;  
Jordan Mancini: The ASF indicates he was hired by SI in June 2017 as a Scanner  
Operator and eventually became a Field Technician. His offer letter was signed by Mike  
Cook (see below) and indicates he would report to Mr. Cook. Mr. Mancini’s contract of  
employment for his work at SI indicated he was employed by SBDC;  
Mr. Mancini testified that travel arrangements, his reporting of sick days, payroll  
concerns, and submission of timesheets were to individuals who worked for SBDC. Mr.  
Mancini also maintained that any HR concerns that could not be handled by a supervisor  
were handled by SBDC. However, we received no evidence regarding what those HR  
concerns might have been and the nature of SBDC’s involvement in relation to them;  
Classification: Public  
10  
Michael Cook: The ASF indicates he was “hired by SI” in May 2015. His title in his offer  
letter is AUT & Integrity Inspection Technical Manager.The letter indicates Mr. Cook  
would report to Mr. Leask. Mr. Cook’s employment agreement indicates he was  
employed by SBDC.  
[41]  
In his evidence, Mr. Guretzki suggested that Mr. Cook was only on SI’s payroll for  
convenience. As explained by Mr. Guretzki, Mr. Cook worked for the broader corporate group.  
He described Mr. Cook as an AUT subject matter expert who worked in the Parent Company’s  
research and development area. He said Mr. Cook’s duties involved preparing and ensuring  
standard procedures and training for SBD’s global operations (described earlier in this decision).  
As Mr. Cook lived in Alberta, he was placed on SI’s payroll for administrative purposes only as  
there was no other Canadian payroll system under which he could be placed. Mr. Guretzki  
indicated that, while for payroll purposes he fell under SI, Mr. Cook reported to Mr. Guretzki and  
did no NDT work for SI. However, as we now outline, there was evidence before the Board  
indicating Mr. Cook acted in a high-level managerial capacity for SI.  
[42]  
First, Mr. Mancini’s offer letter, which appears to have been signed by Mr. Cook,  
suggests Mr. Cook was involved in Mr. Mancini’s hiring and his supervision. Mr. Mancini  
testified that he reported to Mr. Cook and described Mr. Cook as the in-house manager for SI.  
He also indicated Mr. Cook was involved in discussions relating to Mr. Mancini’s eventual  
transfer to STS, referred to later in this decision. Mr. Mancini’s evidence on these points was not  
challenged in cross-examination.  
[43]  
Second, one of the amendments to SI’s radiography licence, dated October 30, 2018,  
was addressed to Michael Cook at SI’s Edmonton location. Mr Guretzki explained this licence  
was issued at a time when SI was wrapping up its business. He said previous licences were  
sent to SI to the attention of Chris Leslie and another individual who was a paid third party  
consultant. Mr. Guretzki assumed that Mr. Cook was used as SI’s contact on the licence from a  
cost savings perspective as he was based in the Alberta region. What is noteworthy from our  
perspective is that Mr. Cook was used for an important senior level task in relation to SI a task  
previously undertaken by SI’s operations manager. It was also apparent from his evidence that  
Mr. Guretzki had no actual knowledge of why Mr. Cook was SI’s contact in relation to changes  
having to do with SI’s licence. At the relevant time, Mr. Leask continued to work as SI’s interim  
operations manager.  
[44]  
Third, in August 2018, Mr. Cook submitted a bid on behalf of SI. Based on the  
information contained in that bid, Mr. Cook was working out of SI’s Edmonton office. Mr.  
Guretzki indicated this proposal did not relate to NDT work, but rather a proposal for consulting  
services for a prospective client. Even if this document does not relate to the performance of  
NDT work, it again shows that Mr. Cook was being held out as working for SI in a high-level  
capacity in terms of interactions with potential customers who might be interested in NDT work.  
[45]  
So while we accept Mr. Guretzki’s evidence that Mr. Cook had a role relating to the  
standardization of practices for the broader Stanley corporate group, based on the evidence  
before us, we also find he was acting in a high level managerial capacity for SI.  
[46]  
There is also a discrepancy between the information in the ASF and the evidence  
provided by Mr. Guretzki in relation to the employment of his brother, Marlon. According to Mr.  
Guretzki’s evidence, Marlon did not perform work for SI and was on its payroll for convenience  
only. His evidence acknowledged that, while Marlon did work in Canada for a time, it was not for  
SI. He went on to explain that, when Marlon later began working for related companies in the  
Classification: Public  
11  
US, he was kept on SI’s payroll because it was the only available Canadian payroll. He paid  
dues to the Union when on SI’s payroll. Mr. Guretzki suggested this was a mistake and he  
should have been exempt. When asked about whether he approved Marlon’s placement on SI’s  
payroll, Mr. Guretzki said it was likely handled by someone else.  
[47]  
Given Mr. Guretzki’s evidence that he was not responsible for the day-to-day operations  
of SI and did not know the details of how his brother came to be on SI’s payroll, the apparent  
discrepancy between the ASF and Mr. Guretzki’s testimony, Marlon’s payment of dues to the  
Union, and Mr. Mancini’s evidence indicating Marlon had a role supervising one of SI’s four  
projects, we find it difficult to accept Mr. Guretzki’s evidence when it comes to Marlon’s  
employment with SI. We find he was employedby SI as an AUT Supervisor as indicated in the  
ASF, meaning that he received wages for his performance of work for that entity.  
[48]  
SI did not own any vehicles or specialized equipment to carry out its NDT work. All  
equipment was owned by the Parent Company. SI did use a vehicle owned by CRC for NDT  
work for a period of 10 days in September 2016.  
[49]  
To perform its NDT work, SI issued its own service proposals and invoices. Mr. Guretzki  
indicated he was not involved in that aspect of SI’s business and there was nothing about the  
documentary or other evidence to undermine his testimony that SI was responsible for obtaining  
its own business and invoicing customers for the work it performed.  
Background Relating to STS  
[50]  
From time to time in setting out the relevant evidence under this part of our decision, we  
make reference to drawing adverse inferences against STS. We have done so being mindful of  
these comments from Sopinka J.’s The Law of Evidence in Canada, (Markham: Butterworths  
Canada Ltd., 1999) at page 297:  
... an adverse inference may be drawn against a party who does not call a  
material witness over whom he or she has exclusive control and does not explain  
it away. Such failure amounts to an implied admission that the evidence of the  
absent witness would be contrary to the party's case, or at least would not  
support it.  
[51]  
Based on the ASF and Mr. Gurezki’s evidence, the concept of STS was proposed in late  
2017, when an individual named Michael Smith contacted Mr. Guretzki to propose a potential  
business opportunity. Mr. Smith’s expertise was in the inspection of welding and pipe joining  
with x-ray and radiography tools and technology. SI US agreed to Mr. Smith’s proposal and STS  
was incorporated in February 2018, with Mr. Smith as its operations manager. As noted above,  
Mr. Guretzki is the President of STS. Mr. Smith reported to him. STS’s assistant operations  
manager, Dustin Strabel, was similarly trained in the area of radiographic testing.  
[52]  
STS’s office was established in Olds, Alberta, in a former auto repair facility. Mr.  
