Labourers’ International Union of North America, Ontario Provincial District Council v. Antonio Sabato, 2001 CanLII 13750

Labourers’ International Union of North America, Ontario Provincial District Council v. Antonio Sabato

1565-00-R Labourers’ International Union of North America, Ontario Provincial District Council on its own behalf and on behalf of its affiliated Labourers’ International Union of North America, Local 506, Applicant v. Antonio Sabato, Howard Federman, The Maplecrete Group Corporation, Maplecrete Construction Company Limited, Trojan Construction Inc., 1272464 Ontario Inc. o/a D.D. Construction, Ermacon Contracting Inc., 539243 Ontario Limited o/a Royal Carpentry Group, and Radius Construction Corp., Responding Parties v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, and Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America, Intervenors.

3800-00-U Labourers’ International Union of North America, Ontario Provincial District Council on its own behalf and on behalf of its affiliated Labourers’ International Union of North America, Local 506, Applicant v. Antonio Sabato, Howard Federman, The Maplecrete Group Corporation, Maplecrete Construction Company Limited, Trojan Construction Inc., 1272464 Ontario Inc. o/a D.D. Construction, Ermacon Contracting Inc., 539243 Ontario Limited o/a Royal Carpentry Group, Radius Construction Corp., Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America (“Carpenters’ Local 27”), and Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America, Responding Parties.

BEFORE: David A. McKee, Vice-Chair.

APPEARANCES: J. Moszynski and A. Camara for the applicant; R. Bayne and C. Nigro for Ermacon Contracting Inc.; M. Horan and A. Sabato for Antonio Sabato, The Maplecrete Group Corporation, Maplecrete Construction Company Limited, Trojan Construction Inc., and Radius Construction Corp.; M. Montanaro for 539243 Ontario Limited o/a Royal Carpentry Group; no one appearing on behalf of 1272464 Ontario Inc. o/a D.D. Construction or Howard Federman; D. Watson and Q. Ceolin for Carpenters, Local 27 and Carpenters, Local 1030.

DECISION OF THE BOARD; June 22, 2001

1These are two applications filed under the Labour Relations Act, 1995, S.O. 1995, ch. 1 (“the Act”). The first is an application filed under subsection 1(4) and section 69 of the Act alleging that the corporate responding parties carry on associated or related businesses or activities under common direction and control, or alternatively, that there has been a sale of business among them (the “Related Employer Application”). The second is a section 96 application alleging certain violations of the Act and seeking reconsideration of two certificates issued by this Board (the section 96 application).

2Both applications arise from what the applicant, Labourers’ International Union of North America, Local 506 (“Labourers’ Local 506”) alleges is an arrangement among the various corporate responding parties and the two Locals of the Carpenters’ Union. Labourers’ Local 506 alleges that the corporate responding parties entered into an arrangement whereby Antonio Sabato, the owner of a number of companies occasionally called the “Maplecrete Group”, agreed to perform concrete formwork for Ermacon (a general contractor owned or controlled by Mr. Carmine Nigro) using a new or revived corporate vehicle, namely 539243 Ontario Limited o/a Royal Carpentry Group (“Royal”). The work on which the two applications focus is the concrete formwork at a Holiday Inn Select project in Mississauga (the “Project”). It is further alleged that Mr. Sabato used Royal to avoid certain contractual obligations to Labourers’ Local 506.

3It is further alleged that Royal and the other corporate responding parties conspired with Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America (“Carpenters’ Local 27”) and Allied Construction Employees Local 1030, United Brotherhood of Carpenters and Joiners of America (“Carpenters’ Local 1030”) to enable this project to proceed. It is alleged that the two Carpenters’ Locals entered into collective agreements and further an arrangement to supply all employees required for the performance of a formwork project to Royal. Finally, it is alleged that these collective agreements are being used in a manner contrary to section 162 of the Act.

4There are five days scheduled in September 2001 for the hearing of these applications. The parties argued several preliminary motions before me on May 29, 2001. This decision deals with those preliminary motions. The two primary ones this decision deals with are:

(1) the allegation by Carpenters’ Local 27 and Carpenters’ Local 1030 and Ermacon that the section 96 application does not disclose a prima facie case; and

(2) a motion to strike certain portions of the Related Employer Application for lack of particulars.

