United Brotherhood of Carpenters and Joiners of America, Local 1190 v. Labourers' International Union of North America, Local 183

[1988] OLRB Rep. February 125

0554-83-U; 0723-86-U United Brotherhood of Carpenters and Joiners of America, Local 1190, Complainant v. Labourers' International Union of North America, Local 183 and Those Companies Listed on Schedule "A" attached to the com­plaint, Respondents; Local 27, United Brotherhood of Carpenters and Joiners of America on its own behalf and on behalf of all of its members, Complainant v. Local 183, Labourers' International Union of North America, Michael Reilly, and Dellbrook Homes, Respondents

BEFORE: Robert D. Howe, Vice-Chair, and Board Members J. A. Ronson and P. V. Grasso.

APPEARANCES: Douglas J. Wray, D. A. McKee, F. R. Rimes, T lannuzzi and F. D'Abbondanza for the complainants; C. M. Mitchell and C. Detoni for the Labourers' International Union of North America, Local 183 and Michael Reilly; Joseph Liberman for the Toronto Housing Labour Bureau and all of the other respondents in File No. 0554-83-U; Paul Young for Dellbrook Homes.

DECISION OF THE BOARD; February 2,1988

1. File No. 0554-83-U is a complaint under section 89 of the Labour Relations Act in which Local 1190 of the United Brotherhood of Carpenters and Joiners of America ("Local 1190") alleges that it has been dealt with contrary to sections 48, 64, 66, 67, and 70 of the Act by Labour­ers' International Union of North America, Local 183 (also referred to in this decision as "Local 183" and as the "Labourers"), the Toronto Housing Labour Bureau (the "Bureau"), and the other respondents listed on Schedule "A" to that complaint. (For ease of exposition, that complaint will be referred to in this decision as the "Bureau complaint".)

2. File No. 0723-86-U is a section 89 complaint in which Local 27 of the United Brother­hood of Carpenters and Joiners of America ("Local 27") alleges that it has been dealt with con­trary to sections 3, 64, 66, 67(2), and 70 of the Act by Local 183, Michael Reilly, and Dellbrook Homes ("Dellbrook"). (For ease of exposition, that complaint will be referred to in this decision as the "Dellbrook complaint".)

3. In an unreported decision dated April 28, 1986 in an application under section 62 of the Act (File No. 1433-85-R), another panel of the Board declared that Local 27 had acquired the rights, privileges, and duties of its predecessor, Local 1190, by reason of a merger, amalgamation, or transfer of jurisdiction. (For ease of exposition, Local 1190 and its successor, Local 27, will also be referred to compendiously in this decision as the "Carpenters".)

4. The essence of the Bureau complaint is that Local 183 has (in the words of counsel for the Carpenters) "organized from the top down" by negotiating, with various home builders, collec­tive agreements which contain subcontracting clauses which require them to subcontract carpentry work only to carpentry contractors who are in contractual relations with Local 183, notwithstand­ing that the home builders do not normally employ carpenters and that Local 183 does not repre­sent any carpenters employed by the home builders. In addition to compensation, the relief requested by the Carpenters includes a declaration that the collective agreements in question are null and void or, alternatively, a declaration that the subcontracting clauses in the collective agree­ments are null and void. It is common ground among the parties that the Dellbrook complaint raises similar issues.

5. Counsel for the Labourers submits that the Board, in the exercise of its discretion under section 89(4) of the Act, should dismiss these two complaints on the basis of delay and abuse of process. Dismissal is also advocated by counsel for Dellbrook, and by counsel for the Bureau and the other respondents listed in Schedule "A" to the Bureau complaint. Counsel for the Carpen­ters, on the other hand, contends that there has been no delay or abuse of process by the Carpen­ters, and submits that the complaints should be heard on their merits.

6. None of the parties called any witnesses before this panel of the Board. However, we received thirty-nine exhibits on the agreement of the parties, and admitted a further exhibit at the request of Carpenters' counsel, after overruling an objection to its admissibility by counsel for the other parties. Almost all of that documentation was also placed before a panel chaired by Vice-Chair Kuttner (the "Kuttner panel") in File No. 1445-85-U (the "Presidential complaint"), another section 89 complaint filed by the Carpenters against the Labourers. The background to these complaints, and the pertinent events which occurred prior to September of 1987, are set forth as follows in that panel's decision (the "Presidential decision") dated September 14, 1987 in respect of that matter (Toronto Housing Labour Bureau, [1987] OLRB Rep. Sept. 1178):

7. Since 1981, the parties have been involved in a bitter dispute, each seeking to assert hegemony over the work of framing carpentry in the residential housing sector of the construction industry. It is a dispute at its root representational in nature as each has sought to gain exclusive bargaining rights for the employees of the many building contractors engaged in residential framing work - a sector largely unorgan­ized prior to this decade. It is a dispute characterized by great acrimony and recrimi­nation. It is a dispute many of the battles of which have been, are in the process of being, or will in the future be, fought in hearing rooms before this Board. It is a dis­pute characterized by two recurring themes: a relentless attack by Local 183 on bar­gaining rights earlier asserted by Local 27, or its predecessor United Brotherhood of Carpenters and Joiners of America Local 1190 ("Local 1190"); and a bitter counterat­tack by Local 27 of the linchpin of Local 183's drive to dominate residential framing -the subcontracting clause it has successfully negotiated with employers, builders, developers and owners, the effect of which has been to squeeze out of framing work those contractors whose employees are represented by Local 27.