Guretzki testified that the nature of the NDT work targeted by STS was call out work using  
principally radiography methods of NDT testing, along with some ancillary methods. The  
targeted client area, he maintained, was around Red Deer and Olds, where Mr. Smith had some  
connections to prospective clients based on his previous employment. To that end, Mr. Smith  
reached out to SI US with a request that STS be supplied with relevant NDT equipment.  
According to Mr. Guretzki, STS had a few assets of its own: a portable generator, a trailer, a  
utility terrain vehicle, and three exposure devices.  
Classification: Public  
12  
[53]  
Messrs. Strabel and Smith and two other individuals without any connection to SI were  
originally placed on the CRC payroll prior to the incorporation of STS. This was done on the  
understanding that STS would reimburse CRC once it was established. According to Mr.  
Guretzki, Mr. Smith and Mr. Strabel were charged with running and growing STS’s business,  
including hiring its workforce and obtaining clients. Mr. Guretzki said he had no involvement in  
STS’s day-to-day operations.  
[54]  
Based on a document attached to the ASF, STS has had roughly 40 employees since it  
first began its operations in 2018, including administrative staff and Messrs. Smith and Strabel.  
In the summer and fall of 2018, STS had roughly 11 employees performing NDT work.  
[55]  
For the purposes of our decision, we focus on the four individuals whose employment  
appears to have been transitioned from SI to STS:  
Michael Cook: The ASF, after noting Mr. Cook was hired by SI in 2015, goes on to note  
that he was subsequently moved to STS’s payroll in January 2020 pursuant to the  
direction of Mr. Guretzki. The ASF then states Michael Cook held and continues to hold  
the position of AUT & Integrity Inspection Technical Manager.  
In his evidence, Mr. Guretzki indicated that Mr. Cook’s payroll was switched from SI to  
STS for administrative payroll purposes only and Mr. Cook never did any work for STS.  
As we note under the bullet below, there is other evidence before the Board suggesting  
that Mr. Cook supervised employees at STS.  
Charles Cizek: The ASF, after noting Mr. Cizek was hired in 2015 by SI as an AUT  
Supervisor, states that he accepted a December 23, 2019 offer from STS for the same  
position and was moved to STS’s payroll effective January 6, 2020.  
During his evidence in chief, Mr. Guretzki maintained Mr. Cizek was moved to STS’s  
payroll system for administrative efficiency. An email from Mr. Guretzki to SBDC staff in  
December 2019, authorizing the transfer of Mr. Cizek from SI to STS, indicated that Mr.  
Cizek would report to Michael Cook.  
As noted earlier in this decision, Mr. Cizek was on an approved leave of absence from SI  
from October 2017 to September 2018. Mr. Guretzki maintained that when Mr. Cizek  
returned from his leave, there was no work at SI. According to Mr. Guretzki’s evidence,  
Mr. Cook (who we have found was, at that time, working in a managerial capacity for SI,  
but also working for the broader Stanley group) was of the view that Mr. Cizek’s skillset  
could be used elsewhere in Stanley’s global operations. Accordingly, he recommended  
Mr. Cizek for some offshore work. According to Mr. Guretzki, from September 2018 to  
2020, the majority of Mr. Cizek’s work involved NDT jobs outside the country. As  
explained by Mr. Guretzki, Mr. Cizek was initially kept on SI’s payroll in the event SI  
obtained work. In January 2020, Mr. Cizek was transitioned to STS’s payroll because it  
made no sense to administer two payrolls when SI was generating no revenue. During  
Mr. Cizek’s time working out of the country, dues continued to be remitted to the Union,  
but Mr. Guretzki maintained this was a mistake.  
However, while much of Mr. Cizek’s work was performed outside the country for other  
related entities, it also appears from the documentary evidence that Mr. Cizek performed  
work directly for STS while being on SI’s payroll. In particular, the documentary evidence  
Classification: Public  
13  
indicates that in September and November 2019, Mr. Cizek performed ultrasonic work  
for STS on projects for former SI clients.  
Mr. Smith, STS’s operations manager, did not testify. He could have provided evidence  
regarding the work that both Mr. Cizek and Mr. Cook did for STS. Mr. Guretzki, by his  
own admission, had nothing to do with the day-to-day operations of STS and was not in  
a position to speak about who might have supervised the ultrasonic work that STS  
engaged in. Moreover, neither Messrs. Smith nor Strabel had any knowledge of that  
method of NDT work. Based on the materials before us and the adverse inference we  
draw from the failure of STS to call Mr. Smith, we find Mr. Cizek performed NDT work for  
STS and Mr. Cook supervised the performance of that work.  
In terms of Marlon, the ASF makes no reference to him having worked for STS. Mr.  
Guretzki testified that he did not know whether his brother did any work for STS and  
noted Marlon was out of the country a lot and eventually took a position in the US.  
The exhibits before us suggest Marlon was in fact involved in STS’s operations. In  
August 2019, Marlon signed an offer letter in relation to an individual named Paul  
Spencer, offering him work as an AUT Operator for “Stanley Black & Decker Canada  
Corp (the “Company”), Stanley Technical Services Division.” The letter indicates Mr.  
Spencer would be “employed by the Company in the position of AUT Operator, reporting  
to Marlon Guretzki, or his designate.” Marlon’s title on the letter is “Advanced NDT  
Project Manager & Assistant Operations Manager, Stanley Black & Decker Canada  
Corp.”  
In his evidence, Mr. Guretzki maintained Mr. Spencer lived in Canada, but worked in the  
United States. According to Mr. Guretzki, he was placed on the STS payroll for  
convenience only. He went on in his evidence to indicate that his brother’s title in the  
offer letter was incorrect. He acknowledged that his brother might have been Mr.  
Spencer’s supervisor, but maintained that would not have been in relation to work in  
Canada. The ASF references an attached “list of STS’ employees.” The list identifies Mr.  
Spencer as having been an employee of STS in August 2019.  
Further evidence suggesting Marlon had a role working for STS in relation to AUT work  
is found in a May 2021 LinkedIn conversation between what appears to be Mr. Smith  
and Union Business Agent Matt Lyons, who was at the time investigating STS’s  
operations by posing as a prospective NDT employee interested in obtaining work at  
STS. In the context of that conversation, Mr. Smith indicates Marlon is acting as a  
supervisor for STS.  
Without hearing any evidence from Mr. Smith in relation to any of the above, and in light  
of Mr. Guretzki’s evidence that Mr. Smith ran his own shop and he was unsure what  
Marlon did for STS, it is difficult for us to accept Mr. Guretzki’s assertions about his  
brother’s circumstances in relation to STS. Indeed, at one point in his evidence, Mr.  
Guretzki denied that he had made any request that Mr. Spencer be placed on the STS  
payroll for administrative purposes and suggested Mr. Smith might know the answer to  
questions about who requested his particular payroll placement. All of this left us with  
little comfort that Mr. Guretzki had any real insight into his brother’s role with STS. Based  
on the documentary evidence, and the adverse inference we draw from the fact no one  
from STS testified, we find Marlon acted in a managerial capacity for STS.  
Classification: Public  
14  
Jordan Mancini: His first discussions about moving to STS were in September 2018. At  
the time, SI had performed no work since early in the Spring of 2018. According to the  
ASF, on November 2, 2018, Mr. Mancini accepted a position with STS as a Trainee. His  
contract of employment indicated he was employed by SBDC.  
