Pre-Con Company v. Carpenters' District Council of Toronto and Vicinity

1422-80-JD Pre-Con Company, A Division of St. Marys Cement Limited, Complainant, v. Carpenters' District Council of Toronto and Vicinity on behalf of Locals 27, 666, 681, 1133,1747,1963,1304,3227 and 3233, United Brotherhood of Carpenters and Joiners of America and Harbridge & Cross Limited, Respondent, v. Labourer's International Union of North America, Ontario Provincial District Council on behalf of its affiliated Local Unions 183, 247, 491, 493, 506, 527, 597, 607, 625, 749, 837, 1036, 1059 and 1081, Intervener #1, v. Toronto Construction Association, General Contractors Section, Intervener #2

BEFORE: D. E. Franks, Vice-Chairman, and Board Members H. J. F. Ade and O. Hodges.

APPEARANCES: G. Grossman, L. Angelantoni and J. W. O'Rioridan for the complainant; Douglas J. Wray, Fred Leach and Tony Grisolia for the Carpenters' District Council of Toronto and Vicinity; S. C. Bernardo and Murray Cross for Harbridge & Cross Limited; B. Fishbein. T. Neil and P. Hitchen for intervener #1; 5. C. Bernardo and Brian Foote for intervener #2.

DECISION OF THE BOARD; July 8, 1981

1. This is a complaint made under section 81 of The Labour Relations Act. It arises as a result of a previous decision of another panel of this Board in a case between the respondent, The Carpenters' District Council of Toronto and Vicinity on behalf of Locals 27, 666, 681, 1133, 1747, 1963, 1304, 3227 and 3233, United Brotherhood of Carpenters and Jojners of America (hereinafter referred to as the "Carpenters Union"), and the respondent, Harbridge and Cross Limited in Board File No. 132 l-80-M unreported. That case was a referral of a grievance under section 1 12a of the Act. The panel of the Board adjourned the referral pending a determination of a section 81 complaint dealing with the issue raised in the section 1 12a referral. As a consequence of that adjournment the instant complaint was filed. The matter came up for hearing and at the hearing the respondent, Carpenters Union, in the present application challenged the jurisdiction of this Board under section 81.

2. Before dealing with the evidence and the argument of the various parties as to whether there is a complaint under section 81, it is necessary to set out some general background concerning the present dispute. The job site in question is a construction project for Metal Improvements Company located in the Cabado Court in the City of Brampton. On that job, Harbridge and Cross Limited is the general contractor. In the course of the construction of the project, Harbridge and Cross let a contract for the supply and installation of a product known as flexwall to the complainant Pre-Con Company. There are several points to note in the contractual arrangements between Harbridge and Cross and Pre-Con. First, that the contract was for the complete installation of flexwall, which included amongst other things the caulking of joints between the precast panels. Secondly, the contract contained a labour compatibility clause, i.e. a clause in which Pre-Con undertakes to use compatible labour forces with those on the job site. Further, it also contains a "save Harmless" clause whereby Pre-Con undertakes to save harmless Harbridge and Cross in the event that Pre-Con, in the performance of its contract, damages the interests of Harbridge and Cross.

3. Harbridge and Cross as a general contractor is bound by the provincial agreements for Carpenters and for Labourers contemplated by sections 125 to 136 of The Labour Relations Act. The Pre-Con Company is also bound by a provincial agreement, namely, the provincial agreement covering the installation of precast concrete for which the Labourers International Union of North America and the Provincial Council is the designated employee bargaining agency and the Ontario Precast Manufacturers Association is the designated employer bargaining agency. Also part of this background is the fact that the Carpenters Union has no collective bargaining relationship with Pre-Con.

