Parties and File Numbers
0512-00-R; 0665-00-U Labourers International Union of North America, Local 527, Applicant v. Thomas Fuller Construction Co. Limited, Thomas Fuller Construction Co. (1958) Limited, 494545 Ontario Inc., Fullercon Limited, Thomas G. Fuller & Sons Ltd., Responding Parties.
2428-99-R Labourers International Union of North America, Local 527, Applicant v. Thomas Fuller Construction Co. (1958) Limited, Thomas Fuller Construction Co. Limited, 494545 Ontario Inc., Responding Parties v. The Ottawa Construction Association, Intervenor.
2429-99-U Labourers International Union of North America, Local 527, Applicant v. Thomas Fuller Construction Co. Limited, Thomas Fuller Construction Co. (1958) Limited, 494545 Ontario Inc., Responding Parties v. The Ottawa Construction Association, Intervenor.
3426-98-G Labourers International Union of North America, Local 527, Applicant v. Thomas Fuller Construction Co. (1958) Limited, Responding Party.
BEFORE: David A. McKee, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; August 17, 2000
Decision
These are five applications brought pursuant to various provisions of the Labour Relations Act, 1995, S. O. 1995 ch. 1 ("the Act"). The applicant in all the files is Labourers' International Union of North America local 527 (“Local 527” or the “Union”). They have been filed at different times over the past two years.
Board File No. 3426-99-G is an application for the referral of a grievance to arbitration pursuant to section 133 of the Act filed on January 11, 1999. It named as responding party Thomas Fuller Construction Co. (1958) Limited (“Fuller 58”).
Board File No. 2428-99-R is an application under subsection 1(4) and section 69 of the Act seeking relief against Fuller 58, Thomas Fuller Construction Co. Limited (“Fuller”), and 494545 Ontario Inc. (“Ontario Inc.”). It was filed November 12, 1999.
Board File No. 2429-99-U is an application pursuant to section 96 alleging that Fuller, Fuller 58, and Ontario Inc. have violated various provisions of the Act. It too was filed November 12, 1999.
Board File No. 0512-00-R is an application for certification made pursuant to the construction industry provisions of the Act in respect of employees of Fuller, Fuller 58, Ontario Inc. Fullercon Limited (“Fullercon”), and Thomas G. Fuller & Sons Ltd. (“Fuller & Sons”). It was filed May 15, 2000. It also relies on subsection 1(4) of the Act.
Board File No. 0665-00-U is an application pursuant to section 96 alleging that Fuller, Fuller 58, and Ontario Inc., Fullercon, and Fuller & Sons have violated various provisions of the Act. It was filed May 30, 2000.
These matters all came on for hearing on August 15, 2000. On that day the parties agreed to count the ballots cast by persons employed by one of the responding parties in the certification application save and except the individuals specifically challenged and the persons alleged to have been on the payroll of Ontario Inc. The results of this vote count were inconclusive, and no further agreements were reached in that respect.
During the first day of proceedings, the parties reached two further agreements. First they agreed that Fuller, Fuller 58, Fullercon and Fuller & Sons (collectively and severally “the Fuller Companies”) carry on associated or related businesses or activities under common control and direction and should be treated as one employer for all purposes of the Act in these applications. Counsel for the Fuller Companies further conceded that the minimum statutory requirements set out in subsection 1(4) for the making of a declaration were present as between the Fuller Companies and Ontario Inc. The sole issue is whether the Board ought to exercise its discretion to grant such an order.
The exercise of this discretion relates to two different versions of “the deal” reached by the Union and Fuller 58 and Ontario Inc. The specific disputes relate to the terms of the discussion among the parties in 1981 and 1990, what sectors of the construction industry were covered by “the deal”, and the role of the Ottawa Construction Association (“OCA”). There is also an evidentiary issue about the admissibility of certain evidence relating to the Champlain Bridge job, and the staffing of that project.
With respect to this evidentiary issue, the parties advised the Board that the evidence with respect to the admissibility of the evidence and the actual evidence about the staffing of the project was the same. Accordingly the Board ruled that it would hear the evidence and determine its admissibility at the end of the case.
The different versions of the “deal” will be set out in the viva voce evidence given by the parties. The actions of both parties after 1981 and 1990 will undoubtedly be relevant in determining issues of credibility in this regard. However, eighteen years’ worth of construction contracts could, if introduced piece by piece constitute a colossal waste of time and resources. The Board is not prepared to hear many days of evidence about facts that are essentially contained in documents.
The Board therefore directs the parties to reduce this mountain of paper to a summary in chart form. Information will be set out in a chart containing eight columns headed as follows:
Project name and year;
Nature of project;
Value of project;
Owner;
Chain of relevant contractors;
Whether the contractors (other than the responding parties) were bound to a collective agreement with the applicant (Y/N);
Whether any of the responding parties in the chain of contractors hired labourers directly, and if so were they employed pursuant to the terms and conditions of a collective agreement;
Other comments.
The parties are free to vary this format (on agreement only) if other methods of presentation are clearer or if more information is needed.
This chart will be prepared initially by the responding parties and forwarded to the applicant’s counsel no later than October 18, 2000. Thereafter counsel for the applicant will have the opportunity to examine the records of the responding parties which are reflected in the summary, in Ottawa at their usual place of storage. He may have one advisor (who may change from time to time) with him. On or before November 22, 2000 the applicant will forward to counsel for the responding parties a revised version of these charts with additions or changes indicated. If there are disputes which can be resolved through a conference call, the applicant shall advise the Board on or before December 1, 2000 and arrange to have one set up. If the parties prefer, or if the Board will need to see certain documents to resolve the dispute, submissions may be made in writing on December 1, 2000 by both parties with a right of reply on December 6, 2000 for both parties. If there are disputes that cannot be resolved in that fashion, they will be the subject of evidence at the hearing of this matter. The chart will be finalised before the holiday break in December.
All other documents which are to be used in this hearing are to be exchanged by the parties during this process. These will include the documents arising out of the 1981 and 1990 discussions, the OCA documents, any documents necessary to resolve disputed issues arising from the preparation of the summary chart (there should be few or none) and the Champlain Bridge project documents. On or before January 5, 2000 counsel shall finalise the documents necessary for the hearing. The Board requests that the parties assemble these documents in a brief for use by the Board and witnesses. Again any disputes about production should be addressed in a conference call by December 1, 2000. The document brief should be finalised by January 5, 2001. One copy should be delivered to the Board in the manner specified at the hearing. Any document not produced in this manner will not be admitted as evidence without leave of the Board.
While it is probably unnecessary to do so, the Board orders that all parties and their agents, officers, counsel, employees and members are to keep confidential any of the documents produced in this proceeding, and any of the information contained in those documents. The information and documents are to be used for no purpose other than the conduct of the litigation of these applications.
These matters will continue in Ottawa on January 29, 30 31, February 1 and 2, 2001. The Registrar will advise of further dates and the place for these hearings. I am seized of these applications.
“David A. McKee”
for the Board