The transfer of Mr. Mancini from SI to STS involved discussions between Mr. Mancini,  
Mr. Cook (who at the time was still with SI), and Michael Smith. In the context of those  
discussions, Mr. Mancini was told SI had no more work and was going to be dissolved.”  
He was informed he could continue his employment with “their non-union side.” When  
Mr. Mancini moved to STS, it was a seamless transition, with no gap in his pay or  
benefits and with credit for his previous service at SI. Mr. Mancini’s work email address  
did not change when he moved from SI to STS. His offer letter indicates he reported to  
Dustin Strabel.  
[56]  
Mr. Mancini testified that, in the weeks preceding his transfer to STS, he moved almost  
all of SI’s equipment to STS’s location in Olds, including laptops, radiography, and ultrasonic  
equipment. He did so at the direction of Mr. Smith, while still being employed by SI. Mr. Smith  
instructed Mr. Mancini to remove all SI decals from equipment SI had been using and replace  
them with STS decals.  
[57]  
Mr. Guretzki testified that none of the transferred equipment was owned by SI. Rather, it  
was owned by the Parent Company. He indicated that the equipment was moved to STS  
because it was no longer needed at SI. He acknowledged the move included AUT equipment  
and speculated that some of that equipment might have been left with STS in the event SI  
obtained more work. He went on to suggest other AUT equipment would have been shipped  
back to the Parent Company or to another entity needing it, given that STS was not at that time  
bidding on or targeting AUT work. Based on the wording of his evidence, it was apparent Mr.  
Guretzki had no firsthand knowledge about what happened to the AUT equipment. Mr. Guretzki  
maintained that any vehicles used by SI were refitted for use by STS with the labs and  
radiography equipment that it needed for its business.  
[58]  
In addition to moving the equipment, Mr. Mancini testified that he was instructed by Mr.  
Smith to set up the NDT equipment in STS’s shop for a planned open house. Based on Mr.  
Mancini’s evidence recounting his discussions with Mr. Smith, the purpose of the open house  
was to introduce Mr. Smith and STS to various pipeline companies to demonstrate the array of  
services that STS had to offer. Mr. Mancini indicated his display of equipment involved about a  
50/50 split between radiography and ultrasonic equipment. Mr. Mancini did not attend the event,  
but believed it was held in November or December of 2018.  
[59]  
Mr. Mancini’s evidence here was largely uncontested, although based on the exhibits  
before us, it appears the open house was held in early September 2018 and not as late in the  
year as Mr. Mancini indicated in his evidence. While Mr. Guretzki suggested that the focus of  
the open house was on radiography, and both exhibits 46 and 57 confirm that radiography was  
indeed a focus of the open house, he acknowledged that he did not attend the event and did not  
have actual knowledge regarding what was on display. By contrast, Mr. Mancini was tasked with  
displaying the equipment in preparation for the open house. In addition, we draw an adverse  
inference against STS on this point, since Mr. Smith, who would have been in a position to  
provide relevant evidence in response to Mr. Mancini’s testimony about the content of their  
conversations and the scope of the open house, did not testify.  
Classification: Public  
15  
[60]  
In late September 2018, the International Pipeline Expo (the “Expo”) was held in  
Calgary. Based on the testimony of Mr. Guretzski, this event was used to market STS’s  
business. The Event Guide for the Expo indicates that STS had a booth at the event. Later in  
the Event Guide, under the heading “Exhibitor Listings,” there is a reference to Stanley Pipeline  
Inspection in relation to the same booth number. There is no street address, but the company’s  
location is listed as Edmonton. The Event Guide contains the following description of services,  
making specific reference to STS:  
Stanley Technical Services offers full NDE services. X-ray, RTR (Real Time  
Radiography), AUT, PAUT [phased array ultrasonic testing], UT, MPI [magnetic  
particle inspection], LPI [liquid penetrant inspection], etc. Specializing in: New  
mainline construction, fabrication, integrity and call out work.  
[61]  
The phone number listed in the Event Guide is a cell number associated with John  
Leask in other exhibits before the Board.  
[62]  
Mr. Guretski explained the reference in the Guide to Stanley Pipeline Inspection was an  
error made by the event organizer. We accept that steps were taken to correct the Guide to  
refer to STS instead. It was John Leask who Mr. Guretzki tasked with contacting the event  
organizer to make the correction. Unfortunately, the call was made too late to change the  
company name. There was no suggestion in the evidence that anything other than the company  
name required changing.  
[63]  
Mr. Guretzki attended the Expo. STS had a booth where it displayed some equipment.  
John Leask also attended this event. In his direct examination, Mr. Guretzki indicated Mr. Leask  
was just a visitor who tagged along to the event because there may have been an extra ticket.  
Mr. Guretzki explained that, at the time, Mr. Leask was the interim operations manager for SI  
and had a role with the broader Stanley group’s offshore operations. In terms of Mr. Leask’s  
involvement in attempting to have Expo organizers change the relevant business name in the  
Guide, Mr. Guretzki maintained Mr. Leask was given this task because he had a connection  
with the organizers.  
[64]  
It is difficult for us to see Mr. Leask’s involvement in the Expo as not relating to the  
promotion of STS’s business. The whole reason for having a booth at the Expo was to market  
STS’s business. There is no evidence SI had a booth at the Expo to display its services. Mr.  
Guretzki’s evidence describing Mr. Leask as a mere visitor, tagging along because they might  
have had an extra ticket, appeared to be based on speculation rather than a true recollection of  
events. We infer that Mr. Leask attended the Expo for reasons that flow logically from his  
attendance i.e., he was there to help market STS’s business. We also note that the Expo  
Guide shows a description of STS’s services that extends beyond the kind of work Mr. Guretzki  
maintained was the core of STS’s business. As indicated above, there was no suggestion in the  
evidence that the Guide’s description of STS’s business was incorrect.  
[65]  
Mr. Mancini testified that in November or December 2018, Mr. Smith spoke to him about  
STS getting ready to bid on some big AUT jobs in pipeline. During the course of that discussion,  
Mr. Smith asked Mr. Mancini if he could put together a list of people who worked for SI so that  
STS would “look better for bidding.” Again, no evidence was led to contradict Mr. Mancini in  
relation to this evidence about his discussions with Mr. Smith. We also note that one of STS’s  
bids from November 2018, around the time of this discussion, lists Mr. Cizek as being  
“Proposed Personnel.Mr. Mancini noted in his evidence that Mr. Cizek was a specialized AUT  
worker with some certificates that were not common in the industry. While the bid itself appears  
Classification: Public  
16  
to relate principally to radiography work, it also contains some pricing for ultrasonic work,  
although not specifically AUT work. The work in question appears to relate to pipeline tie-in  
work.  
[66]  
One of the bids put into evidence in relation to STS was signed by Mr. Guretzki on  
September 6, 2018. There is pricing listed for both radiography and ultrasonic work. Mr.  
Guretzki said he probably signed this at the request of the customer. He acknowledged it was in  
relation to pipeline work. The Board notes that all other bids submitted in evidence in relation to  
STS were signed by either Mr. Smith or Mr. Strabel.  
