Ontario Labour Relations Board
File No.: 2710-99-G Date: April 13, 2000
Between: Labourers’ International Union of North America, Local 1089, Applicant v. Doug Chalmers Construction Limited, Responding Party v. United Brotherhood of Carpenters and Joiners of America, Local 1256, Intervenor.
Before: D. L. Gee, Vice-Chair, and Board Members J. Knight and A. Haward.
Appearances: A. M. Minsky and Robert Leone for the applicant; Richard Drmaj and Douglas Chalmers for the responding party; N. L. Jesin and R. Carlton for the intervenor.
Decision of the Board
1This matter is a referral of grievance to arbitration pursuant to section 133 of the Labour Relations Act, 1995 (the “Act”).
2A hearing with respect to this matter was held on March 20, 2000 at which time the Board heard motions with respect to three preliminary issues and rendered oral rulings thereon.
3The first issue dealt with by the Board concerned the status of United Brotherhood of Carpenters and Joiners of America, Local 1256 (the “Carpenters”) to intervene.
4There are three separate bases on which a person may be granted status to intervene in a referral of a grievance to arbitration pursuant to section 133 of the Act. First, the parties to the collective agreement pursuant to which the grievance has been brought are proper parties to an application under section 133. Second, a person may, as of right, be entitled to participate in a grievance referral if it is bound by the agreement and its own rights thereunder are in question and may be determined in the arbitration proceeding. In both of the above-noted situations the person desiring to participate is entitled to participate as of right, and there is no discretion in the Board to deny that person the opportunity to participate. Finally, the Board has a discretion to add parties to any particular proceeding if it determines that it is advisable to do so. Amongst the factors considered by the Board in the course of exercising its discretion is the need to ensure that grievance referrals made to the Board both commence and proceed in an expeditious fashion.
5The question of whether to grant the Carpenters the right to intervene in grievance referrals similar to the one presently in issue (Board File Nos. 1896-98-G; 1897-98-G; 1898-98-G and 2099-98-G) was considered by the Board, and determined in the Carpenters’ favour, in a decision of the Board dated February 25, 1999. In such decision, the Board made the following comments concerning its decision to grant the Carpenters intervenor status:
Upon considering the representations of the parties at the September 28, 1998 hearing, the Board ruled, orally, that in the particular circumstances, it is appropriate to give Carpenters’ Local 1256 standing in the grievance proceedings. This is not something which the Board would normally do in a grievance arbitration proceeding, and even in this extraordinary situation, the Board did so with some reluctance. However, these grievances are manifestations of the continuing dispute over the assignment of scaffolding work. They directly raise issues concerning the implementation of the Board’s jurisdictional dispute decision in that respect. They are not pure collective agreement disputes as between Chalmers and the Labourers’ Local 1089. In other circumstances, that would suggest that a jurisdictional dispute proceeding would be the appropriate forum. But in this case, there have already been three such proceedings, and it is not apparent that any purpose would be served by having another go at it. Perhaps the best way to proceed is with the grievances as a vehicle for resolving the implementation and Labourers’ provincial agreement issues, and also to have the Carpenters’ Union bound by the determinations.
6The Board’s determination permitting the Carpenters to intervene in a grievance referral filed by the Labourers was made in September, 1998. It was done, not because the Carpenters had a right to intervene, but rather as an exercise of the Board’s discretion. The Board granted the Carpenters the right to intervene in what were the first grievance referrals to be considered following the Board’s determination in the jurisdictional dispute proceedings. In this panel’s view, while there may have been merit to allowing the Carpenters to participate in the first grievances to be heard following the jurisdictional dispute proceedings, it is not appropriate to grant the Carpenters intervenor status in all grievance referrals filed by Labourers involving Chalmers in perpetuity. Allowing the Carpenters to participate in the grievance referral results in lengthier hearings and more delays which translates into increased costs for the Board and the parties. Unless there is a compelling reason to allow the Carpenters to participate in what is essentially an issue arising out of the application of the collective agreement between the Labourers and Chalmers, intervenor status ought to be denied. In the present case, by the time this matter comes to hearing, Carpenters will have been an active participant in a number of similar grievance referrals. It will have had an opportunity to directly address the Board concerning the application of the Board’s decision in the jurisdictional dispute proceedings to the performance of scaffolding work by Chalmers. More importantly, however, the position taken by Carpenters is the position being advanced by Chalmers. Chalmers can call the same evidence that the Carpenters would have called had they been permitted to participate. Thus, in the Board’s view, while there are negative consequences that would result, to both the Board and the parties, from letting the Carpenters participate, there is no benefit to be obtained. As a result, the Board ruled that the Carpenters would not be permitted to intervene in this matter.