8. The saga begins in the summer of 1981 with the filing of a great number of competing applications for certification by both locals seeking bargaining rights for the employ­ees of a variety of contractors engaged in framing carpentry within the residential sec­tor. These various applications were consolidated and put down to be heard together in a single proceeding which, by convention before us, the parties have referred to as the Montemar certification proceedings. Hearings were extremely drawn out and extended from the summer of 1981 to that of 1983 at which time Local 1190 withdrew, both as applicant in their own applications for certification and as intervener in those filed by Local 183. But much had occurred in the interim. The Montemar certification proceedings were dominated by a host of allegations made by Local 183 of miscon­duct on the part of both the respondent employers and Local 1190 whether as appli­cant or as intervener. These reached their apogee with the filing in May 1983 of a sec­tion 89 complaint of unfair labour practice filed by Local 183 against Local 1190 and sundry other parties (Board File 0320-83-U) alleging breaches of sections 13, 48 and 64 of the Act, the particulars of which were drawn from evidence adduced in the Montemar certification proceedings. In addition, Local 183 sought the rescission and revocation by the Board of all certificates granted to Local 1190 within the residential sector of the housing industry from June 1981 to that date. 5ome 70 certificates were so impugned.

9. Faced with that onslaught, Local 1190 was quick to retaliate, and on June 15, 1983 filed its counter-complaint [the Bureau complaint] under section 89 of the Act against Local 183 and the employers and employer associations with which it had a bargaining relationship governing framing carpentry within the residential sector~ asserting breach of sections 48, 64, 66, 67 and 70 of the Act (Board File 0554-83-U). Now, although it was there alleged that Local 183 had, in certain circumstances, entered into collective agreements without first establishing as a foundation, bargaining rights for the employees affected as required by the Act, such allegation was desultory at best.... The focal point of Local 1190's complaint was something quite different -namely, the subcontracting clause found as a principal feature in each of the collective agreements which Local 183 had entered into with the various employers and employer organizations engaged in carpentry framing work within the residential sec­tor, the effect of which was to limit such work to those contractors having a bargain­ing relationship with Local 183. The relief sought was that the collective agreements referred to be declared null and void or, alternatively, that the subcontracting clauses therein contained be so declared and so to be of no force and effect. Thus, in response to the attack on the integrity of its bargaining relationships premised on a failure on its part to hold bargaining rights for the employees of those employers with whom it claimed a bargaining relationship, Local 1190 likewise attacked the integrity of the bargaining rights asserted by Local 183, but by impugning the validity of the subcontracting clauses through which it had aggrandized for itself an ever-expanding share of framing carpentry work in the residential sector.

10. Meanwhile, hearings in the Montemar certificate proceedings were ongoing before a panel chaired by Vice-Chair Furness and these were scheduled for continuation on June 23, 1983. Counsel for Local 183 had sought the consolidation of its section 89 complaint (Board File [0320-83-U]) with those proceedings and although the Board has acceded to that request, it was determined on that date to consider the two mat­ters seriatim particularly in light of the fact that the section 89 complaint had only been filed well after the certification proceedings had been underway. A further com­plication was the ongoing strike called by Local 1190 against the contractors for [whose] employees it held bargaining rights, a strike which Local 183 asserted was called in collusion with those contractors in order to undermine its organizational drive within the sector. In point of fact, the certification proceedings, which it had been thought would extend well into 1984, were unexpectedly brought to a close by the earlier noted withdrawal by Local 1190 in November 1983 of its own applications for certification and its interventions in those of Local 183. That turn of events resulted in the grant of further certificates to Local 183 with respect to a large number of contractors. The Furness panel never did commence hearings in the section 89 complaint filed by Local 183 because of an accommodation reached between it and Local 1190 and to which we now turn.

11. Hearings in [the Bureau complaint] were scheduled to commence in early June 1983 before a panel of the Board chaired by Vice-Chair Burkett. In a preliminary ruling later reduced to writing (unreported, July 11, 1983) that panel of the Board rejected the preliminary motion made by Local 183 that the complaint be dismissed for failure to make out a prima facie case. That ruling was in the following terms:

Oral Ruling

We are not prepared to dismiss this complaint, which alleges in part that the no employer support provisions of section 48 of the Act have been breached and further, that the entering into of the subcontracting clause at issue was designed to interfere with the organizing, certification and collective bargaining of the complaint trade union, on the grounds that there is no prima facie complaint made out. Where it is alleged, as in this case, that the respondent Labourers' International Union of North America, Local 183, as bargaining agent for a number of residential home builders (who do not directly employ carpenters) has entered into a collective agreement with the builders that provide a preference in the subcontracting of carpentry work to car­penter contractors who are in contractual relations with the Labourers' Union, at a time when there is ongoing competition between the Labourers' Union and the Carpenters' Union in respect of the bargaining rights of carpenters and carpenters' apprentices employed in residential home building by these carpenter contractors, we are not prepared to find that there is no prima facie case made out.

This matter will be decided by the Board after the parties have called their evidence and the Board has the benefit of full argument. Having said this we acknowledge that on its face, other than for the fact that the union on whose behalf the subcontracting clause operated in The Metropolitan Toronto Apartment Builders Association, [1978] OLRB Rep. Nov. 1022 case had a craft claim to the work, this complaint is difficult to distinguish from The Metropolitan Toronto Apartment Builders Association case supra and therefore, in the end the Board may be called upon to either reaffirm, modify or overrule it.

We are satisfied that the complainant, as a union with craft jurisdiction over carpentry work, as a union attempting to organize carpenters of carpentry contractors operating in the residential home building sector, and as a union holding bargaining rights in respect of the carpenters employed by a large number of such contractors has status to bring this complaint.

Given the surrounding circumstances we are not prepared to find that the complaint, or any part of it is untimely and, therefore, should not be heard. However, the delay in responding to the events complained of in paragraphs 1, 2 and 3 of Schedule B may affect remedy.

