International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 v. Master Insulation Company Limited

[1981] OLRB Rep. January 94

2295-79-M International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Applicant, v. Master Insulation Company Limited, Respondent

BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members W. Gibson and N. Wilson.

APPEARANCES: B. Fishbein, M. Zigler. J. Duffv, and V. Churly for the applicant; G. J. Abols. W G. Posthumus. Joe Bittenbinder and Paul Schuetze for the respondent.

DECISION OF THE BOARD; January 15, 1981

1. The applicant International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 ("Local 95") has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding arbitration pursuant to section 112a of The Labour Relations Act.

2. The grievance alleges that Master Insulation Company Limited ("Master") has violated the collective agreement ("the Agreement") between The Master Insulators' Association of Ontario, Incorporated ("the Association") and the International Association of Heat and Frost Insulators and Asbestos Workers ("the International"), and the Inter­national Association of Heat and Frost Insulators and Asbestos Workers, Local 95. The Agreement purports to have been signed June 5, 1979, to be effective from May 14, 1979 to April 30, 1980. Stated generally, the grievance alleges that Master has violated and continues to violate the Agreement from and after September 8, 1979 by:

(a) failing or refusing to employ only members in good standing of the International and Local 95 to do its work covered by the Agreement and to hire them through the office of the International and Local 95, all as required by clauses 1.02 and 1.03 of the Article I —Recognition and Scope and clause 2.01 of Article II — Hiring of the Agreement; and further or in the alternative, subletting or contracting out work covered by the Agreement contrary to the aforesaid clauses and to clause 8.01 of Article VIII —Performance of Work of the Agreement.

The grievance further alleges that, as a consequence of these alleged violations, Master has failed to pay the proper rates of pay, overtime, living allowances, travelling expenses, vacation pay and statutory holiday pay and has failed to report hours worked, make deductions and pay contributions in respect of union dues and various funds as required by the Agreement.

3. Master and Local 95 had been bound to the collective agreement between Local 95 and the Association which was signed November 29, 1975 to be effective from July 7, 1975 to April 30, 1979. This collective agreement was the predecessor of the Agreement and, pursuant to clause 1.04 of the collective agreement, was binding upon the employers and their employees and Local 95 and its members. Employers are defined in clause 1 .01 as"... members and non-members of the Association set out in Schedule A.". Schedule 'A' lists Master as an employer. The geographic scope of the collective agreement was the Province of Ontario except for certain counties in the eastern-most part of the Province. It covered work performed at construction sites and it included, but was not limited to, work performed in the industrial, commercial and institutional sector of the construction industry as referred to in section 106(e) of the Act. The parties are agreed that Master ceased, during the term of the collective agreement, to be a member of the Association although the evidence does not reveal when precisely this occurred.

4. During the term of the collective agreement, the "Province-Wide Bargaining" part of which the Act, which starts at section 125, was added to the Act as a result of The Labour Relations Amendment Act, 1977, S.O. 1977, c. 31, which introduced province-wide, multi-employer bargaining in the industrial, commercial and institutional sector of the construction industry. These amendments came into force on October 27, 1977. On April 28, 1978, the Minister of Labour, pursuant to section 127, designated the Association as an employer bargaining agency and the International and Local 95 as an employee bargaining agency. Section 125 of the Act defines an employee bargaining agency in sub-section (c) and an employer bargaining agency in sub-section (d). Local 95 is an affiliated bargaining agent as referred to in section 125(a) of the Act. The International and Local 95, pursuant to their designation as the employee bargaining agency, are authorized to represent in bargaining all journeymen and apprentice insulators and asbestos workers represented, inter alia. by Local 95 and bound by or parties to:

''collective agreements to which the Unions [the International and Local 95] or any of them have been or are party to or bound by, covering the industrial, commercial and institutional sector of the construction in-dusty in the Province of Ontario.".

The Association, as a designated employer bargaining agency is authorized, pursuant to section 127(b) of the Act, ..... to represent in bargaining provincial units of employers for whose employees affiliated bargaining agents hold bargaining rights,.. .". The designation describes the provincial unit of employers as all employers bound by or parties to, inter alia

''collective agreements to which the Unions [the International and Local 95] or any of them have been or are party to or bound by, covering the industrial, commercial and institutional sector of the construction industry in the Province of Ontario.”

