[1980] OLRB Rep. January 119
1556-79-M The Carpenters' District Council of Toronto and Vicinity of behalf of Locals 27, 666, 681, 1133, 1747, 1304, 1963, 3227 and 3233, United Brotherhood of Carpenters and Joiners of America, Applicant, v. West York Construction, Respondent, v. Labourers' International Union of North America, Local 183, Intervener.
BEFORE: Ian C. A. Springate, Vice-Chairman, and Board Members W. Gibson and C. A. Ballentine.
APPEARANCES: Douglas J. Wray and Philip Robichaud for the applicant; S. C. Bernardo for the respondent; S. B. D. Wahl and L. Castaldo for the Intervener.
DECISION OF THE BOARD; January 10, 1980.
This is a referral of a grievance to the Board pursuant to section 112a of The Labour Relations Act.
The respondent is a general contractor currently engaged in constructing a residence building at the Salvation Army Training Centre in Toronto. The respondent has contracted out certain of the work involved to a firm called Rili Brothers Forming Limited. Rili Brothers has been employing members of the intervener to actually perform the work in question.
Both the respondent and the intervener contend that the work being performed by the employees of Rili Brothers is within the residential sector of the construction industry and is covered both by a collective agreement between the intervener and the Metropolitan Toronto Apartment Builders Association, and also by a collective agreement between a council of unions, including the intervener, and the Ontario Formwork Association, of which Rili Brothers Forming is a member.
The applicant, for its part, contends that the respondent is bound by the terms of a provincial agreement between the Carpenters Employer Bargaining Agency and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America. This collective agreement relates to work performed in the industrial, commercial and institutional sector of the construction industry. The grievance filed by the applicant alleges that the respondent violated this collective agreement by not ensuring that the work in question be performed by members of the United Brotherhood of Carpenters and Joiners of America. The grievance seeks compensation on behalf of members of the Carpenters union who it is claimed lost work because of this alleged violation. Implicit in the grievance is the claim that the work is within the industrial, commercial and institutional sector.
At the hearing the applicant challenged the status of the intervener to participate in these proceedings on the grounds that it is not a party to the collective agreement being grieved under. The intervener contended that underlying the entire matter was a jurisdictional dispute between the two unions and it indicated that it would be filing a complaint under section 81 of the Act with respect to this alleged jurisdictional dispute. Such a complaint has now been filed (see File No. 1661-79-JD).
The respondent is also of the view that a jurisdictional dispute underlies this matter. However, the respondent takes the position that before the Board considers either the merits of the applicant's grievance or of the intervener's complaint under section 81, the Board should make a determination under section 135 of the Act on the question of whether the work comes within the commercial and institutional sector of the construction industry or outside of that sector, that is within the residential sector.
Section 135 reads as follows:
"The Board shall, upon the application of a trade union, a council of trade unions, or an employer or employer's organization, determine any question that arises as to whether work performed or to be performed by employees is within the industrial, commercial and institutional sector of the construction industry referred to in clause e of section 106."
Both the intervener and the applicant acknowledge that to resolve this matter the Board will be required to made a determination as to whether or not the work comes within the industrial, commercial and institutional sector. The intervener submits that the matter should be determined in the context of its complaint under section 81. The applicant for its part contends that the issue should be decided simply as part of the Board's consideration of the merits of the grievance and without any consideration being given to any section of the Act other than section 1 12a.
As ':he Board indicated in the Napev Construction Limited case, [1979] OLRB Rep. Sept. 886, the proper parties in considering the merits of a grievance are those which are party to, or bound by, the collective agreement being grieved under. Accordingly, absent any consideration of section 135 it would appear that the intervener would lack status to participate in these proceedings. Section 135, however, does not concern itself with rights under a collective agreement but with "work performed or to be performed by employees". As the Board noted in the Harbridge and Cross Ltd. case, [1979] OLRB Rep. April 313, it follows from this that any trade unions, councils of trade unions, employers and employers' organizations which have a direct connection with the project on which the work is, or will be performed, have a sufficient interest to participate in the proceedings. In the instant case a number of employers, employers' organizations, trade unions and councils of trade unions, which have a direct connection with the Salvation Army Training Centre project, may well be affected by a determination as to which sector the work falls within, even though they would normally lack sufficient status to participate in a hearing as to the merits of the applicant's grievance. In these circumstances, we are satisfied that it would be appropriate to accede to the respondent's request and determine the issue of whether the work in question comes within the industrial, commercial institutional sector pursuant to the provisions of section 135.
Because of the particular issues raised by this case, we are of the view that the issue of whether the work comes within the industrial, commercial and institutional sector should be determined under section 135 of the Act prior to a consideration of any other issues relevant to the grievance and before considering the section 81 complaint in File No. 1661-79-JD. In our view, this approach is likely to prove to be the most expeditious manner of proceeding.
In that the issue of whether or not the work comes within the industrial, commercial or institutional sector is integral to the merits of the applicant's grievance, we feel that no useful purpose would be served by requiring that a determination under section 135 be made the subject matter of a separate proceeding. Instead, we propose to adopt the following procedure. The matter will be relisted for hearing for the purpose of entertaining evidence and representations with respect to a determination under section 135 concerning whether or not the work being performed on the Salvation Army Training Centre project comes within the industrial, commercial and institutional sector. For this aspect of the proceedings any trade union, council of trade unions, employer or employers' organization having a direct connection with the project will have standing to participate. Once the issue of whether or not the work falls within the industrial, commercial and institutional sector has been determined, then the matter will again be listed for hearing to deal with any outstanding issues relevant to the applicant's grievance. For that aspect of the proceedings the proper parties will be only those who are party to, or bound by, the collective agreement being grieved under.
The Registrar is directed to relist this matter for hearing for the purpose of entertaining evidence and representations with respect to a determination of whether or not work being performed at the Salvation Army Training Centre project comes within the industrial, commercial and institutional sector of the construction industry. Notices of Hearing should be sent to all trade unions, councils of trade unions, employers and employers' organizations which have a direct connection with this particular project.