Ontario Labour Relations Board
File No.: 1301-79-JD Date: February 5, 1980 Citation: [1980] OLRB Rep. February 247
Between: Bricklayers, Masons Independent Union of Canada — Local 1, (Hereinafter Local 1) Complainant
And: Napev Construction Ltd., Venice Masonry Contractors (Toronto) Limited Co., and International Union of Bricklayers and Allied Craftsmen — Local 2, (Hereinafter Local 2) Respondents
And: Masonry Contractors Association (Toronto) Incorporated, Intervener
And: Masonry Contractors Association of Ontario, Intervener
Before: George W. Adams, Chairman and Board Members H. J. F. Ade and D. B. Archer.
Appearances: N. A. Endicott, John Lang, Otello Ungaro and John Meiorin for the Applicant; A. M. Minsky and John Zanussi for the Respondent, International Union of Bricklayers and Allied Craftsmen — Local 2; Steven McCormack, F. R. von Veh, P. Shishkov and N. Shishkov for the Respondent, Napev Construction Ltd.; Howard W. Isenberg for the Respondent, Venice Masonry Contractors (Toronto) Limited Co.; Gerald B. Yasskin and Stanley Sherr for the Intervener, Masonry Contractors Association (Toronto) Incorporated; and R. D. Perkins for the Intervener, Masonry Contractors Association of Ontario.
Decision of the Board
1The complainant requests that the Board issue a direction under section 81 of The Labour Relations Act with respect to an alleged assignment of work. The work consists of an 80 unit senior citizen project known as Ontario Housing Project 6 under construction by Napev Construction Limited (hereinafter referred to as "Napev"). The masonry subcontractor is Venice Masonry Contractors (Toronto) Limited Co. (hereinafter referred to as "Venice") whose employees are members of the complainant. Venice and the complainant are parties to a collective agreement. Venice is a member of the Masonry Contractors' Association of Toronto (hereinafter referred to as "MCAT") and the complainant has an agreement with this group of contractors.
2This complaint arises out of the complainant's concern about a grievance and section 112a proceeding lodged by the International Union of Bricklayers and Allied Craftsmen, Local 2 (hereinafter referred to as "Local 2") against Napev alleging that Napev is bound to a collective agreement which requires that it subcontract masonry work only to employers who employ members of Local 2. The matter came before the Board in File No. 0534-79-M whereupon MCAT, Venice and the complainant sought to intervene, claiming they would be adversely affected by any Board order directing Napev to use only masonry subcontractors employing members of Local 2. They also contend that the underlying grievance is a jurisdictional dispute between the two unions and that they were proper parties to such a dispute. The panel of the Board to which the grievance was referred ruled that the interveners did not have sufficient status to participate in the hearing as parties. It reasoned that none of them were bound by the collective agreement alleged to be binding upon Local 2 and Napev, although they might be incidentally or commercially affected by a determination as to the merits of the grievance. However, in accordance with Board practice, the panel granted an adjournment to provide an opportunity for the filing of a section 81 complaint if any of the interveners so chose. (See Board decision dated September 17, 1979 and Artex Precast Limited, Board File No. 1733-79-JD, unreported decision dated May 28, 1976, for an articulation of this adjournment policy.) In granting the adjournment that panel of the Board was careful not to make a ruling on whether or not a jurisdictional dispute existed within the meaning of section 81(1).
3At the outset of the instant proceedings counsel for Local 2 requested that the complaint be dismissed on the basis that the complainant had not brought a work assignment before the Board within the meaning of section 81(1) of the Act. It was counsel's submission that to trigger the subsection, a request for work must have been made by Local 2 of Venice, the employer. Counsel was unaware of any such request and he noted that the complainant's filings made no such allegation. In response to this motion, and in accordance with Board practice, the Board required the complainant to satisfy it that section 81 had application.
4It was agreed that the panel could examine and rely upon the wording of Local 2's grievance filed in Board File 0534-79-M. The application therein makes reference to and appends a copy of a grievance dated June 13, 1979 from Robins and Partners, the applicant's solicitors, and directed to the respondent, Napev. This letter reads:
Dear Sirs,
Re: Collective Agreement between Napev Construction Limited and The Toronto Building and Construction Trades Council dated March 14th, 1974
Re: Violation by Napev Construction Limited of the said Collective Agreement
Re: O.H.C. Senior Citizens' Project, Dunlop Street, Richmond Hill ("the Project")
We wish to advise that we are the solicitors for the Toronto Building and Construction Trades Council ("the Council") and the International Union of Bricklayers and Allied Craftsmen, Local 2 ("Local 2") and are now retained with respect to the following grievance.