5. Having regard to all of the foregoing facts, the Board finds that, following the coming into force of the province-wide bargaining part of the Act on October 27, 1977, and upon the above-referred designations, the Association became the employer bargaining agency for Master and the International and Local 95 became the designated employee bargaining agency for Local 95. Pursuant to section 132(1) of the Act, the collective agreement between the Association and Local 95, insofar as it applied to the industrial, commercial and institutional sector of the construction industry, ceased to operate on its expiry date April 30, 1979. Section 132(3) provides that:

"Where any collective agreement mentioned in subsection I ceases to operate, the affiliated bargaining agent, the employer and the employees for whom the affiliated bargaining agent holds bargaining rights shall be bound by the provincial agreement made between an employee bargaining agency representing the affiliated bargaining agent and the employer bargaining agency representing the employer."

6. Since section 133(3) of the Act states that:

"Every provincial agreement shall provide for the expiry of the agreement on the 30th day of April calculated from the 30th day of April, 1978."

and since the collective agreement between the Association and Local 95 would cease to operate on April 30th, 1979, when the Association and the International and Local 95 were made designated bargaining agencies, their designations stipulated that the first provincial agreement negotiated between them would be for a term running from April 30, 1979 to April 30, 1980. A provincial agreement as referred to in section 125(e) means, in part,

“…….agreement……..covering the whole of the Province of Ontario be­tween a designated.. . employer bargaining agency that represents em­ployers, on the one hand, and a designated employee bargaining agency that represents affiliated bargaining agents, on the other hand, con­taining provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer bargaining agency, the employers represented by the employer bargaining agency and for whose employees the affiliated bargaining agents hold bargaining rights, the affiliated bargaining agents represented by the employee bargaining agency, or the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry referred to in clause (e) of section 106.".

7. The Association and the International and Local 95 signed the Agreement referred to in paragraph 2 above June 5, 1979 to be effective from May 14, 1979 until April 30, 1980, which pertains, inter alia, to the industrial, commercial and institutional sector of the construction industry in the Province of Ontario. The Agreement is similar in scope, if not identical, to its predecessor. The Board is satisfied, on the evidence, that the Agreement meets all of the conditions set out in section 125(e) of the Act for a provincial agreement and finds, therefore, that it is a provincial agreement as referred to in that section. Since the bargaining rights established for Local 95 in respect of employees of Master under the predecessor collective agreement have not been declared terminated by the Board in any proceeding before it, the Board finds that by operation of section 132 of the Act, subsections I and 3, Master is a party bound by the Agreement insofar as it relates to the industrial, commercial and institutional sector of the construction industry in the Province of Ontario. In respect of the bargaining rights existing under the predecessor collective agreement, the Board notes also that the evidence before it reveals that Master, by virtue of a consent agreement between Local 95 on the one part and the Association and Master on the other part, accepted that it was bound to a collective agreement between Local 95 and the Association. The Board's record in Board File No 1882-78-M establishes that the consent agreement was in respect of a grievance between Local 95 and Master arising under the aforesaid predecessor collective agreement.

These are the same bargaining rights, in respect of the industrial, commercial and institutional sector, which the Board has found to have flowed through from that predecessor collective agreement. The fact that Master resigned its membership in the Association, whether before or after the expiry date of that agreement, does not serve to terminate the bargaining rights which existed under it in respect of Master's employees. In this respect, see the Board's decision in Baker Gurney & McLaren, [1976] OLRB Rep. Mar. 1978. Nor was it necessary for Master to have any employees when the Agreement was signed in order for Local 95's bargaining rights for Master employees to flow through from the predecessor agreement to the Agreement (section 110 of the Act).

8. Having regard for the Board's finding that Master and Local 95 are bound to the Agreement and that it is a provincial agreement referred to in section 125(e) of the Act and since section 134(3) of the Act provides that:

"Any employee bargaining agency, affiliated bargaining agent, employer bargaining agency and employer bound by a provincial agreement shall be considered to be a party for the purposes of section 1 12a.",

the Board has jurisdiction to determine the grievance referred herein pursuant to its authority under section 112a.

9. The grievance was referred to the Board on March 7, 1980 and alleges that Master has violated the Agreement from and after September 8, 1979 and was continuing to violate the Agreement as at the making of the referral. It was heard during six days of hearings between March 21, 1980 and July 30, 1980. During the course of the proceedings the Board denied consent to Local 95 to amend its grievance to allege that the violations commenced from May 14, 1979, the effective date of the Agreement.