As will be seen, certain other motions were made redundant by the answers to these two motions. Some other issues have been left to the panel hearing these applications.

Section 96 Application

5The unfair labour practice complaint contains two parts which arise from the same facts but which are independent of one another. The first is an allegation that both Carpenters’ Local 1030 and Carpenters’ Local 27 have unlawfully acquired bargaining rights for employees of Royal. The second is that Royal has employed carpenters and carpenters’ apprentices in the ICI sector of the construction industry but has applied the terms and conditions of a different collective agreement from that of the Carpenters’ Provincial Collective Agreement to that employment. As a subsidiary of this allegation, it is alleged that Royal has employed persons who are not carpenters and has applied to them the terms and conditions of the (non-ICI) collective agreement with Carpenters’ Local 1030. The allegations with respect to these issues are set out in the consolidated pleadings filed March 21, 2000. They are found in paragraphs xviii to xxiii.

6Essentially, Labourers’ Local 506 asserts that the collective agreement between the Ontario Form Work Association and the Formwork Council of Ontario (“the Formwork Agreement or FWA”) or alternatively the Labourers’ Provincial Collective Agreement ought to have governed the performance of work on the project. The object of the Related Employer Application is a declaration that Royal is one employer with the Maplecrete Group, and therefore bound to those collective agreements. One potential impediment to that relief is the existence of bargaining rights and collective agreements held by the two locals of the Carpenters’ Union.

7The allegations against the Carpenters’ Union and the various employers were not articulated with any clarity in the original application. Indeed the section 96 application was filed only on March 21, 2001 in response to the Board’s direction in its decision of March 6, 2001. The primary interest of Labourers Local 506 is its goal in the Related Employer Application. Ultimately, Local 506 wishes to have Royal to be declared to be one employer with the Maplecrete Group for the purposes of the Act. The result, in Labourers Local 506’s view, is that either the Formwork Agreement would apply to Royal (thus requiring Royal to employ all construction employees in accordance with the terms of the Formwork Agreement) or at least the Provincial Collective Agreement (which would require Royal to employ members of Labourers Local 506 as construction labourers and cement finishers).

8Labourers’ Local 506 perceives the two Carpenters’ collective agreement as potential impediments to this relief. If Carpenters’ Local 27 represents carpenters and carpenters’ apprentices in the industrial commercial and institutional sector, this complicates (to use a neutral term) the desire of Labourers Local 506 to see that all employees on the Project are or should have been members of the Labourers Union employed under the terms of the Formwork Agreement. Although this was an industrial commercial and institutional project, Carpenters Local 1030 also represents a problem for Labourers’ Local 506. Neither it nor Local 27 purport to represent construction labourers in the ICI sector. However, on the Project, the applicant believes that Carpenters Local 1030 supplied at least some of the employees or that its collective agreement was used to set terms and conditions of employment of employees on the Project. And of course the collective agreement of Carpenters Local 1030 would present a problem for any relief sought in respect of non-ICI bargaining rights.

9To eliminate this potential problem Labourers Local 506 has filed the section 96 application seeking various forms of relief. Specifically, Labourers’ Local 506 requests that the Board reconsider the two certificates issued to Carpenters’ Local 27 and Carpenters’ Local 1030 in respect of certain employees of Royal and to declare that the collective agreements entered into between the two Locals of the Carpenters Union and Royal are null and void.

10The Carpenters Union, and to some extent the other parties, challenge the right of the applicant, Labourers’ Local 506, to seek relief under the first ground of the unfair labour practice complaint. That is, they assert that Local 506 has no right to seek such relief, or alternatively, that the Board ought not to entertain the complaint on discretionary grounds.

