Carpenters & Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America v. General Commercial Construction Management Inc.
0998-00-G Carpenters & Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. General Commercial Construction Management Inc., Responding Party.
BEFORE: Harry Freedman, Vice-Chair.
APPEARANCES: James Robbins and Lister Tennant for the applicant; Pamela Yudcovitch and Joseph Mariani for the responding party.
DECISION OF THE BOARD; July 31, 2000
1This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1 as amended (the “Act”). The Chair of the Board authorized me to sit alone to hear and determine this matter pursuant to section 110(14)(a) of the Act.
2The parties advised the Board that they could not agree on the documents that the applicant sought to have the responding party produce for inspection prior to the hearing. Therefore, the hearing convened to deal with the applicant’s request that the responding party produce documents relating to projects in which it was involved from May 1, 1998 to the present. After receiving the parties’ submissions with respect to the applicant’s request for a production order, the Board made the following oral ruling:
The applicant has requested a broad production order requiring the responding party to produce for inspection documents relating to the work undertaken by it since May 1, 1998, the date the current collective agreement by which the parties are bound commenced operation, on the basis that the applicant suspects that the responding party has violated the Carpenters’ ICI provincial collective agreement.
The responding party is engaged in construction management and is bound by the collective agreement between the Carpenters’ Employer Bargaining Agency and the Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America effective May 1, 1998 and expiring April 30, 2001 by which the applicant is bound (the “ICI Agreement”).
The grievance filed by the applicant in this matter referred to two projects and was later amended to include a third. The responding party acknowledged that there was an error in the engaging of a sub-contractor on one of those projects and satisfied the applicant that there was no violation of the ICI Agreement on another of those three projects. There remains a dispute between the parties as to whether the responding party violated the ICI Agreement in respect of that third project. The responding party does not object to producing documents relating to carpentry work that was done at the three projects named in the grievance before me.
The issue before me at this stage of the proceeding is whether a production order going well beyond the particulars of the grievance filed in this proceeding is warranted.
In Mollenhauer Limited, [1987] OLRB Rep. Sept. 1156, the Board commented upon its power to order production of documents at page 1158:
The Board’s power to compel the production of documents is a significant one and must therefore be exercised circumspectly…. Accordingly, a subpoena duces tecum is not to be used as a search warrant or to permit a party to search for a case of which it has no knowledge (that is, conduct a fishing expedition) (see The Becker Milk Company, [1974] OLRB Rep. Oct. 732; Dinnerex Incorporated, [1985] OLRB Rep. March 398; Shaw-Almex Industries Limited, [1984] OLRB Rep. April 659; Re Bell Canada and Communication Workers of Canada, (1980), 1980 CanLII 4017 (CA LA), 25 L.A.C. (2d) 200 (P. Picher).
In Ottawa G. S. B. Construction Co. Ltd., [1985] OLRB Rep. Dec. 1783 the issue before Board was similar to the issue before me in this proceeding. The Board described the issue in that case at page 1787:
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.
The Board, in declining to entertain possible violations of the provincial agreement at job sites not referred to in the grievance, wrote at page 1788:
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 [1981] OLRB Rep. March 331, 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.
[See also Master Insulation Co. Ltd., [1981] OLRB Rep. Jan. 94 at paragraph 25 and Karl Thier Construction Limited, [1985] OLRB Rep. June 887 at 888.]
In my opinion, the applicant is entitled to production of all the responding party’s records and documents relating to carpentry work performed on the three projects identified in the grievance. To go beyond that would, in these circumstances, be a fishing expedition to permit the applicant to find out whether it has a case against the responding party in respect of other projects where the responding party provided its services.
Should the applicant establish at some point that the responding party has repeatedly violated the ICI Agreement or has engaged in subterfuge to avoid its obligations under the ICI Agreement, different considerations would obviously apply. I am not persuaded that the applicant, in this proceeding, is entitled to the broad production order it seeks. Rather, a production order limited to the three projects identified in the grievance is all that is warranted.
If the parties are unable to agree on the scope of production or should the responding party fail to produce the documents contemplated by this decision, I shall issue a formal production order and remain seized to deal with any other production issues arising from this decision or the formal production order if it is issued.
3This matter is referred to the Registrar to be listed for hearing on the merits of the grievance. This panel of the Board is not seized with determining the merits of the grievance.
“Harry Freedman”
for the Board