10. Having regard to the evidence before it, the Board makes the following findings of fact.

(a) For the week of May 12, 1979, and for one other day, Master employed two persons, George Radocaj and John Beckett to per­form work for Inglis Limited replacing old insulation on pipes in its factory.

(b) During a period of approximately seven days starting on or about May 26, 1979, Master employed George Radocaj to perform work for Kimberley-Clark of Canada Limited repairing duct insulation in its plant.

(c) For the week of June 9, 1980, and on June 17th and 20th, Master employed George Radocaj and John Beckett to perform work for Canada Wire and Cable Limited to repair pipe insulation in its factory by replacing old insulation with new.

(d) The work performed in items (a), (b) and (c) is work falling within clause 1.02 of the Agreement and pertains to the industrial, com­mercial and institutional sector of the construction industry in the Province of Ontario.

(e) Master did not hire either Radocaj or Beckett through Local 95 pur­suant to clauses 2.01(a), 2.0 1(b) or 2.04 of Article II — Hiring of the Agreement as set out below:

'2.01(a) The employers shall employ as members of the Union [the International and Local 95] in good standing in the performance of all work coming within the scope of this Agreement and shall continue in their employ only employees who are in good standing with the Union [the International and Local 95].

2.01(b) All such employees shall be hired through the Union [the International and Local 95] Office except as hereinafter provided.

2.04 The employers shall have the right to procure workmen from available sources other than from the Union [the International and Local 95] on jobs located within the local jurisdiction when the Union [the International and Local 95] has failed to furnish the required number of competent and qualified employees within two (2) working days following a written request by an employer. Imme­diately upon hiring, such workmen shall be considered to be emer­gency help. The employer, after consultation with the Union Business Manager, shall designate the classification within which such emergency help falls, and they shall be entitled to receive hourly rates of pay applicable to such classification. Emergency help shall be issued referral cards for identification and classifica­tion only, but shall not come within the scope of this Agreement except as noted in Clause 9.01, and shall be replaced as soon as competent Union [the International and Local 95] employees are available. Emergency help shall not be counted in the ration for the duration of the emergency."

(f) Master obtained a sub-contract dated October 18, 1978, from J.H. Lock & Sons Limited ("Lock") to supply and install insulation materials on a construction site for Kellog-Salada Ltd., in Rexdale, Ontario.

(g) The work as set out in the contract from Lock is work in the industrial, commercial and institutional sector of the construction industry referred to in section 106(e) of the Act and falling within clause 1.02 of the Agreement.

(h) Master began performing this contract in October 1979 and at all material times supervised the work and supplied the materials to the job. The progress payments which Master received from Lock for work performed covered supply and installation of insulation materials, including labour.

(I) Master arranged with Tecumseth Insulation Services Limited ("Tecumseth") to supply the labour for Master's contract with Lock. By letter dated July 31, 1979, Tecumseth confirmed its price to be the total cost of "... the base rate plus all checkoffs and carrying charges." plus a fee of twenty (20) per cent of that total cost. During the 16 weeks from the week ending October 19, 1979 to and including the week ending February 1, 1980, Tecumseth billed Master for approximately 1,286 man hours of labour.

(j) Master did not contact Local 95 to see if members were available for hire by Master before arranging with Tecumseth to supply labour to the Kellog-Salada job. Nor did Master attempt to ascertain whether Tecumseth was in a contractual relationship with Local 95 pursuant to clause 8.01 of Article VIII Performance of Work of the agree­ment.

(k) Tecumseth is not in a contractual relationship with Local 95.

(1) At all times material to this referral, there were members of Local 95 who were unemployed and available for employment pursuant to the Agreement and there were contractors who were in a contractual relationship with Local 95.

11. Having regard for Article II — Hiring of the Agreement, clauses 2.01(a), 2.01(b) and 2.04, and for the fact that Master engaged Radocaj and Beckett to perform the work referred to in items 10(a), (b) and (c) without proceeding in accordance with the aforesaid clauses, the Board finds that Master has failed to comply with Article II — Hiring and has violated clauses 2.01 and 204 of the Agreement.