This is a matter in which the complainant will proceed first. The Board will entertain submissions at the conclusion of the case as to where the legal burden falls.

8 The proceedings proper commenced with the calling by Local 1190 of its principal witness, Mr. Weller, who testified, inter alia, to the extent of the bargaining rights held by Local 1190 in the residential home building sector. It is to be recalled that Local 183 had earlier in the Montemar certification proceedings and in its own section 89 complaint, already filed but not yet heard, sought to attack the validity of those bargaining rights. In the section 89 complaint proceedings before the Burkett panel, Local 183 continued with that offensive, but now raising the same issue as a defence to the allegations made against it. The Burkett panel ruled that such was a valid defence and could be pursued by way of cross-examination of Mr. Weller. However, Local 183 could do so effectively only on observance by Mr. Weller of the provisions of a subpoena duces tecum which Local 183 had only succeeded in serving on him on the date set for its cross-examination of the witness. Compliance with the ruling of the Board to that effect, reached only after lengthy wrangling between the parties, could only be obtained by the grant of an adjournment, and such was given.

9. The case was scheduled for further hearing in mid-November, 1983 but those continu­ation proceedings never took place. It is to be recalled that at that time Local 1190 withdrew from the Montemar certification proceedings, and fast on the heels of that development, the two locals reached an accommodation regarding the respective sec­tion 89 proceedings each had filed against the other. By letters dated November 15, 1983 counsel for each advised the Board of their agreement to adjourn Board Files 0320-83-U and 0554-83-U [the Bureau complaint] sine die. The Board, in accordance with its normal practice granted the adjournments sought on November 18, 1983 on the following terms:

Having regard to the agreement of the parties, the Board hereby consents to adjourn this complaint sine die, for a period not exceeding one year. Unless within that time, the parties request that the Board proceed with the matter, it will be terminated.

Insofar as [the Bureau complaint] was concerned, there matters lay dormant for close to a year, when, on November 8, 1984 Local 1190 requested, by letter addressed to the Registrar of the Board that there be a resumption of hearings in its section 89 complaint. That request was never acknowledged by the Board, nor did it list the matter for continuation of hearing. We return to that complaint later in this recitation of events.

10. Now, although there was a moratorium on the section 89 complaint front, no general cease fire had been declared in the war for ascendancy in carpentry framework within the residential sector, and indeed the struggle went on unabated. The terrain however changed, as the parties moved from the simple filing of complaints under section 89 of the Act to a more varied strategy, with Local 183 seeking to enforce its no subcon­tracting clauses to the exclusion of Local 1190 by the referral to arbitration under sec­tion 124 of grievances for alleged breaches thereof. This was often coupled with the simultaneous filing of applications seeking relief under the provisions of section 1(4) of the Act and further complaints under the provisions of section 89. Local 1190 was as active in the pursuit of its objectives seeking recourse in those same provisions of the Act and as well in the self-contained 'code' governing the resolution of jurisdic­tional disputes as contained in section 91 of the Act. The number of applications and counter-applications filed pursuant to these various provisions of the Act over the next several years is quite formidable. Many were settled, withdrawn, or simply not proceeded with. Others were more vigorously prosecuted and these we highlight here. It is important to recognize that underlying all of these proceedings was a com­mon objective and unifying theme - the assault of the integrity of the bargaining rela­tionships each of the protagonists was attempting to maintain and expand. Of particu­lar relevance for our purposes was the continual and unabated assault by Local 1190 on Local 183's principal instrument for solidifying its position within the residential framework sector - the subcontracting clause as found within its collective agree­ments. Like a recurring refrain, Local 1190 sought in its many applications a declara­tion that either the underlying collective agreement, or at least the no subcontracting clauses therein contained should be declared invalid, void 'and of no effect. We turn to the principal applications filed.

11. In March, 1984 Local 1190 filed two related applications, a section 1(4) against three contractors, Attica Investment Inc., T/A Fairbank Carpentry, and E. & R. Carpentry Inc., (Board File 2984-83-R); and a section 89 complaint against Local 183 (Board File 2985-83-U). The section 1(4) matter was settled to the satisfaction of all parties concerned, and the section 89 complaint withdrawn by Local 1190. Now although Local 1190 there did not directly attack the subcontracting clauses found in the Local 183 collective agreements, both Attica and E. & R. Carpentry filed replies seeking the same declaration of nullity which we have seen in earlier Local 1190 applications. As noted, however, these matters were resolved directly between the parties. This pre­liminary skirmish was followed by a series of more hotly contested applications com­mencing in the summer of 1984.

12. First of these was the filing by Local 183 of a Referral of Grievance to Arbitration under section 124 of the Act alleging breach by a contractor, Lakeview Estates of the no-subcontracting clause to which it was bound as a result of a so-called 'pickup' agreement between it and Local 183 whereby the terms of the collective agreement between the Local and the Toronto Housing Labour Bureau became binding upon it (Board File 0985-84-M). Five days subsequent to the filing of that referral, Local 183 filed an application under the provisions of subsection 1(4) of the Act in respect of two contractors which it alleged were carrying on associated or related activities so as to constitute a single employer within the meaning of the statute - Montemar Con­struction Ltd., and Trimar Carpentry (Board File 1023-84-R). We are familiar with Montemar from the earlier certification proceedings and indeed Local 183 had been certified as bargaining agent for its employees engaged in frame carpentry work by Board certificate dated November 1, 1983 (Board File 0746-81-R). Trimar was engaged as the framing carpentry subcontractor on the Lakeview site. (The Lakeview and Trimar matters, although dealt with separately by the Board, were in fact interre­lated in the history of the two sets of proceedings.) In October, 1984 Local 183 filed a section 89 complaint against Local 1190, Trimar and Montemar (Board File 1736-84-U). That complaint and the section 1(4) application (Board File 1023-84-R) were consolidated and listed for hearing in January 1985 and at that time the Board directed that it would deal first with the question of the status of Local 1190 to intervene in the section 1(4) proceedings as a preliminary matter and entertained evidence in that regard. Since then (and subsequent to the hearings in the instant case), the Board has varied that direction by decision dated March 24, 1987 and directed that both the section 1(4) application and the section 89 complaint be set down for hearing on the merits.