11Labourers’ Local 506 has filed no evidence of membership on behalf of any persons in the bargaining unit represented by either Carpenters’ Local 1030 or Carpenters’ Local 27. Therefore, its status arises only if it has, or can establish, pre-existing bargaining rights covering some or all of the employees who inhabit the bargaining unit set out in the certificates issued to and the collective agreements entered into by Carpenters’ Local 27 or Carpenters’ Local 1030. The applicant relies on section 66 of the Act in seeking a declaration that the collective agreements are null and void. Section 66 applies only where a union has not been certified and may be brought by a trade union only where it represents at least one person in the bargaining unit (i.e. files membership evidence on behalf of one individual). Labourers’ Local 506 qualifies on neither ground. The applicant did not rely on section 53, although the same relief is often sought under both sections (see Sunrise Paving and Construction Company Ltd., [1972] OLRB Rep. March 199; C.Strauss (1973) Limited, [1975] OLRB Rep. July 581; Operative Plasterers and Cement Masons International Association of the United States and Canada, [1978] OLRB Rep. 362). Even leaving aside the problem of a lack of a statutory foundation for the application, it cannot succeed for other reasons.

12The basis of the assertion by Labourers’ Local 506 that it has the right to bring this application arises from bargaining rights between itself and certain of the other corporate responding parties who are bound to both the Labourers’ Provincial Collective Agreement and the Formwork Agreement. Alternatively, it argues that it has bargaining rights, again to be established with Royal in the Related Employer Application, arising from a voluntary collective agreement signed with 1272464 Ontario Inc. o/a D.D. Construction (“D.D. Construction”).

13The Labourers’ Provincial Collective Agreement may cover more than the ICI sector of the construction industry if an individual employer agrees to this extension of bargaining rights directly or through an employer association. (see Fred Jantz Masonry Construction Company Limited, [1981] OLRB Rep. Sept. 1229 and London Sandblasting and Painting Limited, [1982] OLRB Rep. Sept. 1332) This is provided for contractually in Article 1.04 of the Provincial Collective Agreement. Labourers’ Local 506 offered no evidence that any of the employers (except D.D. Construction, about which see below) had done so. Accordingly, the Board finds for purposes of this application that the Provincial Collective Agreement applies only in the ICI sector for any of these responding parties (except, perhaps, for D.D. Construction). That agreement, which covers only construction labourers in the ICI sector, is not a basis for a complaint against Carpenters’ Local 1030 (which asserts bargaining rights only in the non-ICI sectors) or against Carpenters’ Local 27 (which asserts bargaining rights only for carpenters in the ICI sector).

14The main emphasis of Labourers’ Local 506 was the Formwork Agreement. Although Mr. Camara, Business Manager of Labourers’ Local 506, stated to the Board that Local 506 was a “party” to the Formwork Agreement, his use of that term was not, it seems to me, characterized by any legal precision. This collective agreement, and the Formwork Council, has been examined by the Board on a number of occasions. The Board has examined the status of the Formwork Council itself several times: see for example Ellis –Don Ltd. [1998] OLRB Rep. Dec. 1252 at para. 49. It has always been known to this Board as a council of trade unions composed of Labourers’ Local 183 and the International Union of Operating Engineers, Local 793. The applicant in this case filed no document to suggest that the structure of the Formwork Council had been changed. Counsel, however, did point to a number of provisions of the Formwork Agreement which he asserted does give Labourers’ Local 506 status as a party, at least for some purposes of the collective agreement. These provisions, he argued, create bargaining rights, or may create bargaining rights, upon hiring of members of Local 506 by an employer, sufficient to give Labourers’ Local 506 status to bring this complaint.

15The Board disagrees. Labourers’ Local 506 is certainly no stranger to the Formwork Agreement. It is specifically referred to a number of times. However, the recognition clause, Article 2 of the Master Portion, refers only to the Formwork Council as the union party to the collective agreement. Schedule “E” of the agreement is applicable to Labourers’ Local 506, among others. Article 1.01 applies:

Upon any of the employers:

(a) performing work covered by the agreement within the territorial jurisdiction of any one of the Labourers International Union of North America, Locals … 506 … ; and

(b) hiring members of any one of the local unions within whose territorial jurisdictions the work is performed[,] [sic]

the terms and conditions of the agreement, this schedule, and the applicable appendix attached to this schedule shall apply to the members of the local union.