12. Clause 1.02 of Article I — Recognition and Scope and clause 8.01 of Article VIII —Performance of Work of the Agreement state as Follows:

"1.02 'Employees' as used herein shall mean and include all mechanics, improvers and/or apprentices who are members of the Union [the International and Local 95]. This Agreement covers the rates of pay, rules and working conditions of all mechanics and improvers of that work traditionally and regularly performed by this craft for the employers signatory to this Agreement at the site of construction, in performance of the preparation, distribution, fabrication, alteration, application, erection, assembling, molding, spraying, pouring, mixing, hanging, adjusting, repairing, dismantling, reconditioning, maintenance, finishing and/or weather proofing, of cold or hot thermal insulation with such materials as may be specified when these materials are to be installed for thermal purposes in voids, or on other piping, fittings, valves, boilers, ducts, flues, tanks, vats, equipment, or on any hot or cold surface for the purpose of thermal control and such other work as may be awarded the Union [the International and Local 95] pursuant to a trade jurisdictional award."

"8.01 Neither the Union [the International and Local 95] nor any active card-carrying employee shall contract, sub-contract make estimates for or in respect of the application of insulation, within the scope of this Agreement, and no employee shall act in any capacity other than that of an employee of the employers. The employers agree that they will only sublet or contract out any work within the jurisdiction of Local 95 as described in Clause 1.02 to firms which are in contractual relationship with Local 95. The exception to this shall be when a specialty contractor is specified."

In light of those clauses and the fact that Master contracted with Tecumseth for the supply of labour under Master's contract with Lock and Tecumseth is not in a contractual relationship with Local 95, :he Board finds that Master has sublet or contracted work to Tecumseth contrary to the provisions of clause 8.01.

13. Prior 10 dealing with the liability of Master in respect of the aforesaid violations of the Agreement, it is necessary for the Board to deal with some procedural issues which arose during the hearing. At the hearing on June 16, 1980, the Board ruled that it would hear evidence of events relating to the alleged violations up to that date of hearing. By then the Agreement had expired pursuant to section 134(3) of the act, supra. The matter was continued for hearing on July 29. During the hearing on that day, Local 95 counsel asked leave of the Board to introduice evidence of events after June 16 and up to the date of hearing on July 29. Counsel contended that, while the Agreement had expired on April 30, 1980, its terms were extended beyond that date by the "freeze" imposed by section 70(1) of the Act on".. . rates of wages or any 01 her term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees,... ". The Board heard and considered the representations of both counsel and ruled that, in order that all of the issues with respect to the alleged violations of the hiring and or sub-contracting provisions of the Agreement be heard and dealt with, it would admit evidence of events up to the earlier of the end of the section 70 freeze or the date of the hearing (July 29).

14. By letter dated January 24, 1980, addressed to the Association, Local 95 served notice of"... its intention to negotiate the renewal, ... of the collective agreement applicable in all sectors of the construction industry as per Article XVIII section 18.01 of the current Collective Agreement". On April 18, 1980, Local 95 filed with the Minister of Labour a Request for Appointment of Conciliation Officer and duly served a copy of the request on the Association. Counsel for Master acknowledged that it received a copy of the request also. Neither the Association nor Master opposed the request. A letter from the Deputy Minister of Labour dated May 7, 1980, was sent to Local 95 advising it of the appointment by the Minister of conciliation officer Mr. P.G. Gardner. Subsequently, by further letter dated June 6, 1980, from the Deputy Minister, Local 95 was advised that the Minister had decided not to appoint a Board of Conciliation in the negotiations between Local 95 and the Association (colloquially referred to as a "no board" report). The Board is satisfied, in the absence of contrary evidence, that both letters from the Deputy Minister were sent also to the Association.

