Labourers' International Union of North America v. Ontario Hydro, 1982 CanLII 840

[1982] OLRB Rep. February 248

1786-81-JD Labourers' International Union of North America, and Labourers' International Union of North America, Local 1059, Complainants, v. Ontario Hydro, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527, Respondents.

BEFORE: Ian Springate, Vice-Chairman, and Board Members J. A. Ronson and H. Simon.

APPEARANCES: S. B. D. Wahl, L. Parker and G. Flook for the complainants; H. A. Beres ford for Ontario Hvdro; A. Ahee and T. Berry for United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527.

DECISION OF IAN SPRINGAGE, VICE-CHAIRMAN, AND BOARD MEMBER J.A. RONSON; February 19, 1982

1. This is a complaint under section 91 of the Labour Relations Act in which the Labourers' International Union of North America and Labourers' International Union of North America, Local 1059 (the "Labourers") are requesting that the Board issue a direction with respect to the assignment of certain work. It is the position of the respondents, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527 (the "U.A.") as well as Ontario Hydro, that in the circumstances present here the Board lacks jurisdiction to issue any direction under section 91.

2. Ontario Hydro is currently engaged in the construction of two generating stations in Bruce County ("Bruce"). The complaint concerns certain work (henceforth generally referred to as "the work in dispute") which the Labourers have described in the following terms:

All work in connection with the transport, set-up, operation, clean-up and dismantling [sic] of carbide or diamond bit concrete core drilling machines and vacuum systems, boring holes greater than one and seven eights inch in diameter in concrete structures to any required depth for the through passage of pipe ("the Work") at the Respondent, Ontario Hydro's projects known as Bruce Generating Station "A" and Brucing Generating Station "B", Bruce County, Ontario ("the Projects").

It should be noted that Ontario Hydro is engaged in the construction of another generating station at Pickering, where work similar to the work in dispute at Bruce is also being performed.

3. Members of the Labourers' union employed by Ontario Hydro at both Bruce and Pickering are covered by the terms of a collective agreement entered into between The Electrical Power Systems Construction Association and the Ontario Allied Construction Trades Council, of which the Labourers' union is a constituent member. Members of the U.A. employed by Ontario Hydro at Bruce and Pickering are covered by a collective agreement between The Electrical Power Systems Construction Association and the U.A. These collective agreements contain the following provisions respecting jurisdictional disputes:

For the Labourers

10.03 In the prevent 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 Jurisdiction Disputes Board for the Construction Industry of the Building Trades Department, AFL-CIO.

10.04 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.

10.05 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.

10.06 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.

For the U.A.

6.2 In recognition of the Union's jurisdictional claims, 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 request by the United Association, the Employer shall furnish the U.A. Director of Canada 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.

6.3 When there is a dispute as a result of a prejob mark-up, the Employer will make an assignment only after;

(i) evidence has been submitted by the unions involved within a time limit specified by the Employer;

(ii) all evidence submitted has been evaluated by the Employer.

A copy of such assignments shall be submitted to the U.S. Canadian Office. Where a local of the Union is in disagreement with an Employer's work assignment, the U.A. Canadian Office can submit the dispute in accordance with section 6.2 above and the Employer shall supply the U.A. Canadian Office with a copy of the evidence submitted by the other union)s— involved along with drawings and/or prints plus a description of the work or process in dispute from a qualified representative of the Employer when requested.

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.

6.5 There shall be no sit down or work stoppage because of jurisdictional disputes.

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.

4. The above-quoted provisions in the collective agreements are of some import due to the provisions of section 91(14) of the Act which both the U .A. and Ontario Hydro claim to be applicable to these proceedings. This section provides as follows:

91(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.

5. During or about 1970, Ontario Hydro assigned the work in dispute at Bruce to the Labourers, and it continued to do so until the events giving rise to these proceedings. Ontario Hydro also assigned the work in dispute at Pickering to the Labourers. In May of 1981, the U.A. laid claim to the work in dispute at Pickering, and to this end laid a formal claim to the work with the Impartial Jurisdictional Disputes Board for the Construction Industry (the "IJDB"). In a letter addressed to the General President of the Labourers' International, the General President of the U.A. International, and Ontario Hydro, Mr. Dale Witcraft, the Chairman of the IJDB, set out the IJDB's award as follows:

At its meeting May 28-29, 1981, the Impartial Jurisdictional Disputes Board considered the jurisdictional dispute between the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry and the Laborers International Union of North America over core boring of holes in concrete for pipe, Pickering Nuclear Plant project, Pickering Ontario Canada, Ontario Hydro contractor.