Appendix 4, Schedule “E” begins with a provision:

The following articles shall apply to members of Local 506 when they are employed as form helpers in OLRB geographic area No. 8 and Simcoe County for all projects excluding …

None of these provisions requires an employer to hire a single member of Local 506. On the basis of the argument in this case, the Board finds that an employer may under this collective agreement hire all employees from Labourers’ Local 183. Appendix “E” applies only if the employer chooses to hire from Local 506 (and even then only “form helpers” in Board Area 8). Similarly, Article 30.01 of the Master Portion contemplates that an employer may wish to transfer a “key employee” but does not require it to do any such thing.

16Counsel relied on Article 3.01 of Appendix “E” which provides:

3.01 When an Employer performs work in a Local Union’s territorial jurisdiction, the said Local Union has the right to file a grievance concerning the interpretation, application, administration or alleged violation of the applicable Appendix to this Schedule, including any question as to whether a matter is arbitrable, in accordance with the following process:

a) to process such grievance according to Articles 5 and 6 (Grievance Procedure and Arbitration) of the Agreement, as if the Local Union was a party to the Agreement; or

b) Notwithstanding Articles 5 and 6 (Grievance Procedure and Arbitration) of the Agreement, to refer such grievance to the Ontario Labour Relations Board for final and binding determination pursuant to the Labour Relations Act, R.S.O. 1980, c.228, and, in particular section 126 thereof, as if the Local Union was a party to the Agreement and the Association, by and on behalf of its member employers, covenants and agrees to treat such referral to arbitration as if the Local Union was a party to the Agreement for the purpose of the Labour Relations Act as aforesaid. (emphasis added)

If anything, this provision makes it clear that Labourers’ Local 506 is not a party to the collective agreement and has been granted a right simply to file a grievance in its own name as if it were a party. This is not an uncommon type of clause, particularly in a collective agreement where several unions or local unions are represented by a council. It creates a contractual right to enforce certain parts of a collective agreement in certain limited circumstances. It does not create bargaining rights.

17I conclude therefore that Labourers’ Local 506 does not have bargaining rights under the Formwork Agreement (although it may have certain contractual rights) and therefore has no status to bring a complaint based on this agreement.

18In the alternative, Labourers’ Local 506 asserts a basis for claiming non-ICI bargaining rights for employees of Royal arising from bargaining rights created by a voluntary collective agreement between D.D. Construction and Labourers International Union of North America, Ontario Provincial District Council (“OPDC”) executed October 29, 1998. There is no dispute that Labourers’ Local 506 is a member of the OPDC.

19No evidence other than the voluntary collective agreement itself was filed, and that document is less than absolutely clear. One could read the document very restrictively. Article 1(a) refers to “all construction labourers … covered by the provincial collective agreement with the provincial employer bargaining agency – Labourers”. The employer bargaining agency, of course, has authority only to bargain in the ICI sector and that limitation is reflected in Article 1.01 of the Provincial Collective Agreement. It is true that Article 1.04 of that Agreement potentially expands the scope of the Provincial Collective Agreement beyond the ICI sector, but as indicated, this requires the agreement of the individual employer. Such agreement cannot be given by the employer bargaining agency, nor can it be inferred from the Provincial Collective Agreement (see Fred Jantz Masonry Construction Company Limited and London Sandblasting & Painting Ltd., supra). There are very general references to non-ICI collective agreements in Article 3(a) and 3(b), but these might be restricted to the type of work described in Article 1(b) (pre-cast concrete work) and 1(c) (demolition) which are clearly all‑sector in scope.

20However, the only other evidence of any bargaining activity by these parties appears to contemplate a wider scope for Article 3 than that. D.D. Construction is listed as one of the employers bound to the Formwork Agreement. Although some explanation was offered as to why it was listed under the “Maplecrete Group Corporation” heading, it was not disputed that D.D. Construction is bound to the Formwork Agreement. If the October 29, 1998 document were the only one binding it to the Formwork Agreement, the Board would infer that the parties contemplated a wider scope of the application than that suggested above.

