United Brotherhood of Carpenters and Joiners of America, Local 2041 v. Ottawa G.S.B. Construction Co. Ltd.

[1985] OLRB Rep. December 1783

2115-84-M United Brotherhood of Carpenters and Joiners of America, Local 2041, Applicant, v. Ottawa G.S.B. Construction Co. Ltd., Respondent

BEFORE: Ian C. Springate. Alternate Chairman, and Board Members A. Grant and H. Kobryn.

APPEARANCES: David Jewitt, Don Guilbeault and Rick Lecompte for the applicant; PaulB. Kane and David Migicovsky for the respondent.

DECISION OF THE BOARD; December 23, 1985

1. This matter involves the referral of two grievances to the Board pursuant to the provisions of section 124 of the Labour Relations Act. This decision relates to only one of the grievances, which is dated October 30, 1984.

2. This matter came before the Board for hearing on September 25, 1985. The hearing is scheduled to resume on January 6, 1986. At the conclusion of the hearing on September25, 1985 a question was raised with respect to the propriety of the scope of a summons to witness which had been issued at the request of the applicant. The summons, as issued,requires that certain individuals bring a number of documents to the hearing. The respondent contends that due to the time span covered by certain documents, they cannot be relevant to these proceedings. In the course of hearing the representations of the parties with respect to this issue, it became apparent that the parties also disagreed with respect to a second but related issue, namely, whether it is appropriate for a witness to be required to bring to the hearing documents that relate to job sites not referred to in the grievance.

3. The grievance with respect to which the summons to witness was issued alleges that the respondent violated the carpenters provincial agreement as follows:

On or about August 10th, 1983, the Respondent, Ottawa G.S.B. Construction Co. Ltd., hired certain employees to work on a project it was involved in at Hawkesbury Hospital. Initially, the Respondent, although bound to the provincial collective agreement, did not hire members of Local 2041 or of any other affiliated bargaining agent to work on this project. Grievances were filed and that matter was subsequently resolved with the Respondent agreeing to require his employees to become members of Local Union 2041.

Subsequent to the resolution of the above-noted grievance, the Respondent required certain of its employees (who had previously been non-union employees) to enter into piecework agreements with respect to the work being undertaken at the Hawkesbury Hospital project.

There is no provision in the aforesaid provincial collective agreement for employees to work on a piecework basis in any capacity at all. The wage rates, benefits, etc. are all based on an hourly rated scale set out in the agreement.

At all material times, the Respondent was fully aware of the provisions of the provincial collective agreement and the prohibition relating to piecework under that agreement.

The fact that the Respondent was requiring his employees to work on a piecework basis has only recently come to the attention of the Applicant as a result of other investigations being conducted by the Applicant into the Respondent's operations.

It has also just recently come to the attention of the Applicant that the Respondent has required and continues to require his employees to work on a piecework basis on a project in the City of Ottawa known as the Metropolitan Life building project located in the downtown core of Ottawa.

Throughout these two projects, the Respondent employer made certain remittances on behalf of his employees but falsified the actual number of hours worked, thereby reducing the appropriate amount of benefits to be paid pursuant to the agreement as well as the wages which should have been paid to its employees if they had been paid in accordance with the hourly rates contained in the collective agreement.

It has also recently come to the attention of the Applicant that the Respondent continues to put pressure on all of its employees to breach the terms of the collective agreement and attempts to offer individual piecework contracts to the employees, thereby undermining the rights of the Applicant to represent its employees in accordance with the terms of the collective agreement.

As a result of its investigation concerning both the Hawkesbury Hospital project and the Metropolitan Life project, the Applicant has now concluded that the Respondent has adopted a pattern of breaching the provincial collective agreement by requiring its employees to work on a piecework basis, but has attempted to hide this fact by fabricating certain dues and checkoff remittance forms for all of the employees within its employ. Accordingly, the Applicant requests an Order of the Board appointing an independent chartered accountant or, alternatively, an officer of the Board to examine the Respondent's books, payroll records, etc in order to certify that the employees within its employ are being properly paid wages andbenefits in accordance with the provisions of the collective agreement.

4. The Summons to Witness, as issued, requests that the individuals summoned to appear before the Board bring with them, and produce, the following documents:

5. Copies of all construction contracts entered into by Ottawa G.S.B. Construction Co. Ltd. with owners, developers, general contractors, and subcontractors from November 1st, 1982, through until the present.

6. List of all construction projects worked on by Ottawa G.S.B. Construction Co. Ltd. from November 1st, 1982, through until the present.

7. Copies of any service contracts entered into by Ottawa G.S.B. Construction Co. Ltd. from November 1st, 1982, through until the present.

8. Copies of all T-4's and T-4A's issued to employees and subcontractors from November 1st, 1982, through until the present.