By collective agreement dated March 14th, 1974 made between Napev Construction Limited ("Napev") and the Council ("the Collective Agreement"), the parties agreed, inter alia, as follows:
"2. The company recognizes the Council and its affiliated unions as the collective bargaining agency for all its employees.
The Company agrees that it will employ only members of the unions affiliated with the Council and will let contracts or sub-contracts only to individuals or companies whose employees are members in good standing in the unions affiliated with the Council and will do all things necessary to insure that only members of the unions affiliated with the Council are employed in construction work in which the Company is engaged.
The Company agrees to recognize and be bound by the agreements existing between each of the unions affiliated with the Council and the Toronto Construction Association and specifically agrees that the provisions relating to wages, hours and working conditions set forth in the said agreements shall be binding upon the Company. In the event any of the said conditions of any of the said agreements are altered or amended at any time during the currency of this agreement, the Company shall be bound by such alterations and amendments..."
We hereby notify you that the Council and Local 2 on their own behalf and on behalf of certain unemployed members of Local 2, grieve that Napev has violated and continues to violate the Collective Ageement, as follows:
From and after June 1st, 1979, and continuing as of the date hereof, Napev has failed or refused to let or sub-contract the masonry work at the Project "... only to individuals or companies whose employees are members in good standing in the unions affiliated with the Council ..." as required by Article 3 of the Collective Agreement and has thereby breached the provincial collective agreement between The International Union of Bricklayers and Allied Craftsmen and the Ontario Provincial Conference of International Union of Bricklayers and Allied Craftsmen and the Masonry Industry Employers Council of Ontario Dated May 1st, 1978 ("the Bricklayers Agreement"), Article 1(c) thereof;
Further, or alternatively, Napev has failed or refused to "... employ only members of the unions affiliated with the Council ..." to perform the above described work at the Project as required by Article 3 of the Collective Agreement and thereby has breached the Bricklayers Agreement, Article 5 thereof;
Napev has failed or refused to "... do all things necessary to insure that only members of unions affiliated with the Council are employed in construction work in which the company is engaged ..." with respect to the Project, as required by Article 3 of the Collective Agreement.
At all material times to this grievance, there have been, and still are:
(i) "... individuals or companies whose employees are members in good standing in the unions affiliated with the Council ...";
(ii) "... members of the unions affiliated with the Council ..."
who are qualified to perform the above-mentioned work at the Project and these individuals, companies and members, as the case may be, are and have been, ready, willing and able to perform this work for Napev at the said Project.
RELIEF SOUGHT:
(a) A Declaration that Napev has violated and continues to violate the Collective Agreement and the Bricklayers Agreement, as herein-before set forth;
(b) An Order that Napev cease and desist from continuing to violate the Collective Agreement and the Bricklayers Agreement, as hereinbefore set forth;
(c) An Order that Napev let contracts or sub-contracts in connection with the hereinbefore mentioned work at the Project "... only to individuals or companies whose employees are members in good standing in the unions affiliated with the Council ...", in accordance with Article 3 of the Collective Agreement and in accordance with Article 1(c) of the Bricklayers Agreement;
(d) Further, or in the alternative, an Order that Napev forthwith "... employ only members of the unions affiliated with the Council ..." to perform the hereinbefore mentioned work at the Project, in accordance with Articles 2, 3 and 5 of the Collective Agreement and in accordance with Article 5 of the Bricklayers Agreement;
(e) An Order that Napev cease and desist from employing or continuing to employ persons or permitting persons to be employed at its Project who are not members in good standing of unions affiliated with the Council;
(f) An Order that Napev "... do all things necessary to insure that only members of the unions affiliated with the Council are employed in construction work in which the company is engaged ...", in accordance with Article 3 of the Collective Agreement;
(g) An Order that Napev forthwith apply the full terms and conditions of the Collective Agreement and the Bricklayers Agreement at its Project at which it is now engaged or such other projects as it may n the future be engaged and, without limiting the generality of the foregoing, an Order that Napev
i) pay to and on behalf of the said employees, proper wages, overtime, and vacation pay and travelling allowances as and when required by the Bricklayers Agreement;
ii) make and remit the required contributions and payments for Fringe and related benefits as and when required by the Bricklayers Agreement;
(h) Damages against Napev by reason of the aforementioned violations of the Collective Agreement and the Bricklayers Agreement, including interest on the arrears for each month or part thereof in which Napev has been in default with respect to the contributions and payments required under the collective agreements;
(i) An Order that Napev pay to the Council and Local 2 such fees and expenses, legal or otherwise, as it may have incurred by reason of the aforementioned violations of the Collective Agreement and the Bricklayers Agreement;
(j) Such further and other relief as may be appropriate in the circumstances.