21For the purposes of this case, of course, the issue is of minimal relevance. To the extent that the document binds D.D. Construction to the Formwork Agreement, that document does not create bargaining rights for Labourers’ Local 506. The specific project which is the focus of these applications was a concrete forming project. If the document has the effect counsel alleges it does, it simply represents the OPDC binding D.D. Construction to the Formwork Agreement on behalf of Labourers’ Local 183, not Labourers’ Local 506. Labourers’ Local 506 did not suggest there was any other collective agreement it concluded with D.D. Construction other than this document. At best, it constitutes a voluntary recognition agreement and an obligation to apply the Provincial Collective Agreement to cover non-ICI work for construction labourers.

22The Board is reluctant to make any final decision about bargaining rights on the basis of the limited evidence and argument presented. At best, Local 506 has an arguable claim to bargaining rights with D.D. Construction beyond the Provincial Collective Agreement. The complaint, however, deals not with D.D. Construction, but with Royal. This raises two discretionary issues with respect to relief under a Related Employer Application for the purposes of establishing a status to bring this complaint, both of which relate to timeliness.

23The Board has issued two certificates, one to Carpenters’ Local 1030 and one to Carpenters’ Local 27. The timing of the two certification applications and the issuing of certificates is slightly different.

24Carpenters’ Local 1030 applied for a bargaining unit of carpenters, carpenters’ apprentices, construction labourers, cement finishers in all sectors of the construction industry in Board Area 8, save and except the ICI sector. The application was made on May 3, 2000. It was claimed there were four employees in the unit. A vote was ordered on May 9 and conducted on May 11. All four employees voted. After some correspondence with the Board about the name of the applicant (its name had changed recently), a certificate was issued on July 12, 2000.

25Carpenters’ Local 27 applied initially for all carpenters and carpenters’ apprentices in the ICI sector of the construction industry and in all other sectors in Board Area 8. The application was filed June 28, 2000. It was alleged there were three employees in the unit. The employer said there were four. A vote was ordered July 5, but adjourned sine die at the request of the parties. Apparently the reason for this requested adjournment was to await the outcome of the application by Carpenters’ Local 1030.

26In September Carpenters’ Local 27 wrote to the Board seeking to amend the bargaining unit to restrict it to the ICI sector only and seeking another vote. Such a vote was ordered September 19 and conducted September 25, 2000. A certificate was issued October 16, 2000.

27The timing of the Related Employer Application overlapped to some extent with the second of these applications. It was filed August 28, 2000 (although delivered to the parties on August 25, 2000). An intervention was filed by Carpenters’ Local 27 and Carpenters’ Local 1030 on September 15 and faxed to counsel for the applicant on that date. It referred to the certificate issued to Carpenters’ Local 1030 and attached a copy of it. It referred to the pending application which had been brought by Carpenters’ Local 27 and referred to the file number. Notwithstanding this information, Labourers’ Local 506 did nothing. It did not intervene in the Local 27 application (in which a vote had still not been ordered on September 15, 2000). It did not seek reconsideration of the certificate issued to Carpenters’ Local 1030 at that time. Indeed, it sought no relief against Carpenters’ Local 27 or Carpenters’ Local 1030 until March 21, 2001.

28Certification applications require expedition on the part of every party involved, including the Board. The statute requires that the Board conduct a representation vote, if possible, within five days of the application. The responding party employers are required to respond to an application in two days. Representations about the conduct of the vote must be filed with the Board five days after the vote. This is a legislative and administrative policy which is as old as the statute itself, and one which has, if anything, been focused more sharply since 1995. This expedition is certainly a factor which Labourers’ Local 506 relies on, and which it, rightly, expects in any application for certification it files. It is no less incumbent on it when acting as intervenor to act with the same kind of dispatch it expects when it is the applicant.

29The need for this expedition has been confirmed by 50 years of experience under the statute. Representation issues are time-sensitive and the free expression of employee wishes is best determined as quickly as possible. Delay can lead to the prejudice of the rights of all parties, which the Board may not be able to address or remedy fully. Expedition will moderate adversarial behaviour that poisons the workplace and reduces needless litigation.