9. Weekly time sheets for all employees from November 1st, 1982, through until the present.

10. Weekly wage and subcontract expense summaries from November 1st, 1982, through until the present.

11. Individual employee earnings records from November 1st, 1982, through until the present.

12. Copies of the monthly remittance reports to Local 2041, i.e. the acoustical and drywall trust fund's report.

13. Cheque register from November 1st, 1982, through until the present.

14. Any other time sheets signed or submitted by employees themselves from November 1st,1982, through until the present.

15. Any other documents that might in any way be relevant to these proceedings.

16. At the hearing on September 25, 1985, counsel for the applicant indicated that the applicant is not seeking a remedy with respect to any events which occurred prior to March 19, 1984, and that the applicant was agreeable that witnesses not bring with them any documents pertaining to events prior to that date. Counsel also indicated that the applicant was prepared to use the first day of hearing, namely September 25, 1985, as a final "cutoff" point for documents. Applicant's counsel contended, however, that witnesses should be prepared to produce documents related to events prior to that date but subsequent to the filing of the grievance, including documents which related to any new jobs which had commenced after the filing of the grievance. In this regard, counsel contended that the issue before the Board relates to the sub-contracting of work, and there should be no need for the applicant to file additional grievances with respect to this issue. In reply, counsel for the respondent contended that the cutoff date for any relevant evidence should be the date of the filing of the grievance, and that evidence should be limited to the two job sites referred to in the grievance.

17. Assuming that no privilege attaches to the documents in question, a person summoned to appear before the Board can be required to bring with him all relevant documents in his possession or under his control. Thus, to determine the proper scope of the summons to witness, we must first decide whether it is appropriate for the Board to consider events which occurred after the filing of the grievance, and whether it is appropriate to consider occurrences on job sites that are not referred to in the grievance.

18. This propriety of considering breaches of a collective agreement alleged to have occurred after the filing of a grievance was discussed in Re Beach Foundry Ltd. and United Automobile Workers (1974) 1974 CanLII 2342 (ON LA), 7 L.A.C. (2d) 313 (Abbott) at pp. 324-325 as follows:

Finally I turn to the submission for the employer that my jurisdiction does not extend to the determination of any compensation payable for the period between the submission of the grievance to me for arbitration and the date of the initial hearing. I am not satisfied that the principle enunciated in Russell on Arbitration that the date of submission to arbitration marks a cut-off point is a principle which can or should be applied to the determination of damages for a continuing breach of a collective agreement in the labour relations context. I have been unable to find any previous award on the issue, nor was I referred to any by the parties' representatives. I find the arguments put forward by Mr. Burrows for the union to be highly persuasive. It appears to me that the arbitration stage in grievance resolution is generally treated by the parties as an integral part of the process. The observable fact is that a considerable delay can and most often does elapse between the conclusion of negotiations between the parties over a grievance and the actual hearing into the grievance by an arbitrator or board of arbitration. The decision to refer the matter to arbitration is almost invariably one which is confined by a time limit, that is to say, the party having carriage of the grievance must act to refer it to arbitration within a limited time or risk the loss of the right to refer the grievance to arbitration. But the period thereafter is subject to few if any time limits. (In this case, the parties in cI. 10.01 of their collective agreement have only provided that, after notice is given by one party to the other of its desire to submit a grievance to arbitration, there is a five-day limit on their efforts to mutually agree on an arbitrator after which they must jointly apply for the appointment of an arbitrator by the Minister of Labour.) What is important is that the parties cannot effectively by agreement set time limits on what then takes place. Neither party can, by its own efforts, shorten the period up to the hearing. Yet during that time, in the case of an alleged continuing breach of the collective agreement, losses can and likely will be incurred by the party who is the victim of the alleged breach. It seems unfair that that party be precluded from recovering those losses when, except in unusual cases, it could do nothing effective to reduce the period during which it sustains those unrecoverable losses.

It is not merely a matter of unfairness to preclude a party from recovering for losses occurring between the date of reference to arbitration and the date of the hearing. The only readily available method to ensure recovery, namely, the submission of a fresh grievance for each day the alleged breach continues after the date of submission to arbitration, is highly inconvenient and could lead to absurd and unintended results. Each one of these fresh grievances would have to be dealt with by the laid-down processes of meetings and negotiations. The party which is the victim of the alleged breach would be obliged to press each one of the grievances through each stage, up to and including arbitration, or risk the loss of each grievance through "want of prosecution". Carried to the extreme, each grievance, referred to arbitration, might result in divergent or conflicting awards on what would be essentially the same issue between the parties. Such a situation could not help but endanger the system for the final and binding settlement of disputes arising out of collective agreements.

For the foregoing reasons, I hold that my jurisdiction to fix and determine the compensation payable in respect of the continuing breach which I found to have occurred in my award of March 27, 1974, is a jurisdiction which extends throughout the period from the date on which the grievance arose (July 6, 1973) too and including the date of the initial hearing in this matter (Febrnary 28, 1974).