13. Hearings in the section 124 grievance proceedings against Lakeview Estates, (Board File 0985-84-M) were adjourned after the Board ruled that Local 1190, which had appeared at the proceedings had established a prima facie case that the grievance involved a dispute over the assignment of work which ought more properly to be dealt with under the jurisdictional dispute provisions under the Act. Local 1190, which claims bargaining rights for the employees of Trimar, subsequently filed a complaint under section 91 of the Act (Board File 1201-84-J) and hearings in that matter were held in the fall of 1984 concurrently with the proceedings in Board Files 1023-84-R and 1736-84-U before panels of the Board differently constituted but both chaired by Vice-Chair 5atterfield. Local 183 argued vigorously in the section 91 proceedings as a preliminary matter that the Board ought to refuse to entertain the complaint [on the basis of] it being an abuse of its process in light of the identical nature of the allega­tions made therein and in the section 89 complaint filed by Local 1190 against Local 183 that had been adjourned almost one year earlier [the Bureau complaint]. The Board reserved on that preliminary motion, finally argued in January 1985, but has since the hearing of the instant case issued a decision declining to exercise its discre­tion to refuse to entertain the section 91 complaint as sought by Local 183 and directed that the matter be relisted for hearing (decision dated April 13, 1987, Board File 1201-84-JD). The matter has since been set down to be heard by a panel of the Board differently constituted on October 7 and 8, 1987.

14. Meanwhile, Local 183's defensive actions against what it perceived as intrusions by Local 1190 into the residential framing sector continued unabated. Various other sec­tion 124 referrals were filed against Lakeview Estates, the thrust and intent of which was similar to that first filed in Board File 0985-84-M which had prompted the section 91 complaint by Local 1190. In December 1984 those multiple grievance proceedings by Local 183 against Lakeview Estates were settled (Board Files 0985-84-M, 1504-84-M and 2386-84-M). Nor was Local 1190 inactive. In October 1984 it filed a section 89 complaint against Local 183 and two contractors, Karl Thier Construction Ltd. and Penka Carpentry Ltd., (Board File 2006-84-U) and a related section 1(4) application against the two contractors (Board File 2133-84-R). Local 1190 holds bargaining rights for Karl Thier and, in fact, the matter was settled to its satisfaction and the complaint against Local 183 withdrawn. That occurred in early December 1984 at approximately the same time that Local 183 had settled ... several section 124 griev­ance referrals with Lakeview Estates. It is to be recalled that Local 1190 had sought status at those proceedings as well, and indeed at the time of the settling of these mat­ters between the principal parties, Local 1190 advised Local 183 that it intended to file a further section 89 complaint against it on terms substantively identical to those in [the Bureau complaint].... Now, although no such complaint was ever filed, a draft was in fact given to Local 183 at that time, and a copy has since been filed in evidence in these proceedings. There the complainant seeks the same [relief] earlier sought, a declaration of nullity of the purported collective agreement between Lakeview and Local 183 or, in the alternative, of the subcontracting clauses contained therein. Of particular note is the admission found in the draft section 89 complaint that the allega­tions made against Local 183 and the issues raised are identical there and in Board Files 0554-83-U [the Bureau complaint], 0985-84-M, 1201-84-JD, 1504-84-M, and 2386-84-M.

15. In the Presidential decision, the Kuttner panel characterized the issue before it as fol­lows (in paragraph 1 of their decision): "Ought the Board to entertain a section 89 complaint, the substance of which is already the subject of complaint proceedings pending before it - and one moreover, arising from facts and circumstances long known to the complainant but concerning which it has chosen not to press for remedy?" In that case, counsel for Local 183 argued that the Board ought not to entertain the complaint on the grounds of abuse of process, unconscionable delay, and res judicata. The Kuttner panel rejected counsel's contention that the matter was res judicata, but found merit in his other submissions. In doing so, they wrote, in part, as follows:

16 We turn then to consider the issues of abuse and delay, which we see as closely interrelated factors which cannot but lead us to exercise our statutory discretion against the complainant by declining to entertain this application as requested.

17. A recurrent theme found in the jurisprudence emanating from both the Labour Boards and the Courts is that delay is inimical to the furthering of a healthy collective bargaining relationship. Mr. Justice Pigeon captured the essence of that theme in Komo Construction Inc. et al. v. Commission des Relations de Travail du Quebec, et al. [1968], 5.C,R. 172 when he cautioned:

"II ne taut pas oublier que la Commission exerce sa jurisdiction dans une matiere oft generalement tout retard est susceptible de causer un prejudice grave et irremediable" (at p. 176).