4. Although the issue of the extent of the work in dispute was not settled at the hearing in this matter, the Carpenters in their previous grievance were claiming damages from Harbridge and Cross for a violation of a subcontracting clause in the provincial agreement with respect to caulking work. The complainant in the present case lists the work in dispute as virtually all work in relation to the installation of precast concrete components. It is clear on the evidence which the Board heard, that the concern of the Carpenters Union which gives rise to this matter is solely in relation to caulking of the various components. At the hearing, counsel agreed to limit the present issue to whether or not the Board has jurisdiction to entertain this complaint under section 81. Counsel for the complainant, counsel for Harbridge and Cross, and counsel for the Labourers Union took the position that the Board has the jurisdiction to entertain this complaint. It was only counsel for the respondent, Carpenters Union, which took the position that the Board did not have jurisdiction to entertain the complaint.

5. The respondent, Carpenters Union, have thus raised a number of objections to the jurisdiction of the Board to entertain a complaint under section 8 1(1). Since this matter was referred to the Board under section 1 12a and that referral has deferred to this section 81 — the present preliminary matter calls into issue the relationship between the section 11 2a grievance and the jurisdiction of the Board under section 8 1(1).

6. As indicated above, Harbridge and Cross is the general contractor of the job site in question. By a standard form of construction contract between a contractor and a sub-contractor dated February 14, 1980, Harbridge and Cross sub-contracted to Pre-Con Company the complete work of precast concrete wall panels in accordance with certain contract documents. That contract contains in Appendix A the following two paragraphs:

"Sub-Contractor agrees to hold the said Contractor harmless from and against any and all claims, losses, demands, suits or actions, etc. which now or may hereafter be brought against the said Contractor arising directly or indirectly out of or from the operations performed by or on behalf of the Sub-Contractor.

Sub-Contractor certifies that he has an appropriate agreement with the local trade union and will cause no disharmony on the job with the tradesmen used."

7. The actual work on the sub-contract started the last week in August, the week before Labour Day. Apparently the contract took only two weeks to perform the erection of the precast concrete.

8. On about August 27th the business agent for the Carpenters Union, Mr. Grisolia, checked the job site. It appears that he had discussions with a superintendent for Harbridge and Cross and asked who was doing the caulking on the precast panels. He was informed that Pre-Con had the contract to do the work, however, the superintendent didn't know who was actually performing the work that is whether it was Pre-Con itself or a sub of Pre-Con. Grisolia and Basso spoke on the phone on either the 28th or 29th of August. At this point there is some discrepancy in the evidence of Basso and Grisolia. It appears that Dominion Caulking was the subject of discussion. Grisolia apparently asked Basso if Dominion Caulking bid on the caulking work. He was told that they had, but that the bid was not accepted because the price was too high. However, it is common to both accounts of the conversation that Grisolia wanted Basso to have Dominion Caulking do the job. What is in conflict in their evidence is that Grisolia denies asking Basso to have Pre-Con hire carpenters to do the work. Grisolia denies having asked Basso to hire Carpenters. On the other hand, Basso was quite clear in his evidence that Grisolia wanted Basso to hire carpenters if the work was not to be let to Dominion Caulking.

9. As a consequence of this discussion, Basso filed a grievance against Harbridge and Cross which is dated August, 29, 1980, alleging that the grievance arose on August 27, 1980. and the nature of the grievance is as follows:

"Carpentry work sub-contracted to a company not in contractural agreement with this Council. Caulking on precast cement. Job site at Cabado Court."

10. As a consequence of the grievance being filed against Harbridge and Cross by the Carpenters, a meeting was arranged for September 9th under the auspices of the General Contractors Section of the Toronto Construction Association. Present at that meeting were Mr. Edward Burrows of the General Contractors Section of the TCA, Mr. Grisolia and Mr. Leach of the Carpenters Union and Mr. Cross of Harbridge and Cross. It appears that a Mr. Hitchen of the Labourers Union attended at the TCA offices wanting to participate in the meeting. However, Messrs. Leach and Grisolia refused to meet with him. At that meeting it appears that Mr. Leach took the position that the Carpenters had recently lost a lot of caulking work, and they considered it part of their jurisdiction and they wanted it back. Mr. Cross took the position that he had simply let a package in the normal commercial way, and that caulking was part of that package. Mr. Leach also said that he was going to put pressure on Pre-Con to regain lost work.

