[1982] OLRB Rep. January 79
0755-80-M; 0876-80-M; 0940-80-M 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, Complainant, v. Napev Construction Limited, Respondent.
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members J. Wilson and O. Hodges.
APPEARANCES: D. J. Wray and M. Whelan for the applicant; S. McCormack, B. Pollock and P. Shichkov for the respondent.
DECISION OF THE BOARD; January 18, 1982
These are three grievances filed under section 124 of the Labour Relations A ct. The complaints concern the respondent's hiring practices on certain projects in which it was engaged in the summer of 1980. The complainant contends that certain work should have been done by its members and that the subcontracting of that work to subcontractors not in contractual relations with the Carpenters' union, constitutes a breach of the collective agreement between the complainant and the respondent. The complainant seeks compensation for its members along the lines discussed by the Court of Appeal in Blouin Drywall Contractors Limited v. United Brotherhood of Carpenters and Joiners of America, Local 1486 (1975), 8 O.R. (2d) 103. The complainant will be referred to as "the union", and the respondent will be referred to as "Napev".
These proceedings were commenced by the union in mid-summer of 1980, shortly after it discovered that the formwork on two of Napev's projects was not being done by carpenters. In accordance with its usual practice, the Board appointed a Labour Relations Officer to meet with the parties and attempt to effect a settlement of the matters in dispute between them. The case came on for a hearing in early September. At that hearing, both parties addressed what was characterized by Napev as a "preliminary issue", namely, that the case involved a jurisdictional dispute and that the Board should defer any consideration of whether there had been a breach of Napev's collective agreement until the jurisdictional dispute question had been resolved pursuant to section 91 of the Act.
At the hearing in September, the facts were not as clear and complete as they might be, although the basic situation was not in dispute. Neither party sought to lead evidence, and both parties requested the opportunity to make written submissions. Thereafter, however, the Board was advised that the parties were continuing their settlement efforts and that it should postpone issuance of its preliminary decision until those settlement efforts were exhausted. No doubt the parties were aware that even if Napev's submissions were accepted and the Board deferred to the jurisdictional dispute mechanism, that procedure would not necessarily absolve Napev of liability for a contractual breach. The parties were also undoubtedly aware of the length, complexity, and resulting costs of a jurisdictional dispute proceeding and the real possibility of exacerbating relationships with the various unions which would necessarily be involved. In any event, the parties' settlement efforts came to naught, and in the spring of 1981, the Board was so advised. Unfortunately, the death of Board Member G. Armstrong prior to the issuance of its decision generated further delay and uncertainty which was only resolved in the fall of 1981 when the parties agreed to substitute Board Member J. Wilson as the employer nominee. The decision of the Board, thus reconstituted, follows.
The work in question is the concrete forming performed at two "IC I projects" in the City of Mississauga" the South Common Community Centre, and the Meadowvale Secondary School. Napev did not use its own forces to perform this work, nor did it engage subcontractors in contractual relations with the Carpenters' union. The formwork at the South Common Community Centre was subcontracted to Hi Rise Forming Limited ("Hi Rise"), which used members of Local 183 of the Labourers' International Union to do it. The concrete formwork at the Meadowvale Secondary School was subcontracted to Halton Forming Limited ("Halton") which also performed the work using members of Local 183 of the Labourers' International Union. In both cases, the work was subcontracted shortly after the project began pursuant to earlier discussion with Hi Rise and Halton.
While it is clear that the concrete forming work was done by members of Labourers' Local 183, it is by no means clear what contractual relationship Hi Rise and Halton have with that union. Hi Rise and Halton, of course, were not parties to the present proceedings, nor did either party fully canvass this issue. We make this observation because both Locals 506 and 183 of the Labourers' International Union do formwork, but it is Local 506, the so-called "ICI Local" which one would generally expect to find doing that kind of work on an ICI project in Mississauga. We are also aware that many forming companies are bound by a separate agreement with Local 183 (i.e., not the province-wide ICI agreement) which might not even have any application to this ICI project. Both factors may be relevant to the alleged jurisdictional dispute and to the preliminary argument raised by Napev (see infra).
The relevant provisions of the Labour Relations Act are as follows:
91-(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 trade, craft or 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 or any of them or any person shall do or refrain from doing with respect to the assignment of work.
(18) Where an employer is a party to or is bound by two or more collective agreements and it appears that the description of the bargaining unit is one of such agreements conflicts with the description of the bargaining unit in the other or another of such agreements, the Board may, upon the application of the employer or any of the trade unions concerned, alter the description of the bargaining units in any such agreement as it considers proper, and the agreement or agreements shall be deemed to have been altered accordingly.
The first branch of Napev's argument is that the filing of a complaint under section 124 alleging a breach of the Carpenters' collective agreement, in itself, precipitates a jurisdictional dispute within the meaning of section 9 1(1) of the Act. Napev argues that the grievances, in effect, are a claim for the work in question, even though there has been no actual demand of Napev either that it assign the work to carpenters, or require Hi rise and Halton to assign the work to carpenters, or enter into new subcontracts with subcontractors in contractual relations with the Carpenters' union. It is conceded that the grievances themselves merely seek damages for a breach of contract, and that there is no request for an alteration of the work assignment, nor has any member or official of the union ever made such request. Napev contends, however, that the grievances raise the possibility that it might have to "pay twice" for the concrete forming work on these two projects (i.e., to the subcontractors who actually did it and, by way of damages, to the Carpenters~ union whose members, it is claimed, should have done it), and that this spectre of potential liability should be equated with an express request for the work by the Carpenters' union although it must be noted that Napev did not in fact approach Halton or Hi Rise or seek to effect a reassignment of the work.
