[1981] OLRB Rep. December 1702
0893-80-JD Chatham Construction Workers Association, Local 53, affiliated with the Christian Labour Association of Canada, Complainant, v. The Heavy Construction Association of Windsor, Armbro Materials & Construction Ltd., and International Union of Operating Engineers, Local 793, and William Conlin, Respondents.
BEFORE: D. E. Franks, Vice-Chairman and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: Win. R. Herridge, Steven Stuart and Ed Crootenboer for the complainant, G Grossman for The Heavy Construction Association of Windsor, Daniel Frizuk for Armbro Materials & Construction Ltd.; A. M. Minsky, E. A. Ford and William Conlin for International Union of Operating Engineers, Local 793, and William Conlin.
DECISION OF THE BOARD; December 15, 1981
This is a complaint concerning work assignment filed under section 91 of the Labour Relations Act. At the hearing in this matter, counsel for the respondent trade union challenged the jurisdiction of the Board to proceed with the complaint. The Board heard the argument of the parties and reserved its decision. Shortly after, the Board informed the parties that for reasons to follow the complaint was dismissed because the Board had no jurisdiction under section 91 to proceed with the complaint. Herein are the reasons for the Board's decision in this matter.
The parties submitted to the Board an agreed statement of facts as follows:
AGREED STATEMENT OF FACTS
The complainant is duly certified as the Bargaining Agent for all employees of H. T. Reaume Construction Limited (hereinafter referred to as Reaume) in the Counties of Kent and Essex engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same, save and except non-working foremen and persons above the rank of non-working foreman, and all construction labourers in the employ of Reaume in the Counties of Kent and Essex, save and except non-working foremen and persons above the rank of non-working foreman. The Board's certificate was dated December 7, 1971.
There is currently in force a collective agreement between The Heavy Construction Association of Windsor (hereinafter referred to as HCA) (on behalf of Reaume) and the complainant.
Prior to June 13, 1980, Armbro Materials & Construction Ltd. (hereinafter referred to as Armbro) was the general contractor for work known as the E. C. Rowe Expressway job in Windsor. This job involved excavating and backfilling on a large railroad overpass. Armbro contracted with Reaume for the supply of a backhoe and bulldozer with an operator for each to perform the grading and backfilling work on this job. Armbro paid Reaume an hourly rate for the supply of the backhoe and bulldozer (with operators). Armbro is subject to a collective agreement between the HCA and a Council of Trade Unions representing, inter alia, the respondent Local 793. A copy of this collective agreement was filed in this complaint.
On June 13, 1980, Reaume engaged in performing its said work at the job site and was employing its employees, members of the complainant, pursuant to its collective agreement with the complainant. On that day, at the job site, William Conlin, a business agent of the respondent Local 793, requested Armbro's job superintendent to remove Reaume from the job site. Mr. Conlin stated that he was making this request pursuant to Articles 3.5 and 3.6 of the collective agreement between HCA and the said Council of Trade Union since Reaume did not have a collective agreement with the said Council of Trade Unions. [Conlin stated as well that he made this request because the employees of Reaume were represented by the complainant and not by Local 793.] Reaume then told by Armbro's job superintendent that because he [Reaume] did not have a collective agreement with the said Council of Trade Unions he must leave the site by the end of the day. Reaume did this and has done no further work at the job site. Thereafter, the work which had formerly been performed by Reaume was subcontracted by Armbro to Smith Bros. Excavating (Windsor) Ltd., which company is subject to the same collective agreement with the said Council of Trade Unions as is Armbro. The employees of Smith Bros. who thereafter have been performing the grading and back filling at the project are members of Local 793. [After Reaume had left the job, Mr. Reaume called Conlin on the telephone. In the course of the telephone conversation Conlin stated, "you can't be working there, you're doing our work".]
In the course of the telephone conversation, Conlin informed Mr. Reaume in response to a question from Mr. Reaume that he [Conlini took the action he did to enforce the subcontractor's clauses in the collective agreement between HCA.
The portions of the agreed statement of facts in parenthesis were not agreed to by the respondent trade union. Nevertheless, for the purposes of this case we can assume that they were accepted as agreed upon.
- Articles 3.5 and 3.6 of the collective agreement referred to above read as follows:
3.5 The Employer agrees to engage only those sub-contractors, including owner-operators, who are in contractual relations with the Union to perform work set out in the classifications of this agreement.
3.6 The Employer agrees to remove any sub-contractor in violation of Section 3.5 upon written or verbal notification from the Union Representative.
The argument of the respondent trade union that the Board lacks jurisdiction in the present case is quite a simple one. Relying primarily on the decision of the Board in Napev Construction Limited, [1980] OLRB Rep. Feb. 247 as well as various cases cited therein, the respondent trade union argued that on the facts agreed to at no time did the respondent trade union ask or demand that Reaume employ members of the respondent Operating Engineers' union, nor on the facts can Armbro, the employer who let the contract to Reaume, be construed as the agent for the Operating Engineers since Armbro did not request that Reaume employ members of the Operating Engineers' union. Counsel therefore argues that at no time, either directly or indirectly, was a demand made of the employer, that is Reaume, that the work be assigned to members of one union rather than members of another union. In such circumstances, the condition precedent for the application of section 91 has not been obtained and the Board has no jurisdiction to deal with this complaint.
Counsel for the complainant candidly conceded that the Napev decision, supra, was the decision which he had to overcome in order to proceed with his complaint. He argues that the Napev decision is inapplicable given the facts of the present case since, unlike the Napev case, in the present case Armbro requested Reaume to leave the job and that this must be interpreted as a demand by the Operating Engineers for the work in question. He urged the Board to give effect to the decision of the Court in Beer Precast, 1968 CanLII 460 (ON HCJ), [1969] 1 OR. 405, by giving section 91 of the Act a broad interpretation and indeed find that the removal of Reaume from the job constituted a request for the work by the Operating Engineers through Armbro as its agent.
Counsel further argued that Napev was in effect a very narrow case and should be restricted to the very specific facts of that case, that is, where the general contractor (Napev) had no dealings with the subcontractor (Venice). In the present case, Armbro did in fact remove the subcontractor Reaume from the job site.
We cannot accept the argument of counsel for the complainant. The Act and the cases referred to in Napev deal with the notion of "requiring an employer to assign work to members of a particular union". In the present case no such requirement was ever made of either Reaume directly by the respondent Operating Engineers' union, nor indirectly through Armbro. In such circumstances, it is therefore clear that the condition precedent for the making of a complaint under section 91 has not been met.
One may be sympathetic to the plight of the complainant since the members of the complainant union were in fact removed from the job site. However, that they ceased to work on the job once Reaume's contract was cancelled by Armbro does not by itself constitute a demand by the respondent Operating Engineers to Reaume to employ members of the Operating Engineers' union. In the absence of such a request either directly or indirectly, this Board is without jurisdiction to hear a complaint under section 91 of the Act.