[67]  
These bids from the Fall of 2018 were not the only ones to provide pricing for ultrasonic  
work. Many of STS’s bids included such pricing in addition to prices for radiography work. Mr.  
Guretzki maintained the ultrasonic quotes were provided as secondary options to customers.  
His evidence also indicated it was common for NDT companies to offer all methods of work to  
customers as they may have preferences in terms of the methods used and it opens up  
business opportunities for NDT companies. Indeed, STS submitted written practices and  
procedures to the Alberta Boilers Safety Association in relation to a broad array of NDT  
methods, including ultrasonics, to ensure the company was approved to perform a full range of  
NDT work.  
[68]  
Mr. Guretzki maintained the type of ultrasonic work targeted by STS was neither AUT  
work nor pipeline construction work. Yet, based on the description of STS’s business in the  
Expo Event Guide and the uncontradicted evidence of Mr. Mancini, STS certainly appeared to  
be pursuing AUT pipeline construction work as early as the Summer and Fall of 2018. We would  
add the invitation to the STS’s open house, held in early September 2018, also suggested STS  
was targeting largescale pipeline work. In referring to its radiography equipment, the document  
said:  
The development of this product is helping us grow our current inspection market  
particularly on large diameter pipes. This is because we are using the very latest  
technology in digital detectors, and have the ability to carry out inspection on  
pipelines up to 48 inches in diameter!  
[69]  
Not only was STS bidding on ultrasonic work in 2018, but based on invoices entered into  
evidence, it was performing that kind of NDT work by mid-November 2018. While the work at  
issue does not appear to have been pipeline construction work, it was for a former pipeline  
client of SI’s.  
[70]  
STS’s performance of ultrasonic work continued in January 2019. An employee named  
Mike Kimber is referenced as the technician on related client-costing documents. While those  
documents suggest ultrasonic work was performed, Mr. Guretzki noted it was not AUT work. We  
note Mr. Kimber is an individual who Mr. Guretzki maintained was only on STS’s payroll for  
administrative purposes because he worked outside Canada. That assertion appears to have  
been inaccurate.  
[71]  
In addition to the work in January 2019, and as noted above, the documentary evidence  
indicated that in September and November 2019, Mr. Cizek performed ultrasonic work for STS  
on projects for former SI clients. Again, Mr. Guretzki noted this was not AUT work.  
[72]  
According to Mr. Guretzki, it was not until 2020 that STS obtained work on a couple of  
AUT projects. Mr. Guretzki indicated the core of STS’s business continues to be radiography,  
with about 5-10% of STS’s revenue being generated by AUT work at the time of hearing. He  
Classification: Public  
17  
further maintained STS could not have performed AUT work in 2018 and 2019 because it did  
not have employees with the skillset at the time. Yet, STS appears to have had Mr. Cizek and  
Mr. Kimber available to work in 2019. According to documents attached to the ASF, Mr. Kimber  
was hired by STS in August 2018. Both he and Mr. Cizek had the skillset to perform AUT work  
and both appeared to perform work for STS when not working outside the country. Further,  
based on the only evidence before us, STS appears to have been targeting AUT work in the Fall  
of 2018 and it issued a proposal for AUT work in June 2019.  
[73]  
Mr. Guretzki acknowledged that some of STS’s customers were former SI customers.  
Based on the documentary evidence, STS started performing work for these customers shortly  
after the open house and Expo events. Some of that work involved ultrasonic testing. Mr.  
Guretzki testified that none of this work involved AUT testing and he maintained it involved  
integrity work as opposed to new pipeline construction.  
[74]  
There was evidence to suggest STS obtained work from SI’s former clients without it  
bidding on that work. All of STS’s bids from 2018 and 2019 were entered into evidence. In  
addition, all STS invoices for work performed for three of SI’s former clients from 2018 through  
2020 were also entered. A comparison between the customers billed and those in respect of  
whom bids were submitted shows no corresponding bid for some of the work.  
[75]  
In his evidence-in-chief, Mr. Guretzki acknowledged that, while STS manages its own  
business development and projects, John Leask and others from SBD’s broader corporate  
network, including its technical people (presumably Mike Cook), do what they can to provide  
introductions to customers. We have no evidence regarding the nature of the actual assistance  
that might have been provided to STS by these individuals since no one from STS testified.  
[76]  
STS did not have a radiography licence until February 12, 2019, about a year after it was  
incorporated. Mr. Guretzki speculated that STS likely relied on SI’s radiography licence to carry  
out its radiography work prior to February 2019, when its own licence came into effect. No one  
from STS testified and we infer that STS relied on SI’s radiography licence to seek and perform  
radiography work during the time period before it obtained its own licence. Based on the  
invoices entered into evidence, the amount of work that STS performed while relying on this  
licence was not insignificant.  
Other Evidence Relating to Both SI and STS  
[77]  
The logos used by SI and STS are very similar. Mr. Guretzki testified that the use of the  
name Stanley is controlled by the broader corporate entity. It requires the use of a specific font  
and colours. It also requires the capitalization of the word “Stanley.” As a result, the yellow and  
black shades and font used in the STS and SI logos are identical. Both logos are rectangular in  
shape. SI uses a yellow background and black lettering; STS uses the opposite. The word  
“STANLEY” appears in both logos, with the remaining words “Inspection” or “Technical  
Services,” as the case may be, in small letters. Mr. Guretzki testified that the STS logo began to  
be used in the first or second quarter of 2018. He indicated the logos for Portfolio Companies  
are approved through his office.  
[78]  
On at least one occasion, STS used SI’s colours in its marketing materials. Specifically,  
the invitation to the STS open house, held in September 2018, used the SI’s colours (i.e., black  
writing on a yellow background). This document also makes a reference to SI in the context of  
describing certain radiography equipment. Mr. Guretzki was unable to explain why this was  
done and had no involvement in the drafting of the invitation.  
Classification: Public  
18  
[79]  
Both SI and STS have common procedures entitled “Manual Ultrasonic Inspection  
Procedure CSA-Z662” applicable to NDT work. These were designed by Mr. Cook in relation to  
his work with SI US.  
[80]  
Both STS and SI use similar language in their service proposals. For example, both  
include the following language: “The mission of [STS/SI] remains unchanged: to provide the  
highest quality NDE services at a competitive price.”  
[81]  
SI US maintains a global website for most of its inspection businesses. SI was listed on  
this site, but STS was not. STS does not maintain a website in respect of its business. SI and  
STS use a common email domain: @sbdinc.com.  
[82]  
Mr. Guretzki denied that allowing STS to set up its own business was motivated by a  
desire to run a non-union shop. He maintained the reason for allowing STS to set up its own  
shop rather than simply have Mr. Smith operate under the SI banner was based on Mr. Smith’s  
desire to have “his fingerprints on the business” and “control his own business.In response to  
questions from the Union about why not just set up the shop in Olds under Mr. Smith’s  
leadership under the SI name, Mr. Guretzki said “that was not the option chosen.”  
Timing of the Union’s Application  
[83]  
The Respondent Companies argue the applications should be dismissed for delay. We  
address the relevant facts in relation to that issue here.  
