The United Brotherhood of Carpenters and Joiners of America, Local 1190 v. Karl Thier Construction Limited and Penka Carpentry Limited
[1985] OLRB Rep. June 887
0469-85-M The United Brotherhood of Carpenters and Joiners of America, Local 1190, Applicant, v. Karl Thier Construction Limited and Penka Carpentry Limited, Respondents
BEFORE: Harry Freedman, Vice-Chairman, and Board Members F. W Murray and S. O'Flynn.
APPEARANCES: D. A. McKee and Tony Iannuzzi for the applicant; R. E. Hawkins and Karl Thier for the respondents.
DECISION OF THE BOARD; June 11, 1985
- The Board issued the following oral ruling at its hearing on June 10, 1985:
This is a referral of a grievance to arbitration under section 124 of the Labour Relations Act. The applicant and both respondents have agreed to adjourn the hearing scheduled today to a further date to be fixed by Registrar in consultation with the parties. Counsel for the applicant requests the Board to direct Karl Thier, a principal of both respondents, to comply with the summons to witness issued by the Board that was served on him by the applicant. Counsel for the respondents demands particulars of the violations alleged by the grievance before having his client comply with the summons to witness.
The respondents Penka Carpentry Limited and Karl Thier Construction Limited were declared to be one employer by the Board, (differently constituted) pursuant to section 1(4) of the Act. The applicant's grievance claims the collective agreement between it and Karl Thier Construction Limited, which, by virtue of the Board's section 1(4) declaration, is binding on Penka Carpentry Limited, has been violated from August 1984 to the present time. The applicant determined that Penka Carpentry Limited received a sub-contract from Bramalea Construction and it alleged that Penka Carpentry Limited performed that work with persons who were not members of the applicant.
The Board's approach to dealing with claims for particulars in section 124 proceedings was set out in Master Insulation Co. Ltd., [1981] OLRB Rep. Jan. 94 at paragraph 25:
"In arguing his case, counsel for Master claimed that the broad 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 for 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."
In our view, the grievance with respect to Penka Carpentry Limited's activities is sufficiently particularized since the applicant alleges that whatever work Penka Carpentry Limited performed was performed contrary to the collective agreement. The applicant need not specify what work it believes Penka Carpentry Limited has performed, since Penka has never been a party to the collective agreement which the applicant has alleged was violated. Rather, the summons to witness relating to Penka Carpentry Limited's activities since its inception in August, 1984 must be complied with.
With respect to the respondent Karl Thier Construction Limited, the applicant asserted at the hearing that the respondent Karl Thier Construction Limited performed work in Brampton between January and March 1985. The applicant's claim in respect of Karl Thier Construction Limited therefore relates only to that period of time and to that location. Mr. Thier's response to the summons to witness in respect of Karl Thier Construction Limited should therefore relate to that period of time and that location only. If the applicant asserts that Karl Thier Construction Limited violated the collective agreement at other times after August 1984, it must particularize those claims since it has been aware of the existence of Karl Thier Construction Limited and is in a position to review more easily the activities of that entity since that company was a party to the collective agreement with it.
Having regard to the agreement of the parties, this matter is adjourned to a date to be fixed by the Registrar in consultation with the parties.
This panel of the Board is not seized with this matter.