30The Board must also have regard to the fact that a certificate represents the alteration of relations between parties, but it is not an end in itself. Unlike a judgement for a sum of money or a declaration of title to property, a certificate does not simply end one process but commences another: the bargaining of a collective agreement and the establishment of contractual rights of employees, employers and unions. Parties continue to make plans, reasonably expecting to be able to rely on their existing rights and obligations. Any delay in seeking to upset these expectations arising from the lawful processes under the Act is, prima facie, prejudicial. In one extreme case (Dellbrook Homes [1988] OLRB Rep. Feb 125) the Board refused to let a complaint continue where the applicant had delayed for a much longer period of time. The reason for this refusal was, in part, because the bargaining relationship attacked in that complaint had grown, spread, and flourished. To nullify all of that on the basis of a complaint which, by then, was several years old, would be extraordinarily prejudicial and was a strong factor in causing the Board to dismiss the case.

31Here, all the facts on which Local 506 now relies are alluded to in its application filed August 28, 2000 (paragraph 8 (xvi)) or were asserted by the Carpenters in their intervention on September 15. No explanation was provided for the delay in filing the unfair labour practice complaint.

32In addition, there is another and potentially more significant issue with respect to timeliness. There can be no complaint, based on any Labourers’ ICI bargaining rights, as no one asserts there is a collective agreement which covers construction labourers in the ICI sector of the construction industry binding on Royal. Labourers’ Local 506’s non-ICI bargaining rights (if they exist at all) are not with Royal. If they exist, they exist in respect of employees of D.D. Construction. The Labourers seek a declaration that D.D. Construction and Royal (among others) are related employers and only then would be able to assert its claim against Royal and Carpenters’ Local 1030.

33The Board dealt with a similar situation in Zaph Construction Limited, [1977] OLRB Rep. Nov. 741. With respect to a claim by Labourers’ Local 527 in that case that it had a right to seek reconsideration of a certificate issued to Operative Plasterers Local 124 based on a similar related employer application, the Board said:

8. In circumstances where a trade union’s established bargaining rights (as distinct from the claim to represent individual employees) may be affected by an application for certification, that trade union is entitled to individual notice of the proceedings. A union, whose bargaining rights may be affected by an application for certification but who is not served with notice of the application, is entitled to move under Section 95(1) of the Act to protect its bargaining rights as long as it does so immediately upon becoming aware that its purported rights have been affected. (emphasis added)

The Board found that Labourers’ Local 527 had acted immediately upon becoming aware that its rights had been affected. However, the Board found that Local 527 had been aware of the existence of Zaph Construction Limited for some time prior to the certification by Plasterers Local 124. Quoting from Industrial Mine Installations Limited, [1972] OLRB Rep. Dec. 1029, the Board said:

18. Further, we do not think that Section 1(4) was intended to be used by one trade union as a bar to another trade union obtaining bargaining rights in a company where the first trade union held no existing bargaining rights whatsoever. Where the trade union is confronted with a situation raised by Section 1(4) it has an obligation to act promptly and where related or associated employers are desirous of obtaining the benefits of Section 1(4) they too must act promptly. If the parties choose to leave exposed bargaining rights in a multientity situation they do so at their peril and at the risk that another trade union may enter the situation and claim those exposed bargaining rights.

The Board refused to permit Labourers’ Local 527 to proceed with the Related Employer declaration, the sole object of which was to nullify the collective agreement with Plasterers’ Local 124 for that reason. Here, there is no suggestion that Labourers’ Local 506 knew of Royal’s existence prior to August 2000. However, it was aware of the events related to Carpenters Local 1030 and the application made by Local 27 and it did nothing for six months to challenge the Carpenters’ bargaining rights.

34In all of these circumstances, the Board declines to entertain the unfair labour practice with respect to the challenge to bargaining rights of Carpenters’ Local 27 and Carpenters’ Local 1030. Accordingly, paragraphs xviii, xix, xx and xxii are struck from the pleadings contained in the March 21 letter as is the relief set out in paragraph vi, vii and viii. Similarly, while Labourers’ Local 506 is free to continue to seek whatever relief it chooses in the Related Employer Application, the fact of the collective agreements between Royal and Carpenters’ Locals 27 and 1030 will not be an issue in dispute. That is, any relief will have to take into account the existence of the two collective agreements and the certificates which underlie them.