[84]  
Based on the evidence of Garon Robb, the QCCC’s Western Canadian Business  
Representative, the Union first began to hear concerns about STS in the summer of 2018.  
These concerns were generated by Union members, including SI employees.  
[85]  
Union Business Agent, Matt Lyons, began to look into the concerns in October 2018.  
Around this time, Mr. Lyons received a copy of the Event Guide for the Expo, held in late  
September 2018.  
[86]  
In October 2018, the Union obtained photographs of NDT vehicles with STS logos on  
them at STS’s shop in Olds. Around the same time, the Union had information suggesting that  
STS trucks were spotted outside SI’s shop in Edmonton. Concerned members provided the  
Union with information, including information suggesting that assets were being moved from SI  
to STS. Members also complained that STS was submitting bids in relation to the same type of  
work SI had competed for.  
[87]  
Following October 2018, there were no documents before the Board to suggest any  
further investigation was performed by the Union until almost a year later when, in August 2019,  
some corporate searches were done. In September 2019, Mr. Lyons undertook some additional  
steps, assuming a fake persona to ask questions relating a job posting he had seen for Stanley  
Black & Decker.  
[88]  
When asked during cross-examination about what was done between the initial  
investigation in October 2018 and the next steps close to a year later, Mr. Lyons initially  
explained that he became busy and needed to consult a lawyer. Later in his evidence, he  
suggested that the Union continued to investigate the matter during the intervening time.  
However, he was unable to point to any document demonstrating that anyone from the Union  
Classification: Public  
19  
took steps to look into the matter other than the document from September 2019 when he  
responded to a job posting.  
[89]  
The common employer application under section 192 was filed on March 26, 2020. On  
March 2, 2021, the Union amended its application to add section 46, the successorship  
provision. It was not until the start of the hearing that section 47 was added.  
[90]  
The sign outside SI’s Edmonton shop did not come down until 2020. Dues remittance  
forms received by the Union from SI indicate that dues continued to be remitted in relation to Mr.  
Cizek from September 2018 through to January 2019. Remittance forms from February 2019 to  
January 2020 reference the relevant employer as SBDC. January 2020 is the last dues  
remittance form in relation to Mr. Cizek. Based on the remittance forms, dues ceased to be  
remitted for Mr. Mancini in November 2018. No dues were remitted for Marlon following April  
2018, roughly the time SI’s work was completed on its final project.  
[91]  
There was nothing in the evidence of either Mr. Lyons or Mr. Robb to indicate that the  
timing of the Union’s applications was impacted by SI continuing to remit dues in relation to Mr.  
Cizek or the continued display of SI’s shop sign.  
Decision  
Successorship Application  
[92]  
While its initial successorship application, filed in March 2021, alleged that STS and / or  
CRC were successor employers to SI, during its closing argument, the Union withdrew its  
request for relief against CRC. Thus, the only allegation before us in relation to section 46 is that  
STS is the successor employer to SI.  
[93]  
Section 46 provides as follows:  
46(1) When a business or undertaking or part of it is sold, leased, transferred or  
merged with another business or undertaking or part of it, or otherwise disposed  
of so that the control, management or supervision of it passes to the purchaser,  
lessee, transferee or person acquiring it, that purchaser, lessee, transferee or  
person is, where there have been proceedings under this Act, bound by those  
proceedings and the proceedings shall continue as if no change had occurred,  
and  
(a) if a trade union is certified, the certification remains in effect  
and applies to the purchaser, lessee, transferee or person  
acquiring the business or undertaking or part of it, and  
(b) if a collective agreement is in force, the collective agreement  
binds the purchaser, lessee, transferee or person acquiring the  
business or undertaking or part of it as if the collective  
agreement had been signed by that person.  
[94]  
Information Bulletin #21, entitled Successor Employers, provides a good summary of the  
relevant law:  
Classification: Public  
20  
Section 46(1) of the Code covers the sale, lease, transfer or other disposition of a  
business or undertaking. Broken down into its basic parts, a successful  
application under section 46(1) requires three elements:  
1. a sale, lease, transfer or other disposition;  
2. of a business or part of a business;  
3. so the control of that business passes to the purchaser.  
See: Alberta Projectionists, Local 302 v. H.J.M. Investments Ltd. [1982] Alta.  
L.R.B. 82-018.  
The Board examines applications to ensure a business (or part of one) was  
transferred. A business is a combination of physical assets and human initiative.  
It is a dynamic activity, a going concern, or a functioning economic vehicle.  
The Board focuses on the vehicle through which work is done or functions are  
performed. Less emphasis is placed on the functions or work performed by  
employees. This is because a transfer of work functions alone may not be  
enough to find a successorship. For example, a business could lose a contract to  
a competitor. While the competitor would then perform the work, clearly no part  
of a business was transferred to them.  
The Board also looks at whether there has been some continuity of the work  
operations normally associated with that business. This is the case whether the  
whole business is sold or only part of it. What must be transferred is a portion of  
the business capable of being defined and identified as a functioning entity. It  
must be a coherent and severable part of the business. Each case turns on its  
own facts. See: CUPE v. Metropolitan Parking, supra and ATU 1374 v.  
Greyhound Lines of Canada Ltd. and Ferguson Bus Lines Ltd. [1991]  
Alta.L.R.B.R. 646; W.W. Lester v UA 740 [1990] 76 DLR (4th) 389; HSAA v.  
Dynacare Kasper Medical Laboratories et al. [1997] Alta.L.R.B.R. 57; HSAA v.  
Dynacare Kasper Medical Laboratories et al. [1997] Alta.L.R.B.R. 464.  
The Board determines whether a sale of a business occurred by examining  
several factors. These factors include the transfer of:  
fixed assets such as buildings, machinery, fixtures, or leasehold improvements;  
goodwill;  
logo or trade mark;  
customer lists;  
accounts receivable;  
existing contracts;  
inventory;  
an agreement not to compete;  
an agreement to maintain a good name;  
business know-how and reputation embodied in key personnel;  
work; and  
location.  
Classification: Public  
21  
Ultimately, the Board asks itself whether enough significant parts of the business  
have passed from the predecessor to the successor to warrant a successorship  
declaration.  
[95]  
The fact-driven and contextual nature of the analysis under section 46 cannot be over-  
stated. The particular industry at issue is part of that context. As noted in Construction Workers  
Union (CLAC), Local 63 & 65 v. Hartland Pipeline Services et al., [2001] Alta. L.R.B.R. 296  
(“Hartland”):  
59  
The cases repeatedly make the point that whether a "business," a "part of  
a business" or something less than that has been transferred, is essentially a  
fact-driven determination. There is no formula that can reliably be applied to an  
individual case. Industries differ greatly as to what assets or intangibles are most  
important to conveying a business as a going concern. Employers within  
industries differ greatly as to the qualities or features that are most important to  
meeting their business goals. Yet one can make some generalizations, and it is  
generally the case that the construction industry has some unusual features that  
weigh heavily in successorship determinations. Employers operate from bid to  
bid, contract to contract, expanding their operation with short-term labour,  
subcontractors, and rented equipment when necessary, and contracting it by  
layoffs when activity is slow. Barriers to entry are relatively low; investment in  
realty, inventory, sophisticated equipment and permanent labour need not be  
large. Excepting the very large national and transnational construction  
contractors, construction employers tend to be local or regional in their  
operations. It follows that in any one area, owners, engineering firms and  
contractors often know each other well. Industry relationships are uncommonly  
personal. Goodwill is extraordinarily important to winning contracts, and goodwill  
predominantly takes the form of the experience, knowledge, reputation and other  
personal qualities of the senior managers of the construction contractor. These  
factors may be so important to the success of an individual construction business  
compared to other factors, that the senior manager or managers really embody  
the "business"; where they go, the business goes. This is the "key man" concept,  
which Adams in Canadian Labour Law, 2d ed. (Aurora, Ont.: Canada Law Book:  
2000), refers to in the following terms (at ¶15.530):  
Whether or not there is an exchange of physical assets in a transaction, the  
board has repeatedly found an applicable successorship when there is an  
acquisition of key managerial personnel. This is considered "the essence of  
a business" in the bid-oriented sector of the construction industry.  