15. Counsel for Master argued that the section 70(1) freeze period had not been triggered because the Agreement did not conform to section 133(3) of the Act and was, therefore, a nullity or, in the alternative the notice to bargain given by Local 95 was not notice to bargain given by Local 95 was not notice pursuant to section 45 of the Act. On the first point, counsel argued that section 133(3) stipulates that agreements pertaining to the industrial, commercial and institutional sector of the construction industry shall provide for their expiry one'... the 30th day of April calculated beinnially from the 30th day of April, 1978.". Since that wording contemplates an agreement of two years duration and the Agreement was for a one year term, counsel contends that it does not conform to the Act and, therefore, is not valid. That argument fails on several counts. The legislature in formulating the province-wide part of the Act, obviously contemplated the problem of bringing the expiry dates of subsisting agreements pertaining to the industrial, commercial and institutional sector into step with section 133(3). In section 132(2) it provided retroactively for such agreements that ". . . were entered into after the 1st day of January, 1977 and before the 30th day of April 1978.. .[to] be deemed to expire not later than the 30th day of April 1978, regardless of any provision respecting its term of operation or renewal.". Agreements entered into prior to January 1st, 1977 which were in operation when section 132(1) came into force (i.e. October 27, 1977) were, by that section, "...enforeceable and binding on the parties thereto only for the remainder of the term of operation of the agreement, regardless of any provisions respecting its renewal.". Since that section, as stated earlier in this decision, caused the pre­decessor collective agreement to cease to operate on April 30th, 1979, it was necessary for the Agreement to be for a term which expired on April 30, 1980 to bring it in phase with section 133(3) on the earliest possible date. To this end, the Minister's designations of the Association and of the International and Local 95 as bargaining agencies stipulated that the first provincial agreement between them be for a term of April 30, 1979 to April 30, 1980.

16. While the wording of section 133(3) of the Act does provide for every provincial agreement to be for a two year term expiring on the 30th day of April in "even" years, when that wording is construed having regard to section 132(1) and all of the province-wide bargain­ing provisions, it readily accommodates a first provincial agreement of less than two years duration. The Board finds therefore, that the Agreement not only does not violate section 133(3), but is consistent with the requirement of that section.

17. Counsel argued that the notice to bargain given by Local 95 satisfied neither the requirements of clause 18.01 of the Agreement nor section 45 of the Act because it was given prior to the commencement of the period of 90 days before the Agreement ceased to operate. The Agreement provides that the party desiring to terminate or bargain a renewal of the Agreement ". . . shall furnish the other with notice.., within a period of 90 days before April 30th . Section 111 of the Act deals with notice to bargain in the construction industry and notice given pursuant to that section ..... has for all purposes the same effect as a notice under section 45." Both sections 45 and Ill provide that either party to a collective agreement may give notice to the other of desire to bargain".., within the period of ninety days before the agreement ceases to operate,. . .". Local 95's notice was dated January 24th, 1980, clearly prior to the start of the 90 day period contemplated by the Act and the Agreement. Does this invalidate the notice? The Board thinks not.

18. Notwithstanding the apparently premature notice, the two bargaining agencies met and bargained, according to the request for conciliation, on January 29th, February 12th, March 5th and March 27th, 1980. A conciliation officer was appointed on May 7th, 1980, to attempt to bring about a collective agreement and, ultimately, the minister's "no board" report was issued. There is no evidence that the Association contested the notice to bargain, nor did it or Master object to the appointment of the conciliation officer. Section 1 5(2) of the Act gives the Minister the discretion to appoint a conciliation officer "Notwithstanding... the failure of either party to given written notice under sections 45 and Ill, where the parties have met and bargained,.. .". Had there been any challenge to the Minister's authority to appoint an officer on the grounds that the notice to bargain was premature, since the two designated bargaining agencies had met and bargained, the Minister clearly would have had the jurisdiction to appoint an officer as, indeed, was done.

19. As already stated, there is no evidence that the Association rejected the early notice and Local 95 certainly did not withdraw it. In fact the parties held their first meeting prior to the start of the ninety-day period. It is also patently clear from the conduct of the parties that they did not consider the early notice defective. The fact that they met and bargained, in the Board's view, has corrected any defect in the notice, if indeed there was one. Or, put another way, by meeting to engage in bargaining, the parties have effectively given notice one to the other. They met not once but three times after the start of the 90 day period and before conciliation. This is not the conduct of parties who intended to allow the Agreement to continue for another term, which would have been the result of failure to give notice and the absence of bargaining. Moreover, it would be inconsistent with the scheme of the Act for the Board to view section 45 so narrowly as to hold the kind of notice given here to be invalid in spite of the conduct of the parties which followed the notice. There are several important rights under the Act which are affected in one way or another by the giving of notice: the right of a union to engage in a lawful strike or any employer to engage in a lawful lockout; the right of parties to challenge an incumbent union's status as bargaining agent and the right of parties to an agreement to request conciliation services. It is inconceivable that the Act should be applied in such a way that either Local 95 or the Association, having bargained as they did, could then attempt to interfere with one of the rights affected by section 45 notice by claiming that Local 95's notice did not satisfy the Act. A simple example would be to take the same facts in respect of notice and bargaining as we have here but without the request for conciliation and inject an application made after the Agreement's expiry date to have Local 95's bargaining rights terminated. If the Board accepted the argument of counsel for Master, Local 95. in spite of its bargaining conduct, could rely on the defence that the application was untimely because the Agreement had been continued for a further term as a result of proper section 45 notice not having been given.