We wish to point out that Napev is now violating the Board's directions made in its decision dated April 26th, 1979 (O.L.R.B. File No. 2121-78-M) wherein the Board directed that Napev abide by the terms of the various provincial agreements which are now binding on the affiliated unions of the Council. Unless the conduct complained of herein is forthwith rectified by Napev, we are instructed to refer this grievance to arbitration by the Ontario Labour Relations Board pursuant to Section 112a of the Labour Relations Act and of course, intend to bring to the Board's attention Napev's breach of the Board's direction, as aforesaid."
5Counsel to the complainant directed the Board's attention to a growing number of cases before labour boards and courts with events centering on the impact of "subcontracting" clauses. He submitted that the instant case was but another example of such controversy and that such cases were clearly the product of jurisdictional conflict. However, if a formal request for work was necessary in order to trigger section 81, he further contended that the execution of the agreement between Napev and The Toronto Building and Construction Trade Council (hereinafter referred to as "the Council") dated March 14, 1974 or the grievance filed by Local 2 dated July 13, 1979 established that Local 2 is "requiring an employer..., to assign particular work to persons in a particular trade union ...." within the meaning of section 81(1). In making this argument the complainant relied heavily on the Board's decision in The Metropolitan Toronto Apartment Builders Association case [1978] OLRB Rep. Nov. 1022 at 1034 where the then Chairman of the Board made the following comment with respect to the apparent interrelationship between subcontracting clauses and section 81(1) of the Act:
"The Board has made it clear that the enforcement of a sub‑contracting clause against a general contractor can be intercepted as a requirement that an employer assign particular work to persons in a particular trade union or in a particular trade, craft or class rather than to persons in another trade union or in another trade, craft or class within the meaning of section 81(1) of the Labour Relations Act. See Beer Precast Concrete Limited, [1969] OLRB Rep. Jan. 1108, Donaldson Barron Ltd., OLRB Rep. Dec. 793 and, for a general discussion of what constitutes a jurisdictional dispute, Eamon Riggs Limited, [1978] OLRB Rep. Mar. 228. Given the Board's decisions that an attempt to enforce a subcontracting clause against a general contractor can set in motion the section 81 procedure, it would appear to follow that the natural operation of a sub-contracting clause can also give rise to the same legal result. In other words, once a contract is let persuant to a sub-contracting clause, then at that point it can be said that a trade union is requiring an employer to assign particular work to persons in a particular trade union rather than to some other trade union, giving access to the jurisdictional dispute procedures under section 81. The jurisdictional dispute only materialises when the contract is let, as it is at that point that there comes into existence a particular work assignment flowing from the sub-contracting provision."
6Counsel for Local 2 submitted that the foregoing view was an obiter statement and, if taken literally, is clearly inconsistent with the overwhelming weight of authority on the meaning of section 81(1) of The Labour Relations Act. He emphasized that the complainant adduced no evidence establishing that Local 2 has asked Venice to assign the masonry work to it; members nor was their evidence adduced that Napev had approached Venice on behalf of Local 2 and requested the masonry work be assigned to Local 2 members. He contended that the existence of such evidence is fundamental to this Board having jurisdiction under section 81(1). It was his submission that the term "employer" in section 81(1) is clearly a reference to a contractor who directly assigns work to members of a trade union (i.e. someone who directly employes employees to perform the work in question) and cannot be interpreted to include a general contractor who has contracted with a subcontracotor for the performance of certain work. Thus, it was his submission that the subcontractor initially assigns the work to persons in a particular trade union and when another trade union seeks to require that subcontractor to change the initial work assignment to its member, section 81(1) is triggered. He referred the Board to a long line of authority supporting this interpretation of the section including Eamon Riggs Limited, [1978] OLRB Rep. Mar. 228; Donaldson-Bar ron Limited, [1976] OLRB Rep. Dec. 793; Artex Precast Limited, Board File No. 1733-75-JD, unreported decision dated December 23, 1976; Day Signs Limited, [1976] OLRB Rep. May 217; C. A. Pitts Engineering, [1973] OLRB Rep. Feb. 85; Northdown Drywall and Construction Limited, [1972] OLRB Rep. June 666; Ellis Don Limited, [1972] OLRB Rep. Jan. 74; Beer Precast Concrete Limited, [1969] OLRB Rep. Jan. 1108. He also acknowledged that many of these cases and others cited therein, while confirming the principle he relied on, established that a general contractor could act as "an agent" for a trade union requiring an assignment of work from an employer. However, he contended that in the facts at hand there simply was no evidence proving that Napev had approached Venice on Local 2's behalf requesting that the work be assigned to Local 2's members. Indeed, a; counsel for the Masonry Contractors Association of Ontario pointed out, no evidence was presented to the Board establishing the details of the contractual relationship between Napev and Venice and the degree of control that Napev might properly assert over Venice.