8. In Williams Contracting Ltd., [19801 OLRB Rep. July 1115 a somewhat similar approach was adopted by this Board with respect to a construction industry grievance referred to

the Board pursuant to the provisions of section 124 of the Labour Relations Act. In that case the Board stated:

29. The applicant is therefore entitled to a declaration that the respondent was bound by Schedule D (to the Operating Engineers provincial agreement) at all times material to the grievance and to the related relief it requested in its grievance. The grievance refers to a time period "May 13, 1979 and continuing", but refers to two specific job sites. The respondent did not raise any sound reason why this matter should not be seen as applying to all the work the respondent has performed in 1979 and 1980 outside Schedule D from the date of the grievance up to the date of this decision. It is accepted that a "collective agreement is fundamentally different from an ordinary commercial contract", and this is particularly the case in the construction industry. See Blouin Drywall Ltd. and United Brotherhood of Carpenters and Joiners of America (1976), 1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199 (Ont. CA.). The parties to such agreements have ongoing relationships and a continuing violation ought to be the subject matter of one grievance. One arbitrator ought to be able to speak to the totality of the difference between the parties and provide a meaningful remedy. On the other hand, the applicant provided the Board with no compelling justification for our relief to speak to the future in the nature of quia timet relief. There is no evidence before the Board that the respondent will continue to avoid its obligations under the schedule now that these obligations are clear. The Board retains jurisdiction in all other issues related to remedy and the implementation of this decision.

30. We are in agreement with the reasoning set out in the two cases referred to above. If in fact the respondent has breached the provincial agreement on the Hawkesbury Hospital and the Metropolitan Life building projects as alleged in the grievance, we believe it would be more appropriate for the Board to deal with any continuation of the breach subsequent to the filing of the grievance rather than require the filing of a fresh grievance on the part of the applicant.

31. Somewhat different considerations apply with respect to the issue of whether the applicant is entitled to rely on possible breaches of the provincial agreement on job sites not referred to in the grievance, including sites where the respondent may have commenced work after the date of filing of the grievance. The applicant has not specifically alleged that any breaches have occurred on other job sites. Rather, it appears to be seeking an opportunity to discover whether or not such other breaches have occurred.

32. In the Williams Contracting case referred to above, the Board's order appears to have been applicable to job sites in addition to those specifically named in the grievance. The effect of the Board's order, however, was only to bind the employer to a particular schedule to a collective agreement on a number of job sites. There was not a finding that the employer had actually breached the schedule on any job sites not referred to in the grievance. Another Board decision of some interest is Sinclair Welding Limited, [1981] OLRB Rep. March 331. In that case a company utilized a crane on a number of different construction sites. The company was bound to a collective agreement in the industrial, commercial and institutional sector of the construction industry, (the "ICI sector"), but not outside of the ICI sector. One of the issues before the Board was whether the job sites where the crane was utilized were within the ICI sector. The union filed 13 separate grievances, each one with respect to a different job site. The grievances were heard by the Board at the same time. During the hearing, union counsel sought to cross-examine the president of the company (a Mr. Wiles) with respect to certain other job sites. The Board's ruling not allowing such questioning is discussed as follows at paragraph 37 of the decision:

33. During the hearing, counsel for the applicant sought to question Mr. Wiles concerning job sites, other than those referred to in the grievances, where the respondent's cranes had been utilized. Counsel indicated that although he had no information concerning any possible further violations of the collective agreement, he felt he should be given an opportunity to find out if there had been any. Counsel for the respondent strongly objected to this manner of proceeding. It appeared to the Board that both in the interests of fairness to the respondent, and the need to keep these proceedings within some manageable limits, evidence should be restricted only to job sites referred to in the numerous grievances referred to above, and the Board made a ruling to this effect. The applicant has requested that we reconsider and revise this ruling. However, having reviewed the reasons for making the ruling, we are satisfied that the ruling was in fact the appropriate one to make. The request that the Board reconsider and vary its ruling is accordingly denied.

34. In our view no hard and fast rule can be drawn as to when it would be appropriate to consider an employer's conduct on job sites not referred to in a grievance. However, we believe that care should be taken not to allow the proceedings to be turned into an open-ended "fishing expedition", or result in a situation where a respondent goes through a hearing without a fair indication of the case it has to meet. Further, as indicated in the Sinclair Welding Limited case, care must be taken to ensure that proceedings are kept within manageable limits. Taking these considerations into account, and having regard to the nature of the allegations raised in this case, we are of the view that it would be inappropriate in these proceedings to deal with possible violations of the provincial agreement on job sites other than those referred to in the grievance. This is, however, without prejudice to the right of the applicant to file grievances with respect to alleged violations of the agreement on other job sites.

35. Having regard to the foregoing, the Board is satisfied that the requirement in the Summons to Witness that witnesses bring with them certain documents should be restrictedto documents that relate only to the Hawkesbury Hospital and Metropolitan Life building jobsites. With respect to these two projects, the relevant time frame for documents is March 19,1984 to September 25, 1985.