20. Furthermore, to accept the view of counsel for Master that Local 95's notice did not satisfy section 45, even in the circumstances of the ensuing bargaining, would result in potentially absurd applications of the Minister's discretion under section 15(2) of the Act. Or, where the language of an agreement provides for its automatic renewal if neither party gives notice, counsel's view of section 45 notice would render section 15(2) meaningless in situations where the parties had met and bargained but had not given written notice.

21. Therefore, in the circumstances of this case, the Board finds that the notice given by Local 95 to the Association was notice pursuant to sections 45 and 111 of the Act.

22. Counsel for Master contends also that the grievance was untimely because it was not filed within the limits specified by clause 6.04 of the Agreement. That clause states that a referral under section 1 12a must be filed".., within one hundred eighty days (180 days) im­mediately following the date of the happening of the event giving rise to the grievance, complaint or dispute, failing which the parties agree that they will be deemed to have abandoned such grievance,. . .". Counsel relies on the fact that Master's arrangement for sub­contracting the labour content of the Salada-Kellog project to Tecumseth was completed when Tecumseth confirmed its terms in a letter dated July 31, 1979. If this is the event giving rise to the grievance, it is obviously more than 180 days prior to this referral. The fact is, however, that there was no visible evidence of the arrangement until Master established its presence on the project in October 1979. In the Board's view, that is the event which ultimately gave rise to this referral being made and, therefore, the referral meets the requirements of clause 6.04.

23. In the course of making the foregoing argument, counsel also argued that, since the sub-contract with Temcumseth was made prior to September 6, 1979, the Board should discount the entire evidence about it. He was relying on the July 31, 1979 date of Tecumseth's letter to bring the sub-contract within the scope of the Board's ruling which denied Local 95's request to amend its referral to cover alleged violations prior to September 8th. The Board finds this argument to be without merit. Even if July 31st was accepted as the beginning of the sub-contract, Tecumseth's performance of it was an on-going event lasting from October 1979 until the week ending February 1, 1980, therefore occurring entirely after September 8, 1979.

24. During the course of the proceedings, counsel for Master twice objected to the subpoenas personally served on two principals of Master, particularly in respect of the all-encompassing nature of the description of documents in the summons duces tecum. Counsel claimed that his clients were being subjected to a fishing expedition and contended that they should not be required to produce the documents. On the first occasion that counsel raised his objection, it was joined with the objection that the grievance was entirely lacking in particularity and that these two circumstances amounted to nothing more than a fishing expedition by Local 95. In expressing his objection, counsel referred to both the Board (differently constituted) and the Divisional Court having recognized the validity of a similar complaint by one of his clients about a similar summons duces tecum served in connection with the grievance which was the subject of the September 6th consent agreement between the parties. Consequently, he submitted that this Board should not allow Local 95 to proceed with the instant grievance. The lack of particularity and/or specificity in the grievance was raised at the second day of hearing on April 14th. It had not been raised on March 21st, the first day, by another lawyer who appeared for Master that day, nor was it raised in the interval between the hearings. Since the Board had found on March 21st that Master and Local 95 were bound to the Agreement and that the Board, therefore, had jurisdiction to hear and determine the grievance and no objection having been made to the broad cast of the grievance until the second day of hearing, the Board ruled that it would proceed to hear it. It also ruled that any objections of Master's counsel to the documents Local 95 counsel sought to have produced would be heard and considered by the Board on a document by document basis.