7The Masonry Contractors Association (Toronto) Inc. and the Masonry Contractors Association of Ontario supported Local 2's position in this respect whereas Napev and Venice supported the position urged by the complainant.
8To resolve the issue before us, it is necessary to review the application of section 81 since its inception. Given the recent collective bargaining conflict and litigious history between the complainant and Local 2, it is difficult to deny the competitive or jurisdictional nature, if you will of the differences between them (although we would note that each union is centrally based on the same trade skills which is unlike the more conventional nature of jurisdictional conflict). However, section 81(1) does not employ the general term "jurisdiction" in fashioning the Board's mandate, but instead specifically provides the Board with discretionary power to inquire into a complaint that a trade union is or was requiring an employer to assign particular work to persons in a particular trade union rather than to persons in another trade union, to paraphrase a portion of the subsection. The Board, therefore, is not provided with a broad mandate to inquire into any phenomenon having its origin bred of competitive jurisdictional conflict. Rather, the subsection is cast much narrower, restricting the Board's intervention to specific acts of conflict that tend to disrupt a construction project or site. Moreover, given the close association between craft jurisdiction and construction industry stability, there may be good reason why this Board has not been provided with a broad preventive mandate to inquire into all things "jurisdictional." Some friction in this respect is likely always to be present and, thus, the section is targeted at the most overt manifestations.
9Section 81(1) currently provides:
"81. - (1) The Board may inquire into a complaint that a trade union or council of trade unions, or an officer, official or agent of a trade union or council of trade unions, was or is requiring an employer or an employers' organization to assign particular work to persons in a particular trade union or in a particular craft of class rather than to persons in another trade union or in another trade, craft or class, or that an employer was or is assigning work to persons in a particular trade union rather than to persons in another trade union, and it shall direct what action, if any, the employer, the employers' organization, the trade union or the council of trade unions or any officer, official or agent of any of them or any person shall do or refrain from doing with respect to the assignment of work." [our emphasis]
It is the complainant's position that Local 2's grievance against Napev or the subcontract provision in the agreement between them constitutes a request of an employer by a trade union that work be assigned to its members. Can the subsection reasonably be so interpreted?
10To begin our analysis, we note that while Napev might be described as an employer for the purposes of the agreement with Local 2, there is no evidence that Napev directly employs any bricklayers or masons at the subject site. It, of course, subcontracted this work to Venice. However, subsection 81(1) would appear to be referring to an employer who is directly performing "the particular work" because it describes this work as work the employer had initially assigned "to persons in another trade union." If Napev can be said to have assigned any work, it assigned masonry work to another employer — a subcontractor. The subcontractor (Venice) in turn directly assigned this work to persons in a trade union, i.e. members of Local 1. Thus, on a close reading of the subsection, the term employer is more reasonably referable to Venice than to Napev. The only way to avoid the implications of this interpretation would be to "look through" Venice and equate the subcontracting of the masonry work to Venice as being, in fact, an assignment of work by Napev to members of Local 1. However, this approach ignores the substantial history of interpretation accorded to the subsection and makes a difficult equation between the verbs "assign" and "subcontract." On this latter point, an assignment of work in industrial relations more usually describes the direct allocation of work by an employer to his employees or, at least, to persons in a particular trade union. And in the context of a jurisdictional dispute under section 81, the sect on contemplates that the Board might have to alter this assignment in order to resolve the conflict. On the other hand, the contractual relationship between Napev and Venice is usually described as a subcontract. But, if any doubt remains, legal precedent underpinning this subsection renders these initial impressions indisputable.