Napev further argues that it should be regarded as "the employer" to whom a work assignment request is made, even though there is no common law employer-employee relationship between Napev and the persons by whom the work was done. Napev argues that it should be treated as "the employer" for the purpose of section 91 because (subject to the terms of the subcontract and the liability any breach of the subcontract might entail) it has the ultimate authority to effect a reassignment of the work either to carpenters in its own employ or to a compatible carpentry subcontractor. But, it is conceded in the instant case that Napev did not in fact make any attempt to effect a reassignment of the work, nor did it respond to the alleged request by actually filing a jurisdictional dispute although it did plead in its response to the section 124 proceeding that the matter should be dealt with under section 91. In the circumstances therefore, even if one treats the grievances as a work assignment request, Napev cannot be regarded as an "agent" of the Carpenters' union transmitting that request to the "real employer". The constructive agency notion referred to in some of the Board's cases can have no application here.
The second branch of Napev's argument involves what it claims are conflicting contractual obligations by which it is bound. The company is bound by both the Labourers' and Carpenters' province-wide ICI agreements. These agreements, it is submitted, both contain "no subcontracting" clauses in respect of the work covered by them. But, argues Napev, the work jurisdiction overlaps, so that the company is inevitably faced with a "Hobson's choice". If it subcontracted the work to a subcontractor with contractual relations with the Carpenters' union, the Labourers would file a grievance. If, as it did, it subcontracted to firms with a relationship with the Labourers' union, the Carpenters would file a grievance. This, argues Napev, is precisely the kind of dilemma which section 9 1(18) was designed to resolve. (We might note again, however, in respect of the province-wide Labourers' agreement, that in Board Area 8 it is the work jurisdiction of Local 506 which is predominantly involved and here it was members of Local 183 who did the work — perhaps pursuant to a different agreement altogether. Neither Napev nor the union actually filed a copy of the Labourers' agreements.)
The union asserts that the essential preconditions for a jurisdictional dispute under section 9 1(1) have not been met. There has been no request for an assignment or reassignment of the work, either directly or indirectly. Napev cannot be regarded as the union's agent and, in any event, did not attempt to effect a reassignment of the work to carpenters. Nor did Napev file a jurisdictional dispute to resolve any question concerning the propriety of its subcontracting arrangements. If it had really been concerned with having to pay twice, it would have acted promptly. The union argues further that Napev is not the employer of the individuals actually doing the work. There has been no request for a reassignment of work made of Halton or Hi rise, therefore section 91(1) can have no application. The union points out that Napev's argument on this issue was carefully considered and rejected in an earlier case in which the company itself was involved — see: Napev Construction Limited, [1980] OLRB Rep. Feb. 264. The union relies upon both the result and the legal analysis in that case, and argues that the Board should not depart from its earlier reasoning.
II. With respect to the alleged conflicting collective agreement, the union argues that no such conflict exists, and reserves its right to lead evidence and make argument on that issue. And, insofar as Local 183 is concerned and that is the only local of the Labourers' union involved — the union asserts that the province-wide Labourers' agreement gives it no right with respect to form work in Board Area 8. There can be no jurisdictional dispute between the Carpenters and Local 183 on these two ICI projects. Even if there were overlapping work jurisdictions — which the union denies — it would only be Labourers' Local 506 with which a jurisdictional dispute could arise. In the circumstances, argues the union, how can Napev rely on a subcontracting arrangement to an employer using members of Local 183 (which in itself may be a breach by Napev of the Labourers' province-wide ICI collective agreement) to sustain its claim that there is a jurisdictional dispute which must be resolved before dealing with the alleged breach of the Carpenters' collective agreement?
We have carefully considered the submissions of the parties and we are not, at this time and in the circumstances of this case, prepared to accede to Napev's request and reconsider the analysis adopted by the Board in Napev, supra. Nor do we think that the expeditious resolution of alleged contractual violations should be derailed by the mere assertion by a respondent employer that there is a jurisdictional dispute or that there are conflicting work jurisdiction provisions in the relevant province-wide collective agreements. A respondent should be in a position to establish at least a prima facie case that there is a jurisdictional dispute before the Board defers to that procedure. To hold otherwise would invite parties to raise unsubstantiated preliminary objections for the purposes of "buying time" — thereby undermining the very purpose which section 124 was designed to achieve.
We have some considerable doubt as to whether the respondent in the instant case has met this standard and also whether a jurisdictional dispute proceeding would materially affect the result of the section 124 application. But the difficulty is that the argument with respect to section 9 1(18) is a novel one involving, initially at least, a close analysis of the allegedly conflicting collective agreements — yet neither party addressed this matter in any detailed way. The Labourers' agreement was not even filed with the Board. Napev simply asserted that there was a conflict; while the union reserved its right to lead evidence and argument with respect to that issue. There is also some question as to whether section 9 1(18) operates independently of section 91(1) (the provision seems to duplicate, to some extent, section 91(15)) or the effect, if any, which a determination under section 91(18) might have on a section 124 proceeding. The resolution of most of these questions, of course, would most appropriately be accomplished by having all parties to the allegedly conflicting agreements present, and this in turn could best be accomplished pursuant to section 91. Accordingly, the Board is persuaded in the circumstances that it should adjourn the section 124 proceedings so that Napev may file a jurisdictional dispute pursuant to section 91 of the Act. Napev will have twenty-one days from the release of this decision to file a jurisdictional dispute. Given the possible interrelationship between the merits of the section 124 case and the section 91 remedy, if Napev files a jurisdictional dispute the panel seized with the jurisdictional dispute issue is the more appropriate forum for resolving all aspects of the case. Accordingly, we have restricted this decision solely to the preliminary issue raised by the parties.