[1982] OLRB Rep. April 573
2413-81-M The Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen Local #12 - Kitchener, Applicant, v. Ellis Don Limited, Respondent
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. A. Ronson and O. Hodges.
APPEARANCES: B. Chercover, B. Strickland and D. DeMonte for the applicant; no one for the respondent.
DECISION OF THE BOARD: April 30, 1982
This is the referral of a grievance to the Board pursuant to the provisions of section 124 of the Labour Relations Act. The Board is satisfied that the necessary preliminary steps have been taken to give the Board jurisdiction in this matter.
The respondent Ellis Don Limited and also the Painters' Union Local 1824, although having been given notice of the hearing by the Board, and having attended a prior meeting on February 24, 1982 convened by a Labour Relations Officer of the Board in connection with the same matter, failed to appear at the hearing. The Board accordingly proceeded to receive the evidence and submissions of the applicant.
Evidence in support of the grievance was given by Mr. Brian Strickland, the applicant's Kitchener Business Representative since 1967. Mr. Strickland testified that the respondent, Ellis Don Limited, has long had a collective bargaining relationship with the applicant, and is currently bound by the provincial collective agreement covering construction work in the industrial, commercial and institutional sector. A booklet copy of that collective agreement was produced to the Board, and Ellis Don appears on the list of contractors in Schedule A to that agreement. Mr. Strickland learned of a YMCA building project in the City of Kitchener, involving the construction of four racquet-ball courts, and attended at the job site to inquire into the assignment of work. There he spoke with a foreman of the subcontractor beginning the work, Northwest Plastering Limited. The applicant has no collective bargaining relationship with that company. Mr. Strickland asked the foreman if he was aware of the applicant's subcontracting clause, and the foreman replied that he was not. The foreman added that Northwest Plastering had a collective agreement with the Painters' Union in Toronto. Mr. Strickland testified that there was no one present on the job representing the general contractor, Ellis Don Limited, and that he asked the foreman of Northwest Plastering to employ members of the applicant union on this job. When Mr. Strickland returned to the job site the next day, he was advised by the foreman that he was willing to employ one man from the applicant union, but at the same time told Mr. Strickland that he was to call the Painters' business agent, Sergio Panterotto. The member of the applicant union did in fact work one day on the job, but Mr. Strickland then received a visit from the Local Painters' Union representative, who indicated that this arrangement was not satisfactory. No member of the applicant union was employed on the job thereafter. Mr. Strickland filed a grievance with Ellis Don, and further discussions ensued involving Mr. Strickland, representatives of the Painters' Union, Northwest Plastering, and Mr. Peter Van Cook, Executive Assistant to the President of Ellis Don Limited. Mr. Van Cook took the position that this was a jurisdictional dispute, and no change in favour of the applicant was made in the assignment of work. Mr. Strickland personally attended at the job site from time to time during the period February 15th to March 4th, 1982 inclusive, and was able to observe the work being performed by employees from Northwest Plastering who were not members of the applicant union.
The Board at the conclusion of the hearing as usual reserved its decision, essentially to review the evidence with respect to quantum of damages. Prior to the Board's decision being formally issued, however, the respondent Ellis Don, through its solicitor, wrote to the Board requesting that the matter be reopened and scheduled for a further hearing, on the basis that Mr. Van Cook of the respondent had left the Labour Relations Officer's meeting convened on February 24, 1982, with the erroneous impression that the matter had been settled. The respondent contends that it was clear at the Officer's meeting that the issue underlying the grievance was a jurisdictional dispute between the applicant and the Painters' Union, and the respondent's. Mr. Van Cook took it from that that the grievance, insofar as the respondent itself was affected, had been settled.
