0456-01-U Universal Workers Union, Labourers’ International Union of North America Local 183, Applicant v. Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America and Fernbrook Homes Ltd., Responding Parties.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; June 4, 2001
1This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995 ch. 1 (“the Act”). The circumstances giving rise to this application stem from an application for certification filed by Allied Construction Employees Union Local 1030, United Brotherhood of Carpenters and Joiners of America (“Carpenters Local 1030”) which seeks to displace the Universal Workers Union, Labourers’ International Union of North America Local 183 (“Labourers Local 183”) as the bargaining agent for certain employees of Fernbrook Homes Ltd. (“Fernbrook”). This application was filed on April 7, 2001 and is proceeding before the Board in Board File 0107‑01‑R.
2Essentially, the application asserts that Fernbrook and Carpenters Local 1030 entered into an arrangement to artificially reduce the number of persons in the bargaining unit employed on a particular day, and to ensure that the identity of those persons at work were those most likely to vote in favour of Carpenters Local 1030, in order that Carpenters Local 1030 might bring an application for certification seeking to displace Labourers Local 183 as bargaining agent.
3These are essentially the allegations made in Board File 0107-01-R. There is a dispute about the entitlement of a large number of employees to vote in that application. In all, 46 persons voted in the representation vote ordered by the Board, and at least 30 of these persons are challenged by one party or the other.
4Both responding parties have asked the Board to dismiss the application on the basis that it fails to disclose a prima facie case. The Board declines to do so. In this application there would be, if it were properly pleaded, an arguable case. The pleadings are deficient in two respects. First of all, as dealt with further below, there is a lack of adequate particulars to enable the case to proceed. Second, the application is couched in flamboyant and rhetorical terms which do little to assist the orderly conduct of litigation. The Board does not wish to encourage counsel to become engaged in a process of minutely criticizing the prose style contained in any one set of pleadings. However, to the extent that parties file pleadings which more closely resemble schoolyard taunts than proper legal proceedings, such applications will obscure what may be a legitimate complaint and tend to cause the reader to dismiss the entire matter as frivolous. It may also, as it may have done here, lead counsel to ignore the basics of proper pleading, that is, the obligation to provide specific particulars of events, times, places and persons which are necessary in any application.
5The Board directs the applicant herein to file a revised and particularized Schedule “B” to the application. The Board directs the applicant specifically to particularize the items listed below, which refer to the paragraph number in Schedule “B” to the application:
Paragraph 3:
Paragraph 3 and the first three lines of paragraph 7 (to the word, “Fernbrook”) are pleadings which, in a legal sense, are “scandalous and vexatious”. This term means that the pleadings are so general as to be impossible to respond to; are designed to embarrass and hold up to ridicule the opposite party; to introduce embarrassing but extraneous issues into an application; which fail to advance the applicant’s case in any real manner; or any of these in combination. These two portions of the pleadings fit into all of these categories.
It is not at all clear to the Board that if one union were to charter a local with the sole and specific objective of displacing another union’s bargaining rights, that that would be a violation of the Labour Relations Act, 1995 in any event. However, even assuming it were, to assert and deny that proposition might potentially consume many days of evidence, all of which would be utterly irrelevant to the facts that the applicant claims it wishes to litigate in this case.
Accordingly, these two portions of the pleadings will be struck.
Paragraph 5:
The applicant is directed to identify by name the “representatives of Fernbrook” who made the alleged statements, the officers or representatives of Labourers Local 183 to whom such statements were made, the dates when and the context in which such statements were made.
Paragraph 6:
Given the generality of the pleadings, it is impossible to know whether this paragraph is simply an introduction to the slightly more specific allegations made in subsequent paragraphs or whether it is intended to indicate some different facts than those alleged in subsequent paragraphs. If the latter is the case, the applicant is directed to specify what acts Fernbrook and Carpenters Local 1030 engaged in which constitute the conspiracy alleged, in default of which the paragraph will be struck.
Paragraph 7:
The applicant is directed to file particulars of the persons who “determined” or agreed on behalf of Carpenters Local 1030 and Fernbrook that the list of employees was to be “gerrymandered” for the purposes of a representation application. However, the Board does not require the applicant to plead, as Fernbrook asks, for particulars of how Labourers Local 183 intends to prove that the representatives of Fernbrook knew or suspected that certain employees would be more or less likely to support one union or the other.
However, if Labourers Local 183 has specific allegations of events or statements that will be the subject of cross-examination or evidence, those particulars must be pleaded.
Paragraph 8:
The remarks above with respect to paragraph 6 apply equally to the second sentence of paragraph 8. If this is intended to allege something different from the vague allegations contained in paragraph 9, Labourers Local 183 is directed to provide proper particulars of who it was who “determined” that action would be taken, when and under what circumstances they made this determination, and what the “specific action” was that these persons decided upon.
Paragraph 9:
The applicant is directed to provide the following particulars:
(1) the names of the employees who were informed that they should not report to work on Saturday, April 7, 2001;
(2) the names of the supervisors who refused to answer questions about why there would be no Saturday work;
(3) the supervisors, and particularly the supervisor at the Oakville job site, who allegedly stated that the application for certification would be made on Saturday, April 7.
With respect to all of the above, the applicant is directed to state the date on which those employees were informed, the location or place where they were informed, and the language in which these statements were allegedly made.
6Schedule “A” to the application contains the relief sought. Much of this is clearly unnecessary, even on the allegations as pleaded, or beyond the jurisdiction of the Board. For instance, if notices are to be drafted and distributed to all employees in the bargaining unit, then little of remedial value in this specific application would be accomplished by what is sought in paragraphs 4 and 6 of Schedule “A”. Similarly, the request for costs or an essentially punitive requirement to pay $500,000 to a charity is, in all likelihood, well beyond the Board’s jurisdiction. Paragraph 9 contains a suggestion about a message to be contained on a representation vote ballot which is probably contrary to the Labour Relations Act, 1995 itself.
7The appropriate relief is something to be determined at the end of the case. In future, however, parties ought to bear in mind that the primary audience for pleadings is other parties and the Board. Flamboyant statements and claims are best left to publications aimed at a different audience. Issues with respect to the appropriate relief can be determined at the end of the case.
8The applicant, Labourers Local 183, is directed to file an amended Schedule “B” to its application within 10 days after the date of this decision. Both responding parties are directed to file any further response they choose to file within 10 days of receiving the revised Schedule “B” to the application. Certainly in the case of Carpenters Local 1030, if the applicant does comply with the Board’s directions above, an additional response would be necessary.
9Since the issues, and indeed the relief sought in this application, are identical to certain issues raised in the application for certification, the Board directs that this application be processed at the same time as the application for certification in Board File 0107-01-R, and the two files be placed for hearing, if necessary, before the same panel on the same day. This matter is referred to the Manager of Field Services, for the purposes of mediation at the same time as the regional certification meeting in Board File 0107-01-R.
10I am not seized of this application.
“David A. McKee”
for the Board