The same theme is echoed in the truism "Labour relations delayed are labour rela­tions defeated and denied" often repeated in decisions of both Boards and Courts. See General Bearing Services Ltd., [1980] OLRB Rep. Aug. 1200 where both Board and Court decision are collected. It is said that this concern is particularly acute in certification proceedings (ibid p. 1202), although it is by no means so limited. It is a concern expressed as well in proceedings such as these where a complaint of unfair labour practice has been filed against a party or parties alleging breach of our labour legislation. Indeed, in several jurisdictions, legislators particularly sensitive to the "prejudice grave et irremediable" which could arise in the failure to prosecute such a complaint timeously have limited severely the time period within which these may be filed. See for example the New Brunswick Industrial Relations Act, RSNB 1973 c. 1-4, s.106(11) - 90 days; the Canada Labour Code, R.S.C. 1970, C.L.-1 (as amended), Div. IV, s.187(2) - 90 days and see as well Upper Lakes Shipping Ltd. v. Shehan et al. (1979), 1979 CanLII 203 (SCC), 95 D.L.R. (3d) 25 (5CC.). In jurisdictions such as ours, the concern is not the less acute solely because of the absence of such a statutory time bar. Rather, it has been subsumed into and found expression in the Board's jurisprudence with respect to the statutory discretion vested in it by section 89 of the Act to entertain a complaint filed pursuant to its provisions.

18. The underlying collective bargaining principles which inform the Board's exercise of its discretion, and the relevant factors to consider where it is asked to exercise its dis­cretion against the complainant are best expressed in the Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420, where Vice-Chair MacDowell, speaking for the panel, wrote:

19. It is by now almost a truism that time is of the essence [in] labour rela­tion matters. It is universally recognized that the speedy resolution of out­standing disputes is of real importance in maintaining an amicable labour-management relationship. In this context, it is difficult to accept that the Legislature ever envisaged that an unfair labour practice, once crystallized, could exist indefinitely in a state of suspended animation and be revived to become a basis for litigation years later. A collective bargaining relation­ship is an ongoing one, and all of the parties to it - including the employees - are entitled to expect that claims which are not asserted within a reason­able time, or involve matters which have, to all outward appearances, been satisfactorily settled, will not reemerge later. That expectation is a reason­able one from both a common sense and industrial relations perspective. It is precisely this concern which prompts parties to negotiate time limits for the filing of grievances (as the union and the employer in this case have done) and arbitrators to construct a principle analogous to the doctrine of laches to prevent prosecution of untimely claims. (See Re C. G. E. 3 L.A.C. 980 (Laskin); and Re Oil Chemical and Atomic Workers, Local 9-672 and Dow Chemical of Canada Limited, [1966] 18 L.A.C. 51 (Arthurs)).

20. In recognition of the fact that it is dealing with statutory rights, the Board has not, heretofore, adopted any rigid practice with respect to the matter of delay - holding, in most cases, that it will simply take this matter into account in determining the remedy if a statutory violation is estab­lished. However, whatever the merits of this approach, the Board must also keep in mind the potentially corrosive effect which litigation can have upon the parties' current collective bargaining relationship - quite apart from the outcome. Adversarial relationships are pervasive enough in our industrial relations system without the resurrection of ghosts from the past. In the Board's view, the orderly conduct of an ongoing collective bargaining rela­tionship and the necessity of according a respondent a fair hearing both require that unions, employers and employees recognize a principle of repose with respect to claims that have not been asserted in a timely fash­ion. If such claims are not launched within a reasonable time, the Board may exercise its discretion pursuant to section 89 and decline to entertain them.

21. A perusal of the Board cases reveals that there has not been a mechani­cal response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory viola­tion; the nature of the remedy claimed and whether it involved retrospec­tive financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of wit­nesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has rec­ognized that some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.

See as well Sheller-Globe of Canada Ltd., [1982] OLRB Rep. Jan. 113, application for judicial review sub. nom.; Re Dhanota and International Union United Automo­bile, Aerospace & Agricultural Implement Workers of America (U.A. W.), Local No. 1285; Sheller-Globe of Canada Ltd., (1983) 1983 CanLII 3085 (ON HCJDC), 148 D.L.R. (3d) 569 (H.C.J., Div. Ct.) dismissed.

19. In calculating a measurement "in months rather than years", it does not avail the complainant to plead that the particular collective agreements and the contracting clauses which they contain are of a recent provenance. The Toronto Housing Labour Bureau, of which Bramalea Limited is a member, has had a collective agreement on identical terms with Local 183 since 1983; similarly so in the case of the Presidential Group Limited and Presidential Group (Brookshire) Limited. Nor may the complain­ant assert that its' [cause] of action arises in the attempt by Local 183 to enforce the provisions of the impugned subcontracting clauses against the contractors bound, either formally as in the case of Presidential (Board File 1324-85-M) or informally as in the case of Bramalea, both of which incidents occurred shortly before the filing of the instant complaint. To do so would be to elevate form over substance in a manner which would make a mockery of the fundamental collective bargaining principles which inform the Board's determinations in the exercise of its section 89(4) discretion in much the same manner that the late Chief Justice Laskin characterized the attempted filing of a complaint of unfair labour practice in the Upper Lakes Shipping case, supra, in the face of a statutory time bar. He wrote there at p. 29:

"I do not disagree with the Federal Court of Appeal that [it] was appropri­ate to measure the timeliness of a complaint from March 1, 1973 when the subject matter thereof became a prohibited practice. However, I cannot agree that there can be any number of requests and refusals, relating to the same circumstances, to enable a complainant to found a succession of com­plaints under section 187(1) so long as he takes care to bring them succes­sively within ninety days of any [request] and refusal. That would make a mockery of section 187(2) even if it was applicable irrespective of res judicata, which was not mentioned by the Federal Court of Appeal."

Here, there is no question but that the substance of this complaint long predates the particular agreements and incidents complained of. Indeed, the collective bargaining relationships between Bramalea, Presidential and Local 183 serve merely as a conve­nient foil for the prosecution of a complaint which Local 27 and its predecessor in title, Local 1190, have had against Local 183 and any and all of the many contractors, developers and builders within the residential housing sector with which it has a bar­gaining relationship since the commencement of this representational dispute in 1981. This is as much as admitted by the complainant in this very application when it advises that the issues here raised are identical to those raised in its earlier filed complaint [the Bureau complaint], surely, it was with the filing of that complaint in June 1983 that the issue here sought to be litigated crystallized and the incidents here related and complained of could be, at most, subsequently materialized particulars in that original complaint.