35The Board would point out, however, that this is by no means the end of the issue raised by the Labourers. Fundamentally, Labourers’ Local 506 asserts that certain persons who were construction labourers were employed on ICI projects and should be covered by a collective agreement (in this case the Provincial Collective Agreement) to which Labourers’ Local 506 is a party. No party asserts that there are bargaining rights for construction labourers in the ICI sector held by any other party. Whether this is a valid complaint, or whether this is simply the reverse of Well-Bur Construction Limited (reported at [1998] OLRB Rep. Jan/Feb 124) remains to be seen.

36The second issue raised by the section 96 application is a narrow one. Essentially, Labourers’ Local 506 alleges that either or both of Carpenters’ Local 27 and Carpenters’ Local 1030 have referred persons to employment at the Holiday Inn select project who were employed as (a) tradespersons other than carpenters and carpenters’ apprentices, and (b) on terms and conditions of employment different from those contained in the Carpenters’ Provincial Collective Agreement. Both acts are alleged to be a violation of section 162.

37This allegation is rather baldly pleaded and the response may be equally terse. The allegation may well plead a prima facie case, but once again, the issue of the status of Local 506 to litigate this complaint may be an issue. The Board determines that it is appropriate in the circumstances to adjourn the unfair labour practice complaint until after the Board has rendered a decision in the Related Employer Application. At that time the parties can address the issue of what, if anything, should be litigated in the section 96 application. The Board notes that Ermacon argued that it ought not to be a responding party to the complaint at all. It states that it is not alleged to be the employer and the only reference to an “other arrangement” is the vague allegation contained in paragraph 8 (xii). This motion may be raised again before the panel hearing the merits of these applications, should the matter proceed beyond the hearing of the Related Employer Application.

Related Employer Application

38The Related Employer Application is a relatively more straightforward issue. There is no dispute that Labourers’ Local 506 has the right to seek the relief requested, as modified above. Certain of the corporate responding parties, and to a lesser extent, the Carpenters, argue that the pleadings are insufficiently particularized, notwithstanding the Board’s direction to the applicant to fully and coherently plead its case.

39The standard for pleadings in a related employer application is described in the often-cited Guaranteed Insulation ’77 Ltd., [1981] OLRB Rep. Oct. 1394. In that case the Board referred to a portion of Canada Cement Lafarge Limited, [1975] OLRB Rep. Jan. 5 wherein the Board stated:

12. It is, we think, reasonable to assume that these and related problems gave rise to the enactment of sections 1(5) and 55(13). As we construe the amendments, the onus of adducing the material facts has now been placed upon the parties having knowledge of, and access to, those facts. What does this mean in practical terms? A basic question, and one raised directly by Mr. Dunn’s motion, is: what is meant by all material facts? Construed literally, it could, as Mr. Dunn contends, mean all facts conceivably bearing upon the particular issue in dispute. If that was the Legislature’s intention, a respondent’s ability to comply would ultimately depend upon the ingenuity and speculative talent of the applicant’s counsel. Hypothetically, a series of questions could be devised, the answers to which could conceivably be material. A witness’ inability to answer such inquiries could then give rise to repetitive and, in theory, endless assertions that the respondent was failing to fulfil its statutory obligation.

13. In our view, the amendments are not intended to permit an applicant to engage in a fishing expedition of a sort suggested by that hypothesis. Where relief under section 1(4) and/or section 55 is claimed, we believe that the respondent’s obligation, must be sensibly delimited. In defining the obligation, some assistance is obtained by looking to Court practice in examinations for discovery in civil actions. Clearly, the analogy is not perfect or complete: the purpose of pre-trial discovery in a civil suit is quite different, as is the rationale for restricting the ambit and nature of questioning on discovery. However, the analogy is instructive, especially where there are corporate parties, for the limited purpose of indicating who should be produced, the extent to which the person produced should prepare himself to testify, and the remedies, should the witness fail to supply information properly requested from him.