7Counsel for Carpenters requested that the Board provide the parties with its written reasons for denying Carpenters standing to intervene and stated that his client needed to know if it was appropriate for the Carpenters to file a jurisdictional dispute. Counsel for Carpenters asserts that his client cannot file a jurisdictional dispute as they have already obtained a Board determination with respect to the matter. With respect, the Board dealt with the question posed by counsel both in its decision of May 8, 1997 and July 2, 1998 rendered in connection with the jurisdictional dispute proceedings. The Board stated that it is far from clear that the Board has the jurisdiction to make a determination that would be determinative of other or future work assignments and declined to do so. The Board stated that its decisions would, however, be of persuasive value and would likely be dispositive where the dispute involves the same parties, the same work and the same geographic area.
8The second issue concerned a motion by Chalmers to adjourn this matter in order that it be heard following a Board determination in other grievances involving these parties that are referred to by the parties as “Group 3”. While the Board’s determination in respect of the grievances known as Group 3 may provide guidance to the parties, the Board’s determination in those matters will not be determinative of this matter. It appears that the dispute in the instant matter is largely a factual one and the factual determinations that will largely determine the outcome of this matter are not related to the grievances in Group 3. In this regard, we note the following comments made by the Board in its February 25, 1999 decision:
- Despite the lack of particularity, it is apparent that each grievance relates to a separate and discrete scaffold or series of scaffolds. There is no apparent factual overlap between the grievances. Consequently, even though the grievances all raise the issue of the application of the Board’s jurisdictional dispute decisions, it is not apparent that the determination of one grievance will either be dispositive of or directly affect any of the other grievances. Indeed, as the Board observed in its decision in Board File No. 4462-97-JD, the nature of scaffolding work in the petro-chemical plant environment is that no general answer is possible. That is, each scaffold is appropriately treated separately. Accordingly, while the ultimate disposition of the various grievances may suggest a different answer or direction for the future, in terms of a general approach the Board is not satisfied that it is appropriate to consolidate the grievances which have been filed or to have them heard together. All of the grievances should therefore proceed separately.
Accordingly, the Board ruled that this matter would proceed in the usual course and would not be adjourned pending the outcome of the Group 3 grievances.
9The third issue concerned a request by Chalmers that this matter be adjourned and the Labourers’ ordered to provide Chalmers with additional particulars of its grievance.
10The Labourers assert that, from and after October 18, 1999 Chalmers has violated the Provincial Agreement by failing to employ labourers/members of Local 1089 to tend carpenters on scaffolding work at the “Cat Cracker” shutdown, at the Imperial Oil Plant, Sarnia, Ontario. Relying on the Board’s decision of July 2, 1998, the Labourers assert that labourers ought to have been employed to perform general tending for each of the three shifts for each day that such work was undertaken by Chalmers. By letter dated March 13, 2000, Labourers provided the Board and Chalmers with further information setting out the dates and locations of the scaffolding work being performed.
11The issue of particulars was also considered by the Board in its decision of February 25, 1999, albeit in respect of other grievance referrals. The Board’s comments are, however, worth repeating:
- Turning first to the particulars issue, it is trite to say that properly particularized pleadings are required in litigation before the Board as a matter of natural justice and litigation fairness. What is required in a particular case in that respect will depend on the circumstances, but as a general matter, a party alleging a breach of a collective agreement must identify what it is complaining about with sufficient particularity to permit the employer or other parties to reasonably understand what is being alleged, and to give them an adequate opportunity to prepare an answer to the grievance. Accordingly, a party must identify and describe its allegations, specify the acts or omissions complained of, where and when these are alleged to have occurred, and who was involved. In considering whether a particular grievance has been adequately particularized, the Board will consider the nature of the grievance, the extent of the information which is available or can with reasonable diligence and effort be discovered, and whether other parties will be prejudiced if further particulars are not provided or further particulars are necessary to a fair litigation of the grievance.
12In the present case, the grievance referral as clarified by the letter of March 13, 2000, asserts that tending work was performed at the “Cat Cracker” shut down at the Imperial Oil Plant in Sarnia on the dates indicated in the letter of March 13, 2000, in connection with scaffolds identified in the letter of March 13, 2000, which, according to the Board’s July 2, 1998 decision, ought to have been assigned, and was not assigned, to its members. Chalmers thus is aware of the date and location of the work in issue. Chalmers knows the basis on which Labourers asserts that work should have been assigned to its members and was not. In the panel’s view, Chalmers has sufficient information to reasonably understand the allegations being made and prepare its defense. Accordingly, the Board declined to adjourn the proceedings and order the provision of further particulars by the Labourers.
13Following the Board’s oral rulings as set out above, the matter was adjourned. The hearing of this matter will continue on August 21, 22 and 23 at the Board’s offices located at 505 University Ave., 2nd Floor, Toronto, Ontario, commencing at 9:30 a.m. each day.
14This panel is not seized.
“D. L. Gee” for the Board