20. On such a reading of the matter it becomes a foregone conclusion that the delay here occasioned must be fatal to the filing of this complaint. Each of the factors enumer­ated above in the Mississauga case can only be marshalled against the interest of the complainant. The length of the delay is excessive and arises years after it had become aware of the alleged statutory violations; the nature of the remedy claimed would strike at the heart of a pattern of hundreds of bargaining relationships which have developed, flourished and expanded within the residential framing sector of the con­struction industry since the alleged contravention first arose; there is in addition the existence of factors which would hamper and impede a fair hearing of the issues in the setting of freshly filed section 89 proceedings, including fading recollection, unavaila­bility of witnesses, deterioration of evidence and the disposal of records. From all the foregoing, the Board concludes that, setting aside for a moment the convoluted his­tory of the struggle between these two protagonists, the delay in the prosecution of a section 89 complaint by Local 27 attacking the integrity of the bargaining relationships entered into by Local 183 on the strength of no subcontracting clauses of which Local 27 or its predecessor Local 1190 were aware from their first inception and with respect to which exception has been taken in principle from almost that same moment, would alone suffice for the Board to conclude that it ought to exercise its section 89(4) dis­cretion to refuse to entertain the complaint here filed.

21. There is, however, a further consideration which impels the Board to this conclusion, and that is the abuse inherent in the very filing of the instant complaint. For our read­ing of the circumstances of this case make it at once clear to even the most casual observer, that the complainant here has sought to file identical section 89 complaint proceedings arising out of the same cause. Not only that, but the earlier complaint filed stands adjourned, if not at the instance, then at least on the consent of the com­plainant at the very moment when counsel for Local 183 was on the point of cross-ex­amining the principal witness of the complainant who, whether by way of evasion or innocent happenstance, had avoided service of a subpoena duces tecum issued at the instance of Local 183. In such circumstances, to acquiesce as requested and entertain the instant complaint would be to countenance the most flagrant abuse of the Board's process. It is simply inconceivable that a tribunal judicially charged would permit the suspension of litigation already in process and its refiling and prosecution anew at the instance of the complainant. In circumstances somewhat analogous to these, McRae, J. has characterized the bringing of multiple proceedings arising Out of the same cir­cumstances and seeking the same relief as "frivolous and vexatious". See Mascan Corporation v. French (1986) 8. C.P.C. (2d) 187 (H.C.J.). We are of a similar mind and, if so required, would, even in the absence of the delay here present, have exer­cised our section 89(4) discretion against the complainant as the filing of the instant complaint is an abuse of the Board's process

22. It is common ground among the parties that the Dellbrook complaint raises similar issues to those raised in the Bureau complaint and in the Presidential complaint. Moreover, as acknowledged by counsel for the Carpenters in his able submissions before this panel, the factual circumstances regarding the filing of the Dellbrook complaint are indistinguishable from the factual circumstances regarding the filing of the Presidential complaint. The reasoning applied by the Kuttner panel in deciding to dismiss the Presidential complaint is equally applicable to the Dell-brook complaint. We respectfully adopt and apply that reasoning in reaching a similar decision in respect of the latter. Accordingly, the Board, in the exercise of its discretion under section 89(4) of the Act, hereby declines to inquire into the Dellbrook complaint. The Carpenters' willingness to have that complaint consolidated with the Bureau complaint does not assist their position as, for the reasons set forth below, we are of the view that the Bureau complaint should also be dismissed.

23. As indicated above, the Bureau complaint was filed with the Board on June 15, 1983. The hearing of that complaint commenced on June 27, 1983 before a panel of the Board composed of K. M. Burkett who, prior to leaving the Board in May of 1984 to pursue a career as an arbitrator and mediator, was the Board's Alternate Chairman; Board Member J. P. Wilson, who passed away in September of 1987; and C. A. Ballentine, the only member of that panel ("the Burkett panel") who is still on the Board. In their preliminary ruling quoted in paragraph 7 of the Presiden­tial decision, the Burkeft panel found that the complaint was not untimely, but indicated that the Carpenters' "delay in responding to the events complained of in paragraphs 1, 2 and 3 of Schedule B may affect remedy." Those paragraphs read as follows:

24. On August 14, 1981, the Respondents, Labourers' International Union of North America, Local 183 ("Local 183") and Greenpark Homes, entered into a collective agreement.

25. On December 4, 1981, Local 183 and the Respondents, Philmor Developments Limited and Mor-Alice Construction Limited entered into a collective agreement.

26. Both the collective agreements referred to in paragraphs 1 and 2 hereof contained the follow­ing provision:

"Effective January 1, 1982, the Employer shall only employ and/or sub-let work to a carpentry contractor who is in contractual relations with the Union. However, should there be no agreement negotiated by the Union and any group of carpentry contrac­tors for this type of work effective January 1, 1982, then the Employer shall only be bound to employ such carpentry contractors as of the effective date of the appropriate carpentry collective agreement."

Thus, the events about which the Carpenters had delayed in filing a complaint occurred in August and December of 1981, in respect of a collective agreement provision which was to become effec­tive on January 1, 1982.