While not strictly a matter of "reconsideration", the results of the Board hearing held on March 8th were such that it is appropriate to view the issue as if it were, and the parties to the proceedings have argued the point on that basis. The applicant takes the position that the matter is now final, and relies on the Board's well-established practice with respect to requests for reconsideration, reflected, for example, in the case of Canadian Union of General Employees, [1975] OLRB Rep. April 320, at paragraph 11:
Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representations or objections not already considered by the Board tht he had no opportunity to raise previously. (International Nickel Co. of Canada Ltd. [1963] OLRB Rep. 234, 64 CLLC ¶1 15,493 (Ont. H.C.); Detroit River Construction Case(1962) CLLC ¶1 16,260). Both legs of this principle depend upon the applicant having been diligent and therefore having had no opportunity to draw the Board's attention to the object of its concern.
Here the respondent was content to let the matter rest on the assumption that the real issue to be litigated was the competing jurisdictional claims of the two trade unions. The respondent, however, took no steps to ensure that the jurisdictional dispute was being processed to litigation by any party, including itself, or to ensure by formal steps that the hearing scheduled for March 8th had been cancelled. Such manner of proceeding clearly falls short of any "reasonable diligence" standard which the Board has articulated. To protect the settlement process as a whole, the Board is particularly reluctant to place any weight on allegations of statements made by or in the presence of a Labour Relations Officer, whether such statements would be technically privileged or not, and a party faced with formal notice of a Board hearing must bear the burden of either appearing at that hearing to ascertain its status, or of confirming in a formal way that the hearing will not take place. If the respondent had any concern with its liablility in this matter, the time to consult with its solicitor was before the Board's scheduled hearing, and not after. To the extent, therefore, that any significant prejudice must befall a party as a result of the occurrences in these proceedings, that prejudice must fall upon the respondent, and the applicant is entitled to the benefit of the evidence and representations which it placed before the Board at the hearing it attended on March 8th.
Counsel for the respondent, however, points out that it is the Board's normal practice, when satisfied that the true issue underlying a grievance referred to the Board under section 124 of the Act is a jurisdictional dispute, to defer a final determination of the grievance until the parties have had an opportunity to litigate the merits of the jurisdictional dispute. In the circumstances of this case, where the respondent at all times prior to the scheduled date for hearing actively participated in the grievance process, including attendance at the meeting convened by the Board's Labour Relations Officer, and where, having made its position clear to the applicant from the outset that its defence to the apparent violation of the collective agreement was its reliance on the competing jurisdictional claim of another trade union, the respondent notified the Board within two (2) days of its error in not attending the Board hearing, it is appropriate to weigh the comparative prejudice to either party in dealing with the respondent's request.
The applicant is entitled to the benefits of the time and expense it spent at the Board on March 8th, and ought not to be forced to re-litigate the issues so determined by the Board because of a lack of diligence on the part of the respondent. The Board finds, on the uncontradicted evidence of the applicant's witness, Mr. Strickland:
(1) that the respondent Ellis Don Limited is bound by the applicant's province-wide collective agreement covering construction work in the industrial, commercial and institutional sector;
(2) that as a result of a subcontract let by the respondent to a company by the name of Northwest Plastering, work covered by the aforesaid collective agreement involving 208 hours from February 15th to March 4th, 1982 inclusive, was performed at the YMCA site in Kitchener by members of Painters' Union Local 1824, rather than by members of the applicant, contrary to Article 1(c) of the aforesaid collective agreement;
(3) that the value of that work to the applicant and its members, pursuant to the terms of its collective agreement, is $3,296.80.
- The Board is satisfied, however, on the evidence which it has before it, that the applicant's claim does in fact involve a jurisdictional dispute between competing unions, of the kind which would have prompted the Board, had the respondent attended the hearing on March 8th, to have adjourned the proceedings at the respondent's request, pending an opportunity to litigate that jurisdictional dispute. The Board accordingly makes its findings of liability against the respondent under its collective agreement with the applicant, and any consequent direction to pay damages in accordance with that violation, contingent upon an opportunity being given to the respondent to have the jurisdictional dispute underlying this matter litigated before the Board. The Board will therefore permit a period of ten (10) days from the date of this decision for any party to these proceedings to file with the Board under section 91 a 'jurisdictional dispute" claim with respect to the work in dispute in the instant proceedings. Otherwise, the Board will proceed to finally dispose of this application of the basis of the material presently before it.```