[1992] OLRB Rep. February 145
1988-91-JD Millwright District Council of Ontario, Local 1410, Applicant v. E. S. Fox Ltd. and Sheet Metal Workers International Association, Local 269, Respondents v. Ontario Sheet Metal and Air Handling Group, Intervener
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members D. A. MacDonald and C. A. Ballentine.
DECISION OF THE BOARD; February 17, 1992
1This matter was scheduled to be pre-heard by this panel on January 30, 1992. That morning, the parties agree to adjourn the pre-hearing conference "to a date to be fixed by the Board in consultation with the parties".
2Having regard to the agreement of the parties, the pre-hearing conference was adjourned. It is to continue (begin actually, since it is not yet begun) on a date or dates to be fixed by the Registrar. Whether the Registrar consults with the parties in that respect is left to her discretion. We note that this is the second time the pre-hearing conference has been adjourned. The parties' conduct demonstrates that delay is not a concern (to them) in this matter.
3We wish to comment on one further matter. In preparing to conduct the pre-hearing conference, the panel read the pre-hearing briefs submitted by the parties. We found all of them to be deficient.
4In its brief, the complainant pleads, at paragraph 14, that:
The factors of skills, training experience and qualifications favour an assignment of the work in dispute to the Millwrights. In particular, the work in dispute is very unique and highly specialized. Members of the Millwrights have performed identical work on two previous occasions for the employer and have developed the special skills and experience to perform the work in dispute.
What skills, training, experience or qualifications do the complainant's members have which favour an assignment of the work to them? What is it about the work in dispute which is unique and specialized, and which favours an assignment to members of the complainant? When, where and in what circumstances have members of the complainant performed identical work on two previous occasions for the employer?
5In paragraph 16 of its brief, the complainant pleads that:
The employer E.S. Fox has performed the Work in Dispute on a total of two other occasions. Both times the employer used exclusively Millwrights to perform the work in dispute.
Again, particulars are lacking. When, where and in what circumstances was the work performed? It is not generally sufficient to merely refer to a document contained elsewhere in the brief in that respect, and, in this case, the document referred to is itself both marked as a "draft" and not completely legible.
6In paragraph 17 of its brief, the complainant pleads that:
It is submitted that area and industry practice support the assignment of the work in dispute to the Millwrights. In particular, work of a similar nature was assigned to the Millwrights.
Was the work referred to the same or merely similar? If it was "similar", how was it different, and how was it the same from the work in dispute in this case? What are the particulars of the area and industry practice relied upon by the complainant? That is, what was the work and the nature of the project where it was done? When was it done? Where was it done? Who was the employer which assigned the work? Was the work done on a sub-contract? With which trade union(s) did all of the companies involved have collective agreements?
7In the brief submitted by the respondents Sheet Metal Workers International Association, Local 269 and Ontario Sheet Metal Workers' & Roofers' Conference (the "Sheet Metal Workers"), they plead at paragraph 10 that:
It is the practice of the Respondent E. S. Fox Ltd. to assign the Work in Dispute to the Sheet Metal Workers. On at least two prior occasions, the installation of a furnace at Alcan Canada Ltd. has been performed by Sheet Metal Workers.
In what way was the work involved in the "installation of a furnace of Alcan Canada Ltd." like the Work in Dispute herein? When and where was the work done? Who assigned the work? With which trade union(s) that the assigner of work have a collective agreement?
8In paragraphs 11 and 12, the Sheet Metal Workers plead that:
The Work in Dispute at the Project should be performed by employees experienced in doing work of this nature. Since Sheet Metal Workers members have always been associated with the Work in Dispute and other similar work, they are more qualified to perform the same than are members of Local 1410.
Throughout the province of Ontario. including OLRB Geographic Area #29, it is the well established practice of employers bound to the Sheet Metal Workers' Collective Agreement to assign the Work in Dispute to members of the Sheet Metal Workers. They have the skills, ability, experience and qualifications to perform such work in a competent and efficient manner.
What "similar" work is of relevance? What training, skills, ability, experience or qualifications do members of the Sheet Metal Workers have which favours the assignment of the Work in Dispute herein to them?
9In paragraph 15, the Sheet Metal Workers plead:
It is the practice of employers bound to the Sheet Metal Workers' Collective Agreement throughout the province of Ontario. including Board Area #29, to use Sheet Metal Workers to perform the Work in Dispute. As such, the Millwrights demand for the work is disruptive of industrial relations stability in the province.
What are the particulars of the practice being pleaded? Is the practice relied upon by employers bound to a Sheet Metal Workers' Collective Agreement as well as to a collective agreement with the complainant? In what way is the complainant's demand for the Work in Dispute disruptive of industrial relations stability?
10The respondent employer's brief is similarly lacking in particularity, especially in paragraphs 3, 5, 6 and 7.
11The above is intended to be illustrative rather than exhaustive. Further, it illustrates not only the deficiencies in this instance but also a general tendency by parties to submit "boiler plate" briefs in complaints with respect to the assignment of work. This approach is both counter productive and not in keeping with either the intent or letter of Board Practice Note #15. It not only retards and undermines the pre-hearing process, but also tends to prolong and complicate unnecessarily the hearing of such a complaint.
12Both these parties and the labour relations community in general would be well advised to submit properly particularized briefs. They may find the Board to be less receptive to boiler plate briefs which do little to define the parameters of the dispute or the litigation. They will almost certainly fin that the pre-hearing process will be more constructive and that the litigation itself, if required, will be more expeditious if they submit briefs which are properly particularized.