The Board voted to make the following job decision: The work in dispute is governed by the decision of record of May 5, 1926 and shall be assigned to plumbers and steamfitters (i.e. to members of the U.A.).

This action of the Board was predicated upon particular facts and evidence before it regarding this dispute and shall be effective on this particular job only.

The Board is a private organization formed to determine jurisdictional disputes between parties to the Plan for Settlement of Jurisdictional Disputes in the Construction Industry. In accord with Article VII, Section 4, of the Plan, employers which are bound by the Plan are requested to comply with this job decision.

6. On June 15, 1981, Ontario Hydro wrote to the IJDB requesting a re-hearing with respect to its assignment at Pickering. Mr. Witcraft replied to this request on June 23, 1981. The key portion of Mr. Witcraft's reply read as follows:

By direction of the Joint Administrative Committee Plan for the Settlement of Jurisdictional Disputes in the Construction Industry, no meetings of the Impartial Jurisdictional Disputes Board are presently scheduled. Accordingly, your request for a rehearing is denied.

7. Apparently on or about October 9, 1981, the U.A. requested the Ontario Hydro implement the IJDB Pickering award at Bruce. On October 14, 1981, Ontario Hydro's Personnel Officer at the Bruce site, Mr. J. Miller, denied the request, noting that the IJDB award stated that it was effective only on the Pickering job. Mr. Miller's view on the matter, however, was not shared by Mr. W. S. O'Neill, Ontario Hydro's Construction Labour Relations Manager. On November 2, 1981, Mr. O'Neil wrote the following letter to both the U.A.'s Director of Canadian Affairs, and a Canadian-based Vice-President of the Labourers'

International:

Dear Sirs:

Concrete Core Drilling

Earlier in the year the United Association of Journeymen and Appren­tices of the Plumbing and Pipe Fitting Industry of the United States and Canada proceeded to the Impartial Jurisdictional Disputes Board in Washington seeking a decision on the proper work jurisdiction of the core drilling of holes in concrete structures for the passage of pipe. This dispute originated at Pickering GS where the work in dispute had been assigned to the Laborers' International Union of North America.

On May 29, 1981, the Impartial Jurisdiction [sic] Disputes Board rendered a decision and awarded the work to the United Association. The Board based its decision on an Agreement of Record dated May 5, 1926. This decision was implemented at the Pickering Project.

On June 15, 1981, pursuant to Section 8 of the Procedural Rules and Regulations of the Impartial Jurisdictional Disputes Board, Ontario Hydro lodged an appeal of the May 29, 1981 decision. That appeal was denied.

Accordingly, please be advised that effective November 9, 1981, Ontario Hydro will be implementing this decision on all other work locations in the Province.

8. Prior to the November 9, 1981 date set by Mr. O'Neill, representatives of the Labourers and U.A. met to try to reach agreement on the dispute, but without success. The instant complaint was filed by the Labourers on November 17, 1981. In the complaint the Labourers contended that the reassignment of the work at Bruce had created tensions such that there was a real likelihood of a work stoppage. On the basis of this contention the Labourers asked that the Board make an interim assignment of the work prior to hearing full evidence with respect to a final direction. Because of the alleged threat of an unlawful work stoppage and the request for an interim assignment, the Board set this matter down for a hearing two days after it had been filed, namely on November 19, 1981. On November 19th, the parties indicated that because of the speed in which the matter had been listed for hearing, they were not in a position to deal with the complaint, and thus the matter was adjourned until November 26, 1981. Prior to the adjournment on November 19th, however, counsel for Ontario Hydro indicated that he would be relying on section 91(14) of the Act to contend that the Board lacked jurisdiction to entertain the complaint due to the requirement in both of the applicable collective agreements that the parties take jurisdictional disputes to the IJDB. In response to this, counsel for the Labourers contended that the IJDB was no longer opera­tional. Counsel for the U.A., however, took the position that if the Labourers were claiming that the IJDB was no longer operating, the Labourers were required to bring forth some evidence to substantiate the contention.