60  
Another point to note about successorships in the construction industry is  
that the industry lends itself to informal transfers of the things that make up a  
construction business. It is common for construction contractors to operate  
through groups of companies in order to spread risk, limit liability, minimize tax,  
or meet other valid business objectives. Within one construction group there can  
be many companies, each possessing their own bank account and payroll  
systems, but sharing office space, office equipment and personnel, renting  
equipment from a common pool, and sharing the skill and efforts of the  
ownership group and senior management. Given this, and because of the  
unusual importance of intangible assets to a construction business, it is  
extraordinarily easy to transfer the key elements of the business between the  
Classification: Public  
22  
legal entities in the group, without any formal conveyance. It may be as simple as  
a key person stopping work for one company, starting work for another, and  
going onto the payroll of the “new” employer.  
[96]  
The Board has interpreted the concepts of a sale, lease, transfer, or other disposition  
under section 46 in a broad and purposive way that focusses on substance over form, an  
approach founded on these comments from the Supreme Court of Canada’s decision in Lester  
(W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and  
Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, at pages 674-676:  
In keeping with the purpose of successorship provisions - to protect the  
permanence of bargaining rights - labour boards have interpreted "disposition"  
broadly to include almost any mode of transfer and have not relied on technical  
legal forms of business transactions. As explained by the Ontario Board in United  
Steelworkers of America v. Thorco Manufacturing Ltd. (1965), 65 C.L.L.C.  
¶16,052, an expansive definition accords with the purpose of the section - to  
preserve bargaining rights regardless of the legal form of the transaction which  
puts bargaining rights in jeopardy.  
Notwithstanding the broad discretion in labour boards to determine whether or  
not the mode of disposition constitutes successorship, the fact remains that in  
virtually all jurisdictions something must be relinquished by the predecessor  
business on the one hand and obtained by the successor on the other to bring a  
case within the section.  
The appellant union urged on us the following definitions of "disposition":  
... to alienate or direct the ownership of property as disposition by will; to  
exercise finally, in any manner, one's power of control over; to pass into  
control of someone else; to alienate, relinquish, part with, or get rid of; to  
put out of the way; to finish with; to bargain away; to transfer into new  
hands or to the control of someone else (as by selling or bargaining away);  
relinquish the whole (...)  
By any of these definitions it is clear that disposition must mean that in some way  
the first company no longer has the business or part of the business, which has  
been conveyed to the second company. [Emphasis in original.]  
[97]  
Flowing from the above, this Board has found that the wording of section 46 does not  
require a direct transfer of assets from a predecessor to the successor: Hartland, paragraph  
102. As noted in CEP Local 255G v. Central Web Offset Ltd. et. al., [2008] Alta. L.R.B.R. 289  
(“Central Web”), at paragraph 104: “The key concept is that there must be a transfer an  
acquisition coupled with a relinquishment – of a ‘business’.”  
[98]  
When looking at the particular context of this case, we note the following:  
It is apparent from the evidence that the NDT industry is one where contractors largely  
operate bid to bid or contract to contract, expanding and contracting their workforces as  
the available work demands;  
Classification: Public  
23  
Based on the evidence of Mr. Guretzki about the start-up of both SI and STS, barriers to  
entry are relatively low given the common approach in this industry of having centralized  
ownership of costly equipment that is deployed to related entities as needed;  
NDT work takes place in the field and shops are used principally for storage,  
deployment, and administration. As a result, realty does not appear to hold the kind of  
relevance it might in another industry;  
Goodwill and reputation in this industry are important to securing future work, with the  
NDT industry being a small and specialized one; and  
This is a case involving the alleged transfer of a business between employers that are  
not at arm’s length. We also note this is an industry where few assets may be owned by  
individual entities. As noted in the Board’s jurisprudence, this context “justifies the  
highest level of scrutiny of the business realities’ of the parties’ dealings, in order to  
ensure that bargaining rights are not lost by a de facto transfer of the business  
accomplished wholly or partly by informal means”: Central Web, at paragraph 115.  
[99]  
Given this background, we cannot help but note that many of the key elements of SI’s  
business landed in the hands of STS to use in the running of its newly created operation. In  
particular, we consider the following.  
[100] First, SI’s radiography licence was effectively transferred to STS for its use until it was  
able to obtain its own licence in February 2019. SI had no use for the licence after it stopped  
bidding on work in August 2018. The licence had been an important component in SI’s quest to  
obtain more work. It was costly for SI to obtain that licence, and it was obtained even though SI  
was struggling to attract work and not making money. SI kept that licence up-to-date, which  
signals the importance that SI placed on it. Radiography was the principal part of STS’s  
business. SI’s radiography licence was vital to STS’s early success in obtaining work and that  
work no doubt, in turn, provided STS it with a good foundation for its pursuit of future work  
opportunities.  
[101] The Respondent Companies argue that STS’s use of the radiography licence does not  
point towards a successorship, relying on this Board’s comments in B.B.F. Local 146 v. Western  
Inspection Ltd., [2007] Alta. L.R.B.R. LD-036, paragraph 46 (“Western”). However, the  
referenced comments relate to a common employer rather than a successorship application.  
Specifically, in Western, the union argued that the use by a unionized company of a non-union  
company’s exposure device, in light of the regulatory licensing scheme in place in relation to the  
use of such devices, gave the non-union company control over the workers using the device as  
though it was in an employer-like relationship with those individuals. The Board disagreed,  
saying that the regulatory obligations did not mean the non-union entity was involved in the day-  
to-day management of the workers in question. That is a far different issue than the one before  
us in the context of a successorship application, where we are not assessing common control or  
direction. Instead, the issue here is whether there has been a transfer or disposition of a  
business or part of a business. As we find above, the radiography licence was effectively  
transferred from SI to STS for use by the latter in establishing and growing its business until it  
could obtain its own licence in February 2019. That transfer during the establishment of STS is  
an important part of the factual matrix in this case.  