11Until 1960, no particular machinery existed in Ontario to settle jurisdictional disputes in the construction industry. This situation proved unsatisfactory and following a long study and publication of the Report of the Select Committee on Labour Relations (1958), The Labour Relations Act was amended in 1960 by enacting the then sections 66 and 76. Section 76 empowered the Lieutenant Governor-in-Council to appoint one or more jurisdictional disputes commissions each composed of one or more persons. Section 66(1) read as follows:
"66(1). Upon complaint to the Board that a trade union or council of trade unions, or an officer, official or agent of a trade union or council of trade unions, was or is requiring an employer or an employers' organization to assign particular work to employees in a particular trade union or in a particular trade, craft or class rather than to employees in another trade union or in another trade, craft or class, or that an employer was or is assigning particular work to employees in a particular trade union rather than to employees in another trade union, a jurisdictional disputes commission may, after consulting any person, employers' organization, trade union or council of trade unions that in its opinion may be affected by the complaint, make such interim order with respect to the assignment of the work as it in its discretion deems proper in the circumstances, and the employer, employers' organization, trade union, council of trade unions and the officers, officials or agents of any of them shall comply with the interim order."
12It is apparent from this wording that the provision, as orginally drafted, was aimed at on-site jurisdictional assignment made by an "employer" to his "employees." In fact, it was the very strict legal interpretation holding that the "requiring" trade union had to be claiming the work on behalf of current or existing employees of the employer that caused havoc in the application of the section and eventually gave rise to an amendment substituting the now existing term "persons" for "employees." This decision was rendered in Regina v. Orliffe Exparte Can. Pittsburgh Ind. Ltd. [1961] O.W.N. 223 by Chief Justice McRuer. The case dealt with an allegation that certain work being done under the applicant's collective agreement with the chemical workers union and the painters union belonged to the bridge workers union under an agreement between the painters union and the bridge union. This work, it was alleged, should have been done by composite crews of bridge workers and members of the carpenters union, but the applicant had no employees who were members of either of these latter two unions. The Chief Justice held that by using the word employees the section contemplated only those disputes that arise with respect to the assignment of work by an employer among those that are actively engaged on the work over which he has direction. While this restrictive interpretation of the word employee might not be given if the same application were brought today (See Blouin Drywall Contractors Ltd. (1975), 75 CLLC ¶14,295 ihere can be little doubt that the section, as initially drafted, was addressing itself to direct work assignments from employees to persons who were or who could become employees and not to contractual relations between general contractors and their subcontractors (See also, to the same effect, Regina v. Jurisdictional Disputes Commission, Ex parte Wood, Wire & Metal Lathers' International Union 1963 CanLII 292 (ON HCJ), [1963] 2 O.R. 698; Regina v. Ontario Labour Relations Board, Exparte Bennett & Wright Ltd., 1968 CanLII 359 (ON CA), [1968] 2 O.R. 168; Regina v. Ontario Labour Relations Board, Exparte International Association of Bridge, Structural & Ornamental Ironworkers, Local 736 1968 CanLII 460 (ON HCJ), [1969] 1 O.R. 405; the latter case making it clear that the subsection nowhere limits its applicability to disputes between unions having collective bargaining rights with the employer involved). This situation was reviewed by the Golden-berg Commission appointed in 1961 to inquire into labour-management relations in the construction industry and at page 53 of the Commission's 1962 report it was recommended "that the word persons be substituted for the word employees in section 61(1) .... so that a jurisdictional disputes commission may have jurisdiction to receive complaints from unions whether or not they have members in the employ of the employer or employers' organization concerned."
13While this recommendation was not immediately acted upon by the Legislature, see The Labour Relations Amendment Act, 1970 (No. 2), S.O. 1970, c. 85,s. 30, many other of the Commission's important recommendations were and, in 1966, the Act was further amended to give the Ontario Labour Relations Board direct responsibility for exercising all the powers previously held by the special commission. However, for the purposes of this complaint, it is crucial to note that no amendment was made to the word employer and litigation over its meaning in relation to the interaction between trade unions and general contractors has remained unaffected.