9. The raising of the status of the IJDB at the hearing on November 19th led to certain consultations between local and international officials of the Labourers' union. On November 20, 1981, the General President of the Labourers' International requested that the IJDB make a determination with respect to the work in dispute at Bruce. Mr. Witeraft of the IJDB wrote as follows to the General Presidents of the two International unions.

Pursuant to action of the Joint Administrative Committee, effective May 21, 1981, the Impartial Jurisdictional Disputes Board is not presently making or issuing job decisions. All other provisions of the Plan for the settlement of Jurisdictional Disputes and the Procedural Rules and Regulations continue in full force and effect.

Accordingly, both International Unions are requested to continue efforts to settle this jurisdictional dispute directly.

10. On November 23, 1981, Ontario Hydro forwarded the following telegram to Mr. Witcraft at the IJDB:

Ontario Hydro has implemented the Board decision of May 29, 1981 re Core Boring Holes. The Labourers' International Union has filed a complaint with the Ontario Labour Relations Board arguing IJDB is no longer in effect, therefore, Ontario Hydro is in error making the assignment. The hearing is scheduled for Thursday, November 26, 1981. Please advise status of IJDB prior to November 26, 1981.

This telegram was replied to as follows by Mr. Witeraft on November 25, 1981:

Re tel. November 24, 1981 regarding complaint filed by Laborers in jurisdictional dispute with United Association over core boring of holes in concrete for pipe, Pickering Nuclear Plant Project, Pickering Ontario Canada, Ontario Hydro Contractor, plan for the settlement of jurisdictional disputes in construction industry still in full force and effect, with the exception: Board not currently issuing job decisions, jurisdictional disputes are to be settled directly by unions involved, if direct settlement not reached, contractor must proceed with disputed work in accordance with original assignment.

11. Ontario Hydro's telegram to the IJDB of November 23, 1981 did not refer specifically to the Bruce site. From Mr. Witcraft's reply, it is clear that he was of the impression that the dispute continued to center around Pickering. However, on the basis of Witcraft's reply stating, "if direct settlement not reached, contractor must proceed with disputed work in accordance with original assignment", Ontario Hydro reassigned the work in dispute at Bruce back to the Labourers. Accordingly, when this matter came back on for hearing on November 26, 1981, the work had been reassigned to the Labourers. Further, counsel for Ontario Hydro advised the Board that it was Ontaion Hydro's intention to continue assigning the work to the Labourers unless otherwise directed by the IJDB.

12. At the November 26th hearing, counsel for the Labourers contended that this Board should make a determination with respect to the jurisdictional dispute between the two unions. Counsel contended that the Labourers had exhausted the IJDB procedures without that body having rendered a final decision, and that the Labourers desired, and were entitled to, a final resolution of the matter. This position was disputed by both the U.A. and Ontario Hydro. Both of these parties adopted the view that the current assignment to the Labourers was in accord with the procedures of the IJDB and should remain untouched, unless and until altered by the IJDB. The U.A. contended that the Labourers were seeking to remove the entire issue from the IJDB out of a concern that if the IJDB does in the future consider the issue on its merits, it will likely make the same award as it did with respect to Pickering, namely, award the work to the U.A.