10. As indicated above, the hearing of the merits of the Bureau complaint commenced in July of 1983 before the Burkett panel. Local 1190 called Kenneth Weller as its first witness. Local 1190's examination in chief of Mr. Weller was completed on July 6, as was the Bureau's cross-ex­amination of that witness. Cross-examination by counsel for Local 183 was to commence on July 8. On July 7, Local 183 obtained a subpoena duces tecum, but was unable to serve it on Mr. Weller until the next day. On July 8, 1983, after hearing submissions regarding the scope of the subpoena and the propriety of Local 183 seeking to attack Local 1190's residential home building bargaining rights as a defence to the complaint, Mr. Burkett made the following ruling on behalf of the panel (as recorded in Exhibit L6, which is a transcript of the July 8, 1983 hearing):

The panel has been asked to rule upon the scope of the subpoena served on Mr. Weller this morning and indirectly our ruling in this regard affects the scope or the extent of the scope of our inquiry into this matter generally. The Complainant Carpenters' Union, alleges in this mat­ter that the Respondent, Local 183 of the Labourers, unlawfully interfered with the bargaining rights in the residential home building sector. Mr. Weller, the first witness for the Complainant, Carpenters Union, testified to the extent of these bargaining rights in his evidence in-chief. The Respondent, Labourers' Union, seeks to attack the validity of these bargaining rights as a defence to the allegations against it. We are satisfied that this is a proper defence and that evi­dence called in respect thereof regardless of the existence of a separate Section 89 complaint launched by Local 183 challenging the bargaining rights of the carpenters is relevant and can be pursued in the cross-examination of Mr. Weller.

The Respondent, [Local] 183, was entitled to subpoena Mr. Weller when it did. Furthermore, we are satisfied that the documents demanded with the amendment to paragraph 3C of the sub­poena as discussed insofar as they may support the Local 183 defence are relevant and, there­fore, Mr. Weller is required to comply with the subpoena as modified in its entirety.

(Before adjourning, the panel also ruled that counsel for Local 1190 was entitled to confer with Mr. Weller upon receipt of the particulars of Local 183's aforementioned defence.)

11. The Bureau complaint was scheduled for continuation of hearing on November 18, 1983. However, that hearing was cancelled on November 16 after counsel notified the Registrar that the parties had agreed to adjourn it (and File No. 0320-83-U) sine die. In accordance with the Board's usual practice in such matters (as set forth in Practice Note No. 14, dated March 24, 1981), the Burkett panel issued the following (unreported) decision on November 18, 1983 in respect of the Bureau complaint:

Having regard to the agreement of the parties the Board hereby consents to adjourn this com­plaint sine die for a period not exceeding one year. Unless within that time, the parties request that the Board proceed with the matter, it will be terminated.

(An identical decision was also issued at that time in respect of File No. 0320-83-U.)

12. The Bureau complaint lay dormant for almost a full year until counsel for the Carpen­ters wrote as follows to the Registrar (with a copy to counsel for the Labourers) in a letter dated November 8, 1984:

On behalf of the Complainant in the above-noted matter [Board File No. 0554-83-U] we request the Board to resume hearings in the above-noted Complaint.

That letter was received by the Board on November 9, 1984, but was not acknowledged. It prompted the following response from Labourers' counsel in a letter delivered to the Board (and to Carpenters' counsel) on November 13, 1984:

We are in receipt of a letter addressed to you from David McKee dated November 8, 1984 in which he requested that the Board resume hearings in file number 0554-83-U.

On November 15, 1983 the undersigned wrote to the Board to indicate that the parties had agreed to adjourn Board Files 0320-83-U and 0554-83-U sine die. A copy of that letter is attached hereto. The letter reflected the agreement of the parties that both s.89 complaints would be adjourned sine die.

The Board issued decisions in respect of both matters on November 18, 1983 as follows:

"Having regard to the agreement of the parties the Board hereby consents to adjourn this complaint sine die for a period not exceeding one year. Unless within that time, the parties request that the Board proceed with the matter, it will be terminated."

The Board in issuing its decisions did not countenance allowing the parties to allow virtually a year to elapse before they proceeded with the complaints but rather simply indicated that if the matters were not proceeded with within the year they would be automatically terminated.

Local 183 submits that there has been laches and unreasonable prejudicial delay by Local 1190 in the processing of the complaint and that it is unfair and unreasonable in all of the circum­stances to now allow Local 1190 to proceed with the matter. The Board is urged not to schedule further hearings in this matter and in the alternative, to schedule a hearing to entertain the sub­missions of the parties as to why the Board should not exercise its discretion to refuse to enter­tain the complaint

13. Reference was made to the Bureau complaint in the Presidential complaint. Paragraph 17 of Schedule "A" to the latter complaint reads as follows: "The same issues raised by this com­plaint are also raised in a complaint between Local 1190 and Local 183 (Board File No. 0554-83-4 [sic]), which Local 1190 has asked the Board to relist for hearing." Counsel for the Carpenters referred to that paragraph in a letter dated December 2, 1985 to counsel for the Labourers, a copy of which was sent to the Board's Registrar.

14. The Dellbrook complaint was filed with the Board on June 12, 1986. The complaint was accompanied by the following letter from counsel for the Carpenters:

We enclose herewith a copy of a complaint under section 89 of the Act. The complaint makes reference to two complaints filed by Local 27 in which similar issues are raised, namely Board File 0554-83-U and 1445-85-U. As you are no doubt aware, we have asked on behalf of our cli­ents to have the first matter relisted for hearing. The second matter was last heard June 5th, 1986.

The Board may make an order with respect to the separation or order or [sic] consolidation of the aforementioned files. It might well be possible to combine this complaint with the previous two and certainly with Board File 1445-85-U if, as we suspect, Dellbrook Homes as [sic] entered into the collective agreement between Local 183 and the Toronto Housing Labour Bureau. If it has not done so, there is no reason to consolidate the matters.