11. Subsequent to the meeting at the TCA offices, a grievance was referred to the Board on September 13th. As a consequence of the grievance proceedings, the following letter was sent by Harbridge and Cross to Pre-Con:

"With reference to our contract with yourselves we would remind you of our requirement that the labour employed by Pre-Con on the jobsite at M.I.C. on Cabado Court in Bramalea must comply with our collective agreements.

Because of a grievance lodged by the Carpenters' District Council, under the terms of our agreement with the Carpenters we are hereby required to direct you to employ carpenters on caulking associated with precast installation on the M.I.C., Cabado Court jobsite."

12. The grievance referred to the Board became Board File No. 132 l-80-M between the Caprenters Union as the applicant and Harbridge and Cross as the respondent, with three interveners. By a decision dated October21, 1980, a different panel of the Board deferred to an application under section 81 of the Act, which resulted in the present complaint.

13. There remains one further fact to be dealt with. As noted above, Harbridge and Cross, the general contractor, is a party to the provincial agreement with the Labourers International Union of North America. That collective agreement contains a specific schedule relating to Local 506 in Toronto and contains as Article 10:01 the following terms:

"The terms and conditions of the Collective Agreement between the Local and various contractors shall apply to post-tensioning, pre-stressing, diamond concrete saw cutting, cutting, corning and drilling and the erection and finishing of precast concrete products."

14. The evidence of Brian Foote was that this provision had been part of a provincial agreement concerning Labourers, negotiated in 1978 and in 1980, and that it was a consequence of a demand by the union that any contractor bound by the Labourers provincial agreement would utilize the special agreements referred to in that clause. The reference to precast concrete products, in turn being a reference to the provincial agreement for precast labourers, negotiated by the Ontario Precast Concrete Manufacturers Association, and the designated bargaining agency of the Labourers Union.

15. Before dealing in detail with the evidence heard by the Board we would now like to set out the arguments by which counsel for the respondent, Carpenters Union, claims that there is no jurisdiction under section 81 for the Board to entertain this complaint:

"(a) The Carpenters grievance against Harbridge and Cross is for a violation of a collective agreement and Harbridge and Cross is not the employer under section 81(1). It is Pre-Con that is the employer and the Carpenters grievance is not against Pre-Con,

(b) There is no evidence that the Carpenters were requiring Pre-Con to assign work to members of the Carpenters Union,

(c) Harbridge and Cross cannot be said to have acted as an agent for the Carpenters in its dealings with Pre-Con."

16. Turning to the Carpenters first argument that it is Pre-Con that is the employer in the present case and that their grievance was originally against Harbridge and Cross, thus, Pre-Con is not "the employer referred to in section 81". While it may be that the grievance was filed against Harbridge and Cross, it is clear on the evidence that Harbridge and Cross in turn is bound by two collective agreements, (that relating to Carpenters and that relating to Labourers), and that these collective agreements have binding subcontracting clauses. Further, the Labourers collective agreement in the Toronto area has a referral to the precast provincial collective agreement. On their face then it appears that Harbridge and Cross was thus bound by two conflicting provincial collective agreements, in that both agreements require Harbridge and Cross to subcontract, for instance, caulking of precast panels in a certain way. In its subcontract to Pre-Con, Harbridge and Cross specifically protected itself in the manner set out in paragraph 7 above, and as indicated in paragraph 12 Harbridge and Cross has emphasized its contractual right vis-a-vis Pre-Con. This is turn puts Pre-Con into a precarious position. Pre-Con has assigned the work in question in accordance with its collective agreement. It has been put on notice by Harbridge and Cross that it may be in violation of its subcontract terms, particularly in relation to the liability of Harbridge and Cross in the section 11 2a grievance filed by the Carpenters. It is in that capacity that Pre-Con is the employer making the assignment under section 8 1(1). This is sufficient to distinguish the present case from the Napev case [1980] OLRB Rep. Feb. 247, where there was no evidence that Napev the general contractor had attempted to enforce any rights against Venice Masonry, the actual employer in that complaint. In that case the Board held that a complaint did not lie against Napev under section 81(1). Here, however, we have the actual subcontractor bringing the complaint and further in the face of a claim for indemnity by Harbridge and Cross against Pre-Con.