13. This Board has general authority to deal with jurisdictional disputes in the Province. However, section 91(14) of the Act prohibits the Board from inquiring into a complaint where the parties in a collective agreement have agreed to refer the dispute to a mutually selected tribunal. In enacting this provision, the Legislature doubtless had in mind the IJDB and its predecessors. It should be noted that in most situations there are real advantages to both trade unions and employers in having jurisdictional disputes taken to the IJDB. Traditionally, submissions have been put before the IJDB by officials of the International unions, largely in written form. There have not been any lengthy hearings. Decisions of the IJDB have tended to be based on certain "decisions of record" without setting out the rationale behind the tribunal's decisions. These factors, when taken together, have resulted in the IJDB being able to make work assignment awards more quickly than has this Board. Going to the IJDB has also had its drawbacks, however. The decisions of record relied on by the IJDB frequently date back to the 1920's and, accordingly, in the view of some, fail to reflect existing realities. Further, since IJDB awards have been restricted to a particular job site, without any discussion of the principles underlying the award, decisions generally have been of little value in helping with the assignment of work on later jobs, particularly where the work differs somewhat from that dealt with by the IJDB. While the procedures of this Board, with full hearings and reasoned decisions, make for a slower decision-making process, the Board's decisions and reasoning are such that they can be relied on by parties with respect to future work assignments. This is true even where the work differs from that actually before the Board, in that the principles and criteria developed by the Board can frequently be applied to other fact situations. Another major difference between this Board and the IJDB is that this Board has a much greater degree of stability. The IJDB is essentially a voluntary organization created by, and in large measure dependent on the good will of, the trade unions belonging to the AFL-CIO's Building Trades Department. Because of this, on several occasions the IJDB and its predecessors have faced operational difficulties caused by a lack of agreement among the construction trade unions concerning how the IJDB should operate and the degree of support that unions should give to both the tribunal and its determinations. It perhaps should be noted at this point that, notwithstanding many predictions of its imminent demise, the IJDB and its predecessors have in the past shown a remarkable ability to reorganize and continue their operations.

14. We have discussed the relative merits of this Board and the IJDB not with a view to reaching any conclusions as to which is the better forum for handling jurisdictional disputes, but only to stress that while the IJDB does have certain very real advantages, most notably speed, it does have its own disadvantages, including the fact that it is prone to operational difficulties. Presumably, trade unions and employers which are active in the construction industry are familiar with both the advantages and disadvantages of the IJDB and have those in mind when they decide whether or not to agree to include provisions in their collective agreements requiring that jurisdictional disputes be submitted to the IJDB.

15. In the instant case, the council of trade unions to which the Labourers belong agreed that any jurisdictional disputes will be settled "in accordance with procedure as outlined by the Impartial Jurisdictional Disputes Board". In our view, the Labourers are bound by this agreement for the duration of the term of the collective agreement, and are not entitled to decide that any particular dispute should not be dealt with under the IJDB procedures. Article 10.06 of the collective agreement binding on the Labourers provides that if the IJDB fails to render a decision within sixty days of the disputed assignment, The Electrical Power Systems Construction Association, of which Ontario Hydro is a member, shall have recourse to this Board. It may well be that if the evidence indicated that the IJDB had entirely ceased operations and could not deal with this dispute within a reasonable time period, this Board might conclude that section 9 1(14) of the Act was not applicable and that any affected party could bring the matter before this Board. On the evidence, however, it is apparent that the IJDB has not ceased operating entirely, and that although it is not currently issuing "job decisions" it is still requiring that parties follow the procedure of the plan for the settlement of jurisdictional disputes in the construction industry. When the Labourers referred this matter to the IJDB they were advised that although the IJDB was not making "job decisions", the other provisions of the settlement plan were in effect, and that the two unions were requested to try to settle the matter directly. The Labourers did not seek to determine what should happen if no such settlement could be reached, but it is clear from the IJDB's response to Ontario Hydro that in such a situation the IJDB requires that the original assignment of the work be continued. While Mr. Witcraft's telegram to this effect to Ontario Hydro referred to the Pickering job, in that he apparently was under the impression that the parties were still concerned with that site, presumably his response would have been the same if he had been aware of the fact that the dispute centered around the Bruce project. This is a point which could have been clarified by any of the parties by advising the IJDB of the location of the actual dispute and seeking a clarification of Mr. Witcraft's telegram to Ontario Hydro.

16. We are satisfied that the Labourers are bound to the procedures of the IJDB, and that these procedures are still operative. Accordingly, we are of the view that this Board lacks jurisdiction to deal with this matter. It should be noted that the Labourers will not suffer any prejudice as a result of this determination. The Labourers have now been assigned the work in dispute at Bruce and Ontario Hydro has indicated that it will not make any reassignment unless directed to do so by the IJDB. The Labourers, through the Ontario Allied Construction Trades Council, have agreed in their collective agreement to having the IJDB decide jurisdictional disputes and, accordingly, if the IJDB in the future directs that the work be reassigned to the U.A., such a direction will have been made by the tribunal so empowered to do so under the Labourers' own agreement.

17. Having regard to our conclusion that this Board lacks jurisdiction to deal with this matter, these proceedings are hereby terminated.

18. The decision of Board Member H. Simon will be forthcoming at a later date.