14An early and important case in this respect is Beer Precast Concrete Limited [1969] OLRB Rep. Jan. 1108. Pigott Construction Company Limited, the general contractor at the University of Guelph Physical Science complex, had subcontracted the erection of precast wall cladding to Beer Precast, the complainant. Beer had assigned all of this work to the respondent Labourers' Union, Local 506 with the exception of certain tasks which Beer had assigned to the respondent Ironworkers, Local 736. This latter assignment was made by Beer at the request of Pigott and was the subject matter of the complaint. The Ironworkers objected to the Board taking jurisdiction on the basis that it was Pigott Construction, the general contractor on the project, and not the Ironworkers, Local 736 who required the complainant to assign part of the disputed work to ironworkers. However, the Board ruled that it had jurisdiction subject to Beer Precast being able to adduce evidence to support its allegations that it was the Ironworkers, Local 736 who required Pigott to make the complainant hire an ironworker for a part of the work in dispute. The Board then adjourned to permit Local 736 to challenge this ruling in the courts and the Ontario Supreme Court in Regina v. Ontario Labour Relations Board, Ex parte International Association of Bridge, Structural & Ornamental Iron workers, Local 736 1968 CanLII 460 (ON HCJ), [1969] 1 O.R. 405 upheld the Board's order. In doing so, the Court based its reasoning on the proper meaning to be attributed to the phrase in the subsection "or agent of a trade union", holding that it was open for the complainant to prove that the Ironworkers' Union instigated or caused the action of Pigott alleged in the complaint and that, therefore, Pigott was acting as the Ironworkers' agent within the meaning of the subsection. On this point the Court had the following to say (at page 411):
"From a consideration of the wording of that paragraph and also of the other paragraphs of the complaint it is plain that the gist of Beer's complaint is the allegation that Iron Workers instigated or caused the action of Pigott alleged in the complaint. Whether that allegation has been proved is a question of fact within the exclusive jurisdiction of the Board.
In my opinion the word "agent" as used ins. 66(1) is used in its ordinary colloquial sense. The Oxford English Dictionary (1888 edition) gives as one of the meanings of agent:
- Of persons: One who does the actual work of anything, as distinguished from the instigator or employer; hence, one who acts for another, a deputy, steward, factor, substitute, representative or emissary. (In this sense the word has numerous specific applications in commerce, politics, law etc., flowing directly from the general meaning.)
Having regard to its context and the purpose of the statute in which it is four d I am satisfied that "agent" in s. 66 is used in its broad general sense rather than in a narrow specialized sense such as is found in the law of contracts. To hold that a union could avoid the effect of s. 66 by interposing some third person or agency to do the requiring would give s. 66 an unduly restrictive meaning and frustrate the plain purpose of the enactment."
The matter then returned to the Board for Beer to establish the agency relationship. Before the Board the subcontract between Pigott and Beer was entered into evidence wherein Beer Precast undertook only to employ persons with union affiliations that were compatible with the conditions under which Pigott was carrying on its contract with the owner and under conditions which were satisfactory to Pigott. Also introduced was a collective agreement between Pigott and the Ironworkers wherein Pigott undertook not to subcontract any work covered by the agreement to any person or corporation which was not in contractual relationship with the Ironworkers' Union. The evidence indicated that, on Beer commencing the work by employing members of Labourers' Local 506, the Ironworkers' Union filed a grievance under its agreement with Pigott alleging a violation of the subcontract clause. A board of arbitiation found that Pigott was in fact in breach of the agreement by its subcontract with Bee Precast, following which Pigott wrote to Beer requesting that Beer employ "the required categories of employees...." There was also evidence of direct conversations between Beer officials and an Ironworkers' business agent advising Beer that if it did not employ ironworkers on the job it was going to "chase Beer all over Canada." The Board concluded, on the basis of all the evidence, that Pigott had acted as the Ironworkers' agent noting that Pigott had not taken over the contract from Beer Precast and the Ironworkers were content to have Beer Precast retain its contract with Pigott. In this respect the Board reasoned (at page 1113):
“The board of arbitration referred to above found that Pigott acted in breach of its collective agreement with the Ironworkers' Locals 736 and 721 by subcontracting the erection of precast cladding on the University of Guelph project to Beer Precast. Pigott, however, did not cancel or take over the contract of Beer precast to hire ironworkers to perform certain of the erection work over which the Ironworkers claimed jurisdiction. Pigott was motivated to do so because only this course of action would mollify the Ironworkers.