[102] Second, bids and other materials show that both entities relied heavily on the Stanley  
name, reputation, and resources to attract and perform work. STS went so far as to include a  
reference to SI in its advertising materials for its September 2018 open house. Further, those  
materials also picked up SI’s motif of a yellow background with black writing when referencing  
Classification: Public  
24  
STS, displayed prominently across the top of the open house advertising materials. This was  
particularly significant given that the subtle variations in SI’s and STS’s logos were intended to  
avoid confusion between the two companies “in the market space,” according to Mr. Guretzki’s  
evidence. During his testimony, Mr. Guretzki was at a loss to explain why STS had used SI’s  
name and colours in its open house invitation. Having had no one attend to testify on behalf of  
STS, we draw an adverse inference that it was done to target business from pipeline customers  
familiar with SI. That inference is generally consistent with the evidence of Mr. Mancini and the  
Expo Event Guide, both of which suggested STS was targeting pipeline work.  
[103] Third, key personnel who worked for SI were transitioned to STS to perform work,  
regardless of whose payroll they might have been on at the time of the work. In particular, the  
evidence suggested that both Mr. Cizek and Marlon performed work for STS, with Marlon acting  
in a managerial capacity. The evidence further suggested that STS used the names of both  
individuals to market its operations to customers and prospective employees.  
[104] No one from STS testified to explain the involvement of Mr. Cizek and Marlon in STS’s  
business. While Mr. Guretzki suggested they had little or no involvement with STS, he was not  
involved in STS’s day-to-day operations. As noted elsewhere in this decision, these  
considerations lead us to draw an adverse inference that Marlon and Mr. Cizek were involved in  
STS’s operations and helped establish STS’s credibility with clients wanting ultrasonic services  
and prospective employees looking for work. Added to this, we note that Mr. Cook, whose  
managerial services were formerly provided to SI, appears to have been transitioned away from  
SI to STS, apparently having a role supervising Mr. Cizek in relation to his work with STS.  
[105] We would add that both Marlon and Mr. Cizek were highly skilled NDT operators,  
specifically in the field of ultrasonics, where Messrs. Smith and Strabel had no experience. As  
noted in Mr. Robb’s evidence, the Alberta NDT community is small, with high demand for  
employees with NDT skillsets. STS’s use of both Mr. Cizek’s and Marlon’s names to promote its  
business highlights their importance to STS’s operations in terms of being able to attract  
ultrasonic work. It matters little that Mr. Cizek and Marlon might have also worked elsewhere in  
SBD’s global operations. The point is that, when available, they appear to have worked for STS  
and were apparently used to promote its business.  
[106] In addition, the evidence supported the view that, when Mr. Leask’s efforts in finding  
business for SI came to an end in August 2018, he was put to work assisting STS obtain work.  
Which corporate hat Mr. Leask wore when he undertook these efforts matters little given the  
non-arm’s length relationship between all the entities at issue. Based on the only evidence  
before us, along with the adverse inference we draw from the failure of anyone from STS to  
testify, we infer Mr. Leask helped STS develop its business in the ultrasonic sphere, where  
Messrs. Smith and Strabel had no connection or background. For the reasons stated elsewhere  
in these reasons, we do not accept Mr. Guretzki’s evidence that Mr. Leask attended the Expo as  
a mere visitor. We would add that Mr. Guretzki essentially acknowledged in his evidence that  
people like Mr. Leask and technical people like Mr. Cook would likely have been involved in  
helping STS obtain work.  
[107] We are alive to Mr. Guretzki’s evidence that Messrs. Smith and Strabel used their own  
connections from their previous employment to bring work to STS. But, we also cannot ignore  
that STS was up and running with ultrasonic and other work from former SI customers by  
November 2018 without any evidence from either Messrs. Smith or Strabel about how that  
came to be. The amount of work was significant, with numerous invoices being issued to former  
SI customers in November and December of 2018. Given the evidence relating to the Expo and  
Classification: Public  
25  
the open house, it looks very much like STS was trying to access work from customers that Mr.  
Smith and Mr. Stabel were unable to garner on their own. Without evidence from STS to explain  
these circumstances, we infer that Mr. Leask did exactly what the evidence suggests he  
assisted STS in obtaining that work. Again, we do not find it relevant whose payroll he might  
have been on at the time.  
[108] We also take into account that Mr. Mancini’s employment was transferred from SI to  
STS. While this was a minor part of any transfer of a business that might have taken place in  
this case, it still factors into our analysis. Mr. Mancini was an employee with some  
understanding of ultrasonics and SI’s business. That knowledge appears to have been tapped  
by Mr. Smith for use in furthering STS’s business opportunities.  
[109] The Union relies on the assets formerly used by SI being transferred from SI to STS. Mr.  
Mancini’s evidence indicated that most of SI’s equipment was moved to STS’s location. This  
evidence was undisputed. While STS’s early work did not involve AUT testing methods and we  
accept that not all the AUT equipment may have remained with STS, STS clearly used other  
equipment that had come over from SI’s shop, including radiography and other kinds of  
ultrasonic equipment that had been available for SI to use for its business. Without the  
equipment that came from SI’s shop, STS’s operations would not have been able to get off the  
ground when they did. In addition, despite Mr. Guretzki’s assertions to the contrary, the  
evidence before us indicated that STS was targeting AUT work as early as the Fall of 2018.  
And, by June 2019, it was bidding on that kind of work. In the circumstances, the AUT  
equipment that Mr. Mancini moved to STS’s shop was far from irrelevant to STS’s business.  
[110] The Respondent Companies say the equipment has no relevance to the consideration of  
whether STS is a successor employer because these assets were not SI’s to give. However, as  
noted above, the Board adopts a cautious approach when it comes to successorship  
applications involving related companies to ensure “bargaining rights are not lost by a de facto  
transfer of the business accomplished wholly or partly by informal means”: Central Web,  
paragraph 115. Examples of the high level of scrutiny the Board uses when examining the  
business realities of non-arms length parties can be seen in Hartland, Central Web, and  
IAMAW Local 99 v. Finning and O.E.M. Remanufacturing et. al., [2005] Alta. L.R.B.R. 79;  
upheld [2007] Alta. L.R.B.R. 174.  
[111] Given the corporate interconnectedness of all these entities, it matters little that the  
assets were owned by the Parent Company. The fact remains that they were transitioned away  
from SI and promptly provided to STS for its use. Highlighting the informal nature of the  
relationship between all these companies, Mr. Guretzki indicated in his evidence that there are  
no agreements reflecting the payment for the use of the Parent Company’s equipment by the  
Portfolio Companies.  
[112] In finding as we have, we are alive to the notion that sharing elements of a business is  
not the same as disposing of the elements of a business. As noted in Lester, there must be a  
relinquishment of elements of a business by one entity and an acquisition of them by another  
before a successorship declaration may issue.  
[113] We are also mindful that SI maintained a legal existence throughout these events. The  
parties specifically agreed SI’s business was dormant and not defunct. Yet, SI’s last bid was  
issued in August 2018. It took no steps as far as we are aware to obtain work after that time. We  
find that SI effectively ceased to be a going concern in the Fall of 2018. All that remained was a  
payroll system operated by SBDC that paid SI personnel to the extent they might perform work  
Classification: Public  
26  
for another related entity and an empty shop that was presumably reabsorbed by CRC, even if  
SI’s sign remained on the building for a time. By January 2019, Mr. Leask had lost his job as  
SI’s acting operations manager. These facts do not support the notion of a sharing of the Parent  
Company’s equipment. Indeed, they are far more consistent with a channeling of resources  
away from an entity that has ceased operations to give lifeblood to a new up-and-coming  
operation. At the end of the day, we simply note that an acquisition and relinquishment can  
occur in fact, without any formal transfer, even if the predecessor company remains in  
existence: Hartland, at paragraph 72.  