15. On December 9, 1986, Frank Rimes, the Business Manager of Local 27, wrote to the Chair of the Board to complain, among other things, that the Bureau complaint had not been relisted for hearing. In that letter Mr. Rimes stated that "[m]any requests have been made to have this matter relisted." However, there is no cogent evidence before the Board of any such requests, other than the request contained in counsel's letter of November 8, 1984, and counsel's reference to that request in the letter quoted in the preceding paragraph of this decision.

16. On January 7,1987, the Registrar forwarded to the parties to the Bureau complaint a (Form 8) Notice of Hearing which indicated that a Board hearing would take place on January 26, 1987 for the purpose of "permitting the complainant to show cause as to whether the Board should now entertain the complaint." Notice of hearing was also forwarded to the parties to the Dellbrook complaint in respect of that date. At that hearing the parties advised the Board panel (which con­sisted of Vice-Chair Satterfield and Board Members R. D. McMurdo and H. Kobryn) that the decision which they were awaiting in the Presidential complaint might assist them in determining how to proceed and, accordingly, that they were in agreement that the two complaints should be adjourned pending that decision. Having regard to that agreement, the panel adjourned the mat­ters "until one of the parties requests that they be brought on for hearing".

17. After the parties were advised by telegram in March of 1987 that the Kuttner panel had decided to uphold counsel for the Labourers' preliminary objection (and that reasons for the deci­sion would follow), counsel for the Carpenters wrote to the Registrar to request that the Board rel­ist the Bureau and Dellbrook complaints. The complaints subsequently came on for hearing on September 22, 1987 before a panel consisting of Vice-Chair Brown and Board Members Ronson and Grasso. After ruling that they had jurisdiction to hear the Labourers' motion for dismissal, deciding the order in which counsel would make their submissions concerning that motion, and arranging for an exchange of documents, that panel adjourned the matters and requested the par­ties to confer with the Registrar regarding further dates. These two complaints were subsequently listed for hearing before the present panel on December 14, 15, and 16, 1987. At the commence­ment of the hearing on December 14, the writer advised the parties that he had been assigned to replace Vice-Chair Brown, who was (and is) away indefinitely on sick leave. None of the parties objected to that substitution, although counsel for the Labourers maintained his objection, which had been unanimously rejected by Vice-Chair Brown and Board Members Ronson and Grasso, that only the Burkett panel had jurisdiction to deal with the Bureau complaint. In confirming that ruling, we noted that the death of Board Member Wilson had made it impossible to reconvene that panel. Moreover, section 102(4) of the Act expressly empowers the Chair to "from time to time assign the members of the Board to its various divisions" and to "change any such assignment at any time".

18. Labourers' counsel submitted that by November of 1984 when the Carpenters requested that the hearing of the Bureau complaint be resumed, the Carpenters were already precluded from proceeding on the basis of unreasonable delay. Counsel for the Carpenters, on the other hand, submitted that they were entitled to request that resumption at that time, and referred the Board to Brytor International, [1985] OLRB Rep. March 372, in support of his position. In the circum­stances of this case, we find it unnecessary to decide that issue, as even if the Carpenters were enti­tled to wait until almost the end of that one-year period before requesting a resumption of hearing, their subsequent failure to follow up on that request in a timely fashion, to the prejudice of the other parties, makes it inappropriate to permit the complaint to proceed.

19. We agree with counsel for the Carpenters that the Board is responsible for some of the delay which has occurred in this case. However, when the Board failed to acknowledge counsel's letter of November 8,1984, and then did not relist the matter, one would expect that if the Car­penters truly wished to have the matter proceed, they or their counsel would have contacted the Registrar within a reasonable time to ascertain why nothing had happened, or would have for­warded a further written request urging that the matter be relisted as soon as possible. (See, gener­ally, Michael Baranowski, [1987] OLRB Rep. May 645, and Monte Carlo Carpentry, [1982] OLRB Rep. June 914.) This is particularly true in the circumstances of the instant case in which counsel for the Labourers responded to the Carpenters' request that the Board resume hearings in the Bureau complaint by immediately opposing that request on the basis of "laches and unreasonable prejudicial delay", and urging the Board not to schedule further hearings in the matter. Although the Carpenters made some reference to the Bureau complaint in other documents (as noted above), there is no cogent evidence of any such contact or further request having been made until June of 1986 when, in the covering letter which accompanied the Dellbrook complaint, counsel for the Carpenters stated: "As you are no doubt aware, we have asked on behalf of our clients to have [Board File 0554-83-U] relisted for hearing." The Carpenters' failure to take reasonable steps dur­ing that lengthy period to ensure that the Board was aware of their request to have the matter rel­isted, and that it was acting upon the request, created a situation in which the respondents would be substantially prejudiced if the Board were to now permit the complaint to proceed. As time passed, the difficulties involved in reconvening the Burkett panel to continue with the hearing became increasingly severe. As indicated above, Mr. Burkett left the Board in May of 1984, to pursue a career as an arbitrator and mediator. As time went by, the ever increasing demands which those roles made upon his time rendered it more and more unlikely that he would be in a position to make available in a timely fashion the number of hearing days required to complete the hearing of the Bureau complaint. With the demise of Board Member Wilson, it is now impossible to recon­vene that panel. In addition, the nature of the remedy sought by the Carpenters would strike at the heart of bargaining relationships which have developed, flourished, and expanded within the resi­dential framing sector of the construction industry since 1981, when the alleged contraventions first occurred. Having regard to all of the circumstances, we are unanimously of the view that it would not be in the best interests of sound labour relations to permit the Bureau complaint to proceed at this belated juncture.

20. For the foregoing reasons, the Board, in the exercise of its discretion under section 89(4) of the Act, hereby declines to inquire into these complaints. Accordingly, the complaints are hereby dismissed.