It was admitted that the Ironworkers had been trying for some period of time to make Beer Precast hire ironworkers to do certain phases of the work in dispute. Based on the evidence it is fair to say that the Iron-workers were content to have Beer Precast retain its contract with Pigott, provided that Beer Precast recognized the jurisdictional claim of the Ironworkers to parts of the erection work and employed ironworkers to do that work. To ensure such recognition the evidence supports the conclusion that the Ironworkers applied pressure to, or instigated, Pigott to require Beer Precast to employ ironworkers. Stated another way, Pigott was the agent of the Ironworkers, as the word "agent" in section 66(1) of the Act is interpreted by Mr. Justice Fraser, in requiring Beer Precast to hire a member of the Ironworkers' Local 736. We would add that, in any event, on the evidence we find that the Ironworkers' Local 736 directly, without the aegis of Pigott, also required Beer Precast to hire one of its members.
The Board accordingly finds that Beer Precast has established in evidence the material facts upon which it relies in its complaint. The conditions precedent to the Board taking jurisdiction under section 66(1), in this regard, have been satisfied."
15All subsequent cases have followed this same approach to the interaction of general contractors and trade unions in the context of jurisdictional conflict with many of the cases exhibiting a real reluctance to conclude an agency relationship without the clearest of evidence. For example, in ABE Dick Masonry Limited [1972] OLRB Rep. Jan. 74 a general contractor under collective agreement with the Carpenters' Union subcontracted masonry work to a subcontractor under contract with the Labourers' Union contrary to a subcontract clause in its collective agreement with the Carpenters' Union. At paragraph 4 of the decision, the Board noted the latent jurisdictional conflict between the two unions, but went on to point out that the Carpenters were not seeking the work from the subcontractor ABE Dick.
"Lurking in the background there is undoubtedly a jurisdictional dispute between the Carpenters and Labourers. However, the Carpenters are proceeding to arbitration under their collective agreement with Tncom and are not threatening a work stoppage. The Carpenters advised the Board that in these proceedings they are not seeking an assignment of work from ABE Dick and would not except such an assignment. They are content to pursue their lawful remedy under the collective agreement."
The Board concluded that while the general contractor and the Carpenters' Union might have the same interest in that the general contractor's pursuit of its own interest might benefit the Carpenters' Union, the situation fell short of the evidence adduced in the Beer Precast situation and did not elevate the general contractor to the status of an agent for the Carpenters' Union.
16Similarly, in Ellis Don Limited [1972] OLRB Rep. Mar. 215 a general contractor subcontracted work to a subcontractor having a collective bargaining relationship with the Lathers' Union and not the Carpenters' Union as the general contractor was obligated to under its agreement with the latter trade union. The Carpenters' Union filed a grievance against the general contractor and it, in turn, wrote to the subcontractor advising the subcontractor that it would be held liable for all costs associated with the grievance. Before the Board the Carpenters' Union took the position that the complainant general contractor was not the employer who made the work assignment and that, although the Carpenters claimed jurisdiction over the work, they were not requiring the complainant to assign the work to them. The Board dismissed the complaint on the basis of both objections and wrote the following passage at paragraph 11:
"We note that unlike section 123 of the Act, subsection (1) of section 81 does not specifically provide that the Board may inquire into a complaint "of an interested party". Be that as it may, let us assume for purposes of argument, but without so finding, that Ellis Don Limited is a party which can make the instant complaint. Based on the evidence before us, only Acme qualifies as "an employer" within the meaning of the said subsection since it is the employer who assigned the work which is the subject-matter of the complaint. Acme, however, was not required by a trade union to assign particular work to persons in a particular trade union rather than to persons in another trade union and did not of its own initiative assign particular work to persons in a particular trade union rather than to persons in another trade union. More specifically, Acme assigned the work involved in the installation of drywall systems and direct-hung grid ceiling systems on the Thompson Building to persons in its employ who are lathers. But Acme cannot be said to have assigned the work to Lathers rather than Carpenters since the respondent Carpenters at no time advised Acme that they claimed jurisdiction over the said work and in no manner sought to require Acme to assign the work to members of their craft. Moreover, the complainant, Ellis Don Limited, at no time and in no manner sought to require Acme to assign the said work to Carpenters rather than Lathers. This being so, it fact, there is no work assignment dispute within the meaning of subsection (1) of section 81 of the Act. The Board therefore is without jurisdiction to entertain the instant complaint."