[114] Even if we are wrong in our analysis in relation to the transfer of equipment, it simply  
means that the transfer of other elements of the business takes on greater significance in the  
analysis under section 46.  
[115] This leads us to consider one element of SI’s business that did not transfer to STS: the  
shop. While we take this into account, in particular noting that each shop had a vault to house  
radiography equipment and the shops were located in different parts of Alberta, in the overall  
analysis here, we give this element little weight. SI’s shop was a shared space in CRC’s  
building. Mr. Leask effectively ran SI’s business from his home in southern Alberta. STS’s shop  
was in Olds. Mr. Guretzki explained this was for two reasons. First, it was close to the  
residences of both Messrs. Smith and Strabel and, second, it was hoped STS might obtain  
some work from local area businesses. However, we heard very little else that spoke to the  
significance of these shops or their locations in terms of carrying out the businesses at issue.  
Based on the evidence before us, NDT work takes place in the field and the shops are used  
principally to house and deploy resources.  
[116] The Respondent Companies suggest that a business must be profitable in order to be  
disposed of. That is not the case. For a successorship to occur, it “is sufficient that the  
transaction has put into the hands of the transferee an economic organization with the ability to  
obtain new work and carry it out”: Hartland, at paragraph 118. That is what happened in this  
case: SI ceased operating and STS was able to obtain and perform work because it received  
SI’s radiography licence, the equipment, a boost of goodwill, and the assistance of SI’s key  
personnel.  
[117] A further argument made by the Respondent Companies is that SI never engaged in  
radiography work and it had no such business to transfer to STS. We would not view this case  
through such a narrow lens. SI offered a range of NDT services to customers and, based on the  
evidence we heard, it would have taken any NDT work that came its way regardless of the  
method or industry. It obtained its radiography licence and stored radiography equipment for the  
specific purpose of obtaining that work. The reality is that SI had a NDT business and the key  
components of that business were transferred to STS for its use. We would add that the Union’s  
bargaining rights covered the full gamut of NDT work, in every possible industry in which it might  
take place.  
[118] The evidence also shows that STS did not exclusively pursue radiography work. From its  
inception, STS was held out as an entity equipped and qualified to perform ultrasonic testing. To  
that end, it submitted written practices and procedures to the Alberta Boilers Safety Association  
in respect to a broad range of NDT methods, including ultrasonics, to ensure it was ready to  
take on that work if the opportunity arose. It routinely quoted rates for ultrasonic testing and  
equipment. Mr. Smith asked Mr. Mancini to provide the names of individuals STS could use  
when bidding on ultrasonic work. It is clear Mr. Smith was actively seeking out that work. Early  
Classification: Public  
27  
bids issued by STS included quotes for ultrasonic services and equipment. By November 2018,  
STS was invoicing a former SI customer for work that included ultrasonic testing methods.  
[119] Taking into account all the above features of this case, we find SI’s business was  
effectively transferred to STS, giving it a functioning economic vehicle to pursue NDT work. SI  
was then allowed to falter despite its bare existence being maintained.  
Common Employer Application and the Issue of Delay  
[120] In closing argument, the Union withdrew its requests for relief against CRC and SBDC in  
relation to the common employer provisions. While there was some nuance to the Union’s  
position as it related to SBDC under section 163.6, we view the ASF and our findings above as  
having resolved the issue.  
[121] What remains is the Union’s common employer application vis-à-vis SI and STS under  
sections 47 and 163.6 of the Code. We decline to address those applications given our finding  
of a successorship and given our concern, expressed below, about the Union’s delay in bringing  
these applications.  
[122] The Union first began to hear concerns about STS operating in the NDT field in the  
Summer of 2018. These concerns were raised by Union members, including members who had  
worked for SI. Mr. Lyons began to look into these concerns in October 2018. At this time, he  
had information suggesting a transfer of assets, and the existence of a related non-union entity  
pursuing the same type of work SI had pursued. In addition, in the Fall of 2018, the Union  
received SI dues remittance forms indicating the employment of only two individuals: Mr.  
Mancini and Mr. Cizek. There was nothing before us to suggest the Union had difficulty reaching  
out to either of them around this time. Presumably, either individual would have been able to  
inform the Union that SI no longer had any work.  
[123] Mr. Lyons did not provide a satisfactory explanation regarding why the matter sat for  
almost a year before a few additional investigatory steps were taken. The matter then sat again  
until March 2020, when the common employer application was filed under what was then  
section 192.  
[124] The Board is aware that the erosion of a union’s bargaining rights may occur gradually  
and that there will be cases where the erosion is not immediately apparent. However, there was  
nothing in the evidence to suggest that was the case here. In particular, we did not hear  
evidence to support the view that the Union was, in fact, lulled into a false sense of security  
because dues continued to be remitted in relation to Mr. Cizek and SI’s sign remained in place  
on CRC’s building. Rather, the evidence suggested the Union was in possession of enough  
information in October 2018 to put it on alert that its bargaining rights were at risk. Yet, no  
application was filed until almost a year and a half later.  
[125] We appreciate that obtaining legal assistance regarding complicated issues like  
successorship and common employer applications can take time, but it does not excuse this  
kind of delay. As this case well demonstrates, common employer and successorship  
applications are often heavily reliant on documentary evidence secured through the Board’s pre-  
hearing production process. This is an approach now reinforced by sections 16(7.2) and (7.3) of  
the Code, which provide:  
Classification: Public  
28  
16 (7.2) The Board may decline to dismiss an application on a preliminary motion  
alleging a lack of a sufficient prima facie case, or insufficient particulars or  
evidence, if in the opinion of the Board, it would be inappropriate to dismiss the  
application prior to the pre-hearing disclosure of relevant documents or other  
prehearing procedures.  
(7.3) In exercising its discretion under subsection (7.2), the Board shall consider  
whether information relevant to the application is peculiarly within the knowledge  
of the respondent or other persons and not generally available.  
[126] These provisions were in force in the Fall of 2018.  
[127] For the above reasons, we decline to address the Union’s common employer  
application. Different considerations apply in relation to delay in the context of successorship  
applications: NASA v. University of Alberta and Focus Bldg. Services et al., [1995] Alta.  
L.R.B.R. 396, at pages 412-415.  
[128] In this case, the parties asked that if we granted either application, we reserve our  
decision on the issue of remedy so that they may first engage in discussions aimed at the  
resolution of the matter. Having found a successorship and in accordance with the wishes of the  
parties, we provide them with the opportunity to craft their own resolution (we suggest, with the  
assistance of a Vice Chair), failing which they can return to the same panel of the Board on the  
issue of remedy. The Board Officer will contact the parties to discuss whether they want the  
Board’s assistance in their settlement discussions. Any hearing into remedy should be  
scheduled in a timely way.  
Nancy E. Schlesinger, Chair  
Classification: Public  
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