United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada, Local 527 v. Dominion Bridge Company Ltd.
0593-81-JD United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada, Local 527, Complainant, v. Dominion Bridge Company Ltd. and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128, Respondent, v. Electrical Power Systems Construction Association, Intervener.
BEFORE: Ian Springate, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: Alex J. Ahee and Jack Porter for the complainant, R. A. Werry and R. Speight for Dominion Bridge Company Ltd.; Harold F. Caley and Matt Bakker for the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128; A. W. Bell for the intervener.
DECISION OF THE BOARD; September 22, 1981
The International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128 is hereby added as a respondent to these proceedings and the Electrical Power Systems Construction Association is added as an intervener.
This is a complaint under section 81 of The Labour Relations Act in which it is requested that the Board issue a direction with respect to the assignment of certain work.
The respondent, Dominion Bridge Company Ltd. ("Dominion Bridge"), has let certain work to employees represented by Local 128 of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers ("the Boilermakers"). Dominion Bridge and the Boilermakers are both bound by the terms of a collective agreement between the Ontario Allied Construction Trades Council and the Electrical Power Systems Construction Association ("EPSCA"). The complainant, Local 527 of the United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada ("the United Association"), requests a direction that the work in question be assigned to its members. The United Association and Dominion Bridge are bound by the terms of a collective agreement entered into between the United Association and EPSCA.
At the hearing, counsel for the Boilermakers contended that the Board should not entertain this complaint due to the provisions of sections 8 1(13) and 8 1(14) of The Labour Relations Act, which provide as follows:
81-(13) Where a trade union or a council of trade unions and an employer or an employers' organization have made an arrangement to resolve any differences between them arising from the assignment of work, the Board may, upon such terms and conditions as it may fix, postpone inquiring into a complaint under this section until the difference has been dealt with in accordance with such arrangement.
(14) The Board shall not inquire into a complaint made by a trade union, council of trade unions, employer or employers' organization that has entered into a collective agreement that contains a provision requiring the reference of any difference between them arising out of work assignment to a tribunal mutually selected by them with respect to any difference as to work assignment that can be resolved under the collective agreement, and such trade union, council of trade unions, employer or employers' organization shall do or abstain from doing anything required of it by the decision of such tribunal.
Counsel for the Boilermakers contended that the Board should defer consideration of the complaint under section 8 1(13) in that the United Association had not followed the procedure for settling jurisdictional disputes set out in an agreement entered into between the international parent bodies of the two unions. Counsel for the United Association contended that the procedure had in fact been followed and subsequent to the hearing he filed certain material which, on its face, tends to support this contention. Whatever the truth of the matter, we are satisfied that we should not postpone inquiring into the complaint due to the agreement between the two international unions. Section 81(13) of the Act indicates that the Board should defer consideration of a section 81 complaint so as to allow a work assignment dispute to be settled in accordance with a private arrangement only where the employer is party to the arrangement. There is nothing before us to indicate that Dominion Bridge is party to the arrangement between the two international unions, and accordingly we decline to postpone consideration of the complaint on this basis.
Counsel for the Boilermakers further contended that the Board should not inquire into the complaint in that both of the relevant collective agreements contain a provision requiring the reference of work assignment disputes to the Impartial Jurisdictional Disputes Board for the Construction Industry ("the IJDB"). The relevant articles in the collective agreement binding on Dominion Bridge and the Boilermakers are as follows:
10.3 In the event that a jurisdictional dispute arises over a work assignment, the Employer will make an assignment for the work to be done. If any Union or Unions disagree with such a work assignment, the parties will settle such jurisdictional dispute in accordance with procedure as outlined by the Impartial Jurisdictional Disputes Board for the Construction Industry of the Building Trades Department, AFL—CIO.
10.4 In the event that a jurisdictional dispute cannot be settled on a local basis by the Unions involved, it shall be submitted to the International Unions involved for settlement without permitting it to interfere in any way with the progress of the work at any time. In the event the dispute is not settled by the International Unions involved, it shall then be submitted to the Impartial Jurisdictional Disputes Board for the Construction Industry for resolution. Those Unions and Employers involved shall advise the Council and EPSCA respectively, in writing, of an intent to submit a jurisdictional dispute to the impartial Jurisdictional Disputes Board and will identify the work in question. The decision of the Impartial Jurisdictional Disputes Board will be final and binding to the parties to this Agreement.
10.5 EPSCA shall have direct recourse to the Impartial Jurisdictional Disputes Board for the Construction Industry when the Impartial Jurisdictional Disputes Board for the Construction Industry has under its consideration a dispute involving the assignment of work being done by employees who are covered by this Agreement.
10.6 In the event that the Impartial Jurisdictional Disputes Board for the Construction Industry fails to render a decision within sixty (60) days of the disputed assignment, EPSCA shall have recourse to the Ontario Labour Relations Board for a decision.
The relevant articles in the collective agreement binding on Dominion Bridge and Local 527 of the United Association are as follows:
6.2 In recognition of the Union's jurisdictional claim, it is understood that the assignment of work and the settlement of jurisdictional disputes with other Building Trades organizations shall be adjusted in accordance with the procedure established by the Impartial Jurisdictional Disputes Board, or any successor agency of the Building and Construction Trades Department. When a jurisdictional dispute exists between unions and upon requests by the United Association, the Employer shall furnish the U.A. Director of Canadian Affairs a signed letter from a duly authorized official of the company on Employer stationery, stating whether or not the Union was employed on specific types of work on a given project. The Employer agrees to consider evidence of established practices within the industry when making jurisdictional assignments.
6.4 The International Representative of the Union will advise the Association in writing of his intent to submit a jurisdictional dispute to the Impartial Jurisdictional Disputes Board and will identify in detail the work in question. The decision of the Impartial Jurisdictional Disputes Board will be final and binding to the parties to this Agreement.
6.6 In the event that the Impartial Jurisdictional Disputes Board for the Construction Industry fails to render a decision within sixty (60) days of the disputed assignment, the Association and the Union shall have recourse to the Ontario Labour Relations Board for a decision.
Counsel for the United Association contended that the Board should not require that the work assignment dispute in issue be submitted to the LJDB in that it was his understanding that the IJDB had ceased to operate, although he conceded that he had no concrete evidence to support this assertion. Counsel for the Boilermakers did not accept the contention that the IJDB had ceased to operate, and took the position that the United Association was required to at least attempt to bring the matter before the IJDB.
We are well aware of the fact that the IJDB has had a somewhat checkered history in recent years. However, we have no evidence before us which would establish that the body has actually ceased to operate. In that the parties to this dispute voluntarily agreed in their collective agreements to refer any jurisdictional disputes to the IJDB, in our view, they ought to be required to at least try to have this dispute dealt with by that body. In the event that the IJDB is no longer operational, or if it fails to render a timely decision, then section 8 1(14) might not apply in which case the Board would have jurisdiction to entertain this complaint. See: Ontario Hydro, [1979] OLRB Rep. Feb. 124. In these circumstances, the Board postpones entering into the inquiry of this complaint pursuant to section 81(13) of The Labour Relations Act so as to allow this matter to be referred to the Impartial Jurisdictional Disputes Board for the Construction Industry.