17Other cases, all to the same effect, are Northdown Drywall and Construction Limited (1972) 72 CLLC ¶16,064; Deep Foundations Limited [1975] OLRB Rep. Jan. 66; Day Signs Limited [1976] OLRB Rep. May 217; Artex Precast Limited, supra; Donaldson-Barron Limited [1976] OLRB Rep. Dec. 793; and Eaman Riggs Limited [1978] OLRB Rep. Mar. 228. Of particular note, however, is the following paragraph taken from the Day Signs (decision suggesting that the mere enforcement of a subcontract clause may not be sufficient to trigger a jurisdictional dispute if the grievance only reveals that the union does not wish a particular employer to perform the work in question.
"It is clear from the evidence that there is some considerable doubt whether Day would qualify as a potential signatory to the collective agreement between ECAT and the complainant. However, be that as it may, we interpret the evidence as not establishing that the complainant unequivocally desired the work in dispute from Day. The behaviour of the complainant is far more consistent with a desire to have the work in dispute not performed by Day but rather by a signatory to the collective agreement between ECAT and the complainant. We note in passing that the presence of representatives from Ainsworth and ECAT at the meeting and the presence of a representative from ECAT at the hearing appears to indicate that such a desire is not solely attributable to the complainant. In our view, in order for a trade union to satisfy the phrase "was or is requiring" in section 81(1), it must demonstrate an unequivocal interest in the work in dispute with respect to the employer or employer's organization which is directly involved in the dispute. It is not sufficient for a trade union merely to show that it does not wish a particular employer to perform the work in dispute."
This particular interpretive approach to section 81(1) appears to reflect the unique shape and stability of construction industry labour relations thoughtfully outlined by the British Columbia Labour Relations Board in R. M. Hardy & Associates Ltd. [1978] 2 Can. LRBR 357 and the fact that both labour boards and courts have held subcontracting clauses to be lawful contractual provisions. But the same Hardy decision highlights that board's concern that these provisions not be unfairly used by aggressors in jurisdictional battles. (See also Duke Point Development Limited et al, August 8, 1979, unreported decision of B.C.L.R.B.) However, the Ontario Labour Relations Board's position in this respect cannot be determined on the facts at hand given the wording of the Ontario Statute. The evidence does not reveal the terms of contract between Napev, the general contractor, and its subcontractor Venice. In addition, there has not yet been an arbitration of Local 2's grievance, the result of which may or may not cause Napev to take steps against Venice's existing assignment of the work in dispute. At that point, a set of concrete facts might exist against which the agency status of Napev on behalf of Local 2 could be reviewed.
18For all of the foregoing reasons we are of the view that the facts before us do not raise a jurisdictional dispute within the meaning of section 81(1). There is abundant authority contrary to the conclusion that the mere launching of a grievance by a trade union against a general contractor constitutes a request for work to subcontractors who may have made a work assignment that offends a subcontracting provision in the general contractor's collective bargaining relationship with the grieving union. Having regard to this authority, together with the clear words of subsection 81(1), we do not believe the panel in the Metropolitan Toronto Apartment Builders Association case intended to deviate from this approach by its obiter statement at paragraph 43. That panel was dealing with the fundamental issue of the legality of subcontracting clauses and was, in our opinion, merely raising the possible implications of section 81 for the consideration of all parties interested in the general issue of subcontracting clauses and their potential effect. That panel did not attempt an in-depth analysis of the relationship of such provisions to the wording employed in section 81 and, therefore, cannot be said to have determined the point it briefly passed upon for the purposes of section 81(1). While the existence of subcontract clauses may be symptomatic of underlying jurisdictional conflict and anxiety, the Board's mandate for intervening in this aspect of labour relations is limited by the specific words employed in section 81(1). On the basis of this wording and for the reasons outlined above, it cannot be said that once a contract is let pursuant to a subcontract clause a trade union is inevitably requiring "an employer" to assign particular work to persons in a particular union. A subcontract clause in a collective agreement is a contractual arrangement between a trade union and general contractor limiting the range of subcontractors the general contractor may utilize in the construction of a project. As the analysis above demonstrates, it cannot be said that the general contractor is the employer for the purposes of section 81(1) nor can it be said, at least in the abstract, that the existence of a subcontract clause constitutes a request to all subcontractors that work be assigned to members of a particular trade union. Subcontract clauses are important elements of trade union security and stability in the construction industry and section 81 may not be able to resolve all aspects of the inconvenience they can cause to particular parties. However, because of the aforementioned paucity of facts established in the instant case, an occasion for considering the precise limitations of section 81(1) in relation to subcontract clauses does not arise.
19This complaint is dismissed.