25. In arguing his case, counsel for Master claimed that the board cast of the grievance and the sweeping nature of the summons duces tecum combined with the Board's process permitted Local 95 to perfect its grievance during the course of the Board's proceedings. In other words, counsel was claiming that Local 95 did not have any knowledge of specific events about which it could grieve until it flushed them out by having Master come and testify against its own interests. In his view, therefore, the Board should dismiss the grievance. The Board is not without concern about grievances referred to it which only broadly allege violation of the collective agreement, even when they are specific as to the sections alleged to have been breached. It will not permit its broad powers and its procedures to be abused by a party seeking to learn whether in fact it has a grievance. Any party which refers a grievance that is so broadly stated as to raise that suspicion runs the risk either of delay in having its grievance determined or having the Board rule that it is so lacking in specificity as to be not arbitrable. On the other hand, the Board must be sensitive to the realities of the construction industry with its scattered job sites and the large number of small employers and the difficulties which these conditions create even for a trade union which attempts diligently and assiduously to assert its bargaining rights and police its collective agreements. There are many ways by which an employer who is bent on ignoring his responsibility under a collective agreement can obscure his presence on a job site. This makes it difficult for a union to know whether an employer with whom it has an agreement is performing work at all. Once a union learns of an employer's presence on a job, it may be able only to determine that the employer is performing work for which the union claims jurisdiction under the collective agreement. That may be the extent of the information on which it must rely to file a grievance. In these circumstances, the Board cannot set hard and fast conditions §or specificity and particularity but must look at each grievance on its merits if it is challenged as being too lacking in its particulars or not specific enough in stating the alleged violation.

26. In the case at hand, while Local 95's grievance was lacking in particularity as to precisely how and when Master had violated the hiring and sub-contracting clauses of the Agreement, the Board is satisfied that it was not on a fishing expedition and seeking to perfect its grievance through the process of the Board's hearings. It called evidence about the Kellogg­-Salada job through a witness independent of Master in support of its claim and it is clear from the beginning f its examination of witnesses that it had some knowledge of the Kellogg­-Salada job. The same cannot be said for the work referred to in paragraph 10, items (a), (b) and (c). It is obvious that these events have taken place since this referral was filed with the Board. The grievance does allege, however, that Master"... has violated and continues to violate the hiring and sub-contract provisions of the Agreement from and after September 8, 1979. Particularly where it is apparent, as it is here, that the employer is ignoring one of the major job security provisions of its collective agreement (i.e., the sub-contracting provision) or where it is evident that no effort has been made to comply with important protection provisions of an agreement, there is no sound reason why the arbitrator cannot deal with the continuing viola­tions where the grievance alleges that there are continuing violations and they do continue after the filing of the grievance, including while the matter is still before the arbitrator. See Williams Contracting Ltd., [1980] OLRB Rep. July 1115, at paragraph 29.

27. Having regard for all of the foregoing and in particular for the findings of fact that:

(a) Master has violated clauses 2.01 and 2.04 of the Agreement by hiring persons other than members of Local 95 to perform the work referred to in items (a), (b) and (c) of paragraph 10 herein; and

(b) Master has violated clause 8.01 of the Agreement by contracting with Tecumseth for the supply of labour for Master's contract with Lock when Temcuseth was not in a contractual relationship with Local 95; and

(c) At all material times there were members of Local 95 available for employment pursuant to the terms of the Agreement and there were contractors who were in a contractual relationship with Local 95,

the Board further finds that members of Local 95 have been denied the opportunity to earn wages and to have paid to them or on their behalf all of the requisite payments and contributions under the Agreement. As a result, Master has failed also to make requisite payments under the Agreement to Local 95.

28. Having further regard for the reasoning expressed in Napev Construction Limited, [1980] OLRB Rep. Feb. 297, at paragraph 6 and for the principles contained in Re McKenna Brothers Ltd. and Plumbers Union Local527 1975 CanLII 2128 (ON LA), 10 LAC (2d) 273 (Shime) and in the decision of the Ontario Court of Appeal in Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America. Local 2486, 1975 CanLII 707 (ON CA), 57 DLR (3d) 199, the Board finds that Local 95 is entitled to relief for and on behalf of itself and its members in the form of a sum of money equivalent to all payments which should have been made pursuant to the Agreement and were not for all hours of work performed, as a result of the aforesaid violations, by persons who were not members of Local 95 and not engaged pursuant to the term of the Agreement.

29. The parties are directed to meet and agree on the amount of damages owing to Local 95 as a result of Master's violation of the Agreement. Should they be unable to do so, the parties are agreed that the Board remains seized of this matter in respect of the amount of damages.