The Board went on in Guaranteed Insulation ’77 Ltd. to say:

16. By enacting sections 1(5) and 63(13) of the Act, the Legislature has recognized that most, if not all, of such facts lie within the exclusive knowledge of the respondents in proceedings under sections 1(4) and 63. As noted in Woodway Structural Components, [1971] OLRB Rep. Aug. 545, “in general, the effect of ‘peculiar knowledge’ is that it may mean that very little evidence is required to satisfy the evidentiary burden when it rests upon the party lacking such knowledge”. Similarly, the Board is of the view that as regards particularity and specificity, the effect of “peculiar knowledge” is that very little is required to satisfy the requirement of providing particulars or specifics, when such requirement rests upon the party lacking such knowledge.

17. It is also relevant to note that the applicant alleges that each of the respondents carries on business in the construction industry. As noted by the Board in Brant Erecting and Hoisting, (supra), in the construction industry business may often be effectively transferred from one corporate entity to another without clear and concrete indicia of a disposition of the business since many construction industry employers do not have the permanence or investment in fixed plant and equipment characteristic of a manufacturing concern. The Board also stated in that case (at paragraph 13): “A small construction company can move from jobsite to jobsite or place to place, assembling tools, equipment and a labour force as required after it has made a successful bid. There may be no established economic organization, labour force or configuration of assets. A single principal may have several companies which are used, more or less interchangeably, so that the bidding is done and work performed through whichever company is convenient.” Thus, the nature of the construction industry also militates against an unrealistically onerous approach to particularization of allegations in applications under sections 1(4) and 63 which pertain to employers in the construction industry.

18. For the foregoing reasons, the Board is of the view that an applicant under section 1(4) or 63 generally satisfies the requirements of fairness and natural justice implicit in Rule 47 by providing the information required by Form 21a (in the case of an application under section 63) or Form 21f (in the case of an application under section 1(4)). Moreover, even some of that information may not be required in the circumstances of a particular case; for example, as indicated above, the precise date of the alleged sale may well be unknown to, and unascertainable by an applicant. Thus, an indication of the time frame to which the section 63 application pertains (such as the 27 month time frame implicit in the allegations in the present case) may suffice.

19. It is also important to note that the Board’s jurisprudence under sections 1(4) and 63, including the Canada Cement Lafarge case (supra), provides respondents with a reasonably clear indication of the extent of their obligation to adduce evidence under sections 1(5) and 63(13). An applicant union that is aware of facts (material to its allegation that a sale has occurred or that the entities in question are or were under common control or direction) which it chooses not to specify in its application, runs the risk of prolonging the proceedings by providing a respondent with grounds for requesting an adjournment if it can satisfy the Board that it has suffered real prejudice as a result thereof.

40The responding parties argued that portions of the pleadings lacked sufficient particularity. Clearly, these allegations refer to allegations of meetings, discussions and arrangements to which, if they occurred, one would not expect Labourers’ Local 506 to have been invited. Accordingly, if one assumes that the allegations are true for the purposes of this motion, the applicant could not be expected to have much in the way of detail to plead. The Board concludes that they are sufficiently particularized for the purposes of a related employer application. The responding parties are not embarrassed by an inability to respond to the case as pleaded. That is, all the responding parties are on notice that Labourers’ Local 506 alleges that the business relationships surrounding the construction of the Holiday Inn Select in Mississauga will demonstrate that there has been a transfer of business or that the responding parties are carrying on associated or related businesses or activities under common direction and control. The parties can easily prepare to give evidence as to what these business dealings were, and who was responsible for them.

41It will be up to the panel hearing this application, but it would appear that this obligation does not mean that every individual named in the application must testify, nor that if, in fact, the business arrangements were handled exclusively by some other individual, that the other individual will not be required to testify. The responding parties should be prepared to discuss every detail of the Holiday Inn Select Project, and perhaps some relevant details of the Silver City project. This does not, however, mean that they would be required to respond to cross-examination covering areas entirely unrelated to the specific arrangements pleaded.

42Accordingly, the Board declines to strike any portion of the Related Employer Application or to require further particulars. This matter will proceed, without the section 96 application, on the dates set in September 2001.

43I am not seized of this application.

“David A. McKee”

for the Board