17. We turn now to the second and third arguments made by the Carpenters which is that the Carpenters are not directly requiring Pre-Con to assign work to the members of the Carpenters Union, nor are they indirectly through Harbridge and Cross as their agent, requiring Pre-Con to assign the work to members of the Carpenters Union. While there may have been evidence that the Carpenters were directly requiring Pre-Con to assign work to members of the Carpenters Union through the conduct of Mr. Grisolia, it is not necessary for us to make a finding in this regard. We are clearly of the view that the Carpenters through their grievance against Harbridge and Cross intended to put "pressure" on Pre-Con to assign such work to Carpenters. Clearly, in filing the grievance against Harbridge and Cross, the Carpenters are seeking the assignment of certain work, and it is naive to suggest that Harbridge and Cross would sit idly by and not transfer this request to Pre-Con. Harbridge and Cross' transference of this request to Pre-Con through its letter referred to in paragraph 11 above, was applying precisely the kind of "pressure" that the Carpenters wanted applied on Pre-Con. In that sense, Harbridge and Cross is acting as the "agent" making a requirement on the Carpenters behalf, directly to Pre-Con. This is precisely the manner in which Pigott Construction acted as the agent for the Ironworkers in the Beer Precast case, (Regina v. Ontario Labour Relations Board, Ex parte International Association of Bridge, structural & Ornamental Iron Workers, Local 736 [1969] 1 0. R. 405), in which the Ontario Supreme Court found that Pigott acted as agent for the Ironworkers within the meaning of section 81 of the Act.

18. For the foregoing reasons we are prepared to find, on the facts, that the Carpenters Union have through their grievance against Harbridge and Cross required the complainant, Pre-Con, to assign work to the Carpenters Union, and thus, the Board has jurisdiction to entertain this complaint within the meaning of section 8 1(1) of the Act.

19. As noted earlier, this case raises certain difficult matters in the arbitration of grievances under section 1 12a of the Act, where such cases involve a jurisdictional dispute. Clearly, not all violations of a subcontracting provision in a collective agreement give rise to jurisdictional disputes, and indeed, to defer to section 81 complaints in section 1 12a proceedings in every case where a subcontracting clause is raised as the subject matter of the grievance would result in the denial of the intended expedition set out in section 1 12a. On the other hand, the Board administers both section 1 12a and section 81 and as a matter of fairness will not proceed with an arbitration under section 11 2a where the matter in dispute is clearly a jurisdictional dispute. To do otherwise would be a finding of protecting the jurisdictional claim of one union in the absence of the other competing trade union. On the other hand, a section 81 complaint only lies when certain conditions have been met, and unless those conditions are met, it is clear from both Board and Court jurisprudence that the Board cannot entertain the complaint.

20. Of particular concern in the present dispute is the matter of conflicting provincial collective agreements binding upon a general contractor. We are of the view that where the contractor is bound by such completely conflicting collective agreements, and an attempt is made to enforce those agreements, that that is prima facie a jurisdictional dispute. This is particularly so in the present case where the general contractor bound by such conflicting provincial agreements puts pressure on the subcontractor actually employing the men. We are prepared to view that as "requiring" the subcontractor within the meaning of section 81(1). Not only are we satisfied that the Board has the jurisdiction to entertain such complaints under section 81, but such a procedure affords all of the affected parties an opportunity to protect their interests, and section 81 gives the Board the broad powers to develop an appropriate labour relations remedy. In the circumstances the Registrar is directed to list this matter for continuation of hearing.