Ontario Labour Relations Board
[1982] OLRB Rep. March 428
2311-81-M United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Applicant, v. The Electrical Power Systems Construction Association and Ontario Hydro, Respondents
BEFORE: R. A. Furness, Vice-Chairman, and Board Members C. A. Ballentine and W. G. Donnelly.
APPEARANCES: L. C. Arnold and G. Meservier for the applicant; Ross Dunsmore and Phil Gauthier for the respondents.
DECISION OF THE BOARD; March 4, 1982
The applicant has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding determination.
The grievance arises under the provisions of the Ontario Provincial Power Sector collective agreement (the "collective agreement") by and between The Electrical Power Systems Construction Association (the "Association") on behalf of Ontario Hydro and all other contractors performing work in the electrical power systems sector and the applicant. This collective agreement came into effect on May 1, 1980, and remains in effect until April 30, 1982.
The text of the grievance is set out in a letter dated February 5, 1982, from the applicant to the respondents and which states:
Please be advised that we have been retained on behalf of the U.A. in connection with an alleged violation by Ontario Hydro of the above referred to Collective Agreement, and in particular Article 6 thereof.
MATERIAL FACTS
Ontario Hydro has failed to assign the work of the handling and installation of the auxiliary boiler and associated equipment at Thunder Bay Generating Station (the work) to Members of the U.A., and has thereby violated the Collective Agreement, and in particular Article 6 thereof.
The U.A. alleges that Ontario Hydro has failed or refused to apply the terms and conditions of the Collective Agreement in assigning the Work, in that it has failed or refused to assign the work in accordance with the procedures established by the Impartial Jurisdictional Disputes Board as required by Article 6 of the Collective Agreement.
The U.A. alleges that if Ontario Hydro had followed such procedures the work would have been assigned to Members of the U.A., rather than to members of the Ironworkers Union.
The Union alleges that the Impartial Jurisdictional Disputes Board procedure requires that work be assigned in accordance with decisions of record or agreements of record. The only decision or agreement of record consists of a Decision of Record, dated October 3, 1923, which unequivocably requires The Work to be assigned to Members of the U.A.
REMEDIES
The Union, therefore, seeks the following remedies:
A Declaration that Ontario Hydro has failed to apply the procedures of the Impartial Jurisdictional Disputes Board when assigning The Work, and has thereby contravened the Collective Agreement and in particular Article 6 thereof.
A Direction that Ontario Hydro comply with the procedures of the Impartial Jurisdictional Disputes Board as required by the said Article 6 of the Collective Agreement.
A Declaration that in applying such procedures The Work should be assigned in accordance with the Decision of Record of October 3, 1923, and in consequence should be assigned to Members of the U.A.
The Union seeks damages arising out of the violation of the Collective Agreement by Ontario Hydro as aforesaid.
Please be advised that this Grievance is being referred to the Ontario Labour Relations Board pursuant to Section 124 of the Ontario Labour Relations Act.
Article 6 of the collective agreement provides:
Article 6
WORK ASSIGNMENT
6.1 The jurisdiction of the Union shall be that jurisdiction established by agreements between International Unions claiming the work or decisions of record recognized by the AFL-CIO for the various classifications and the character of the work performed.
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 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.
6.3 When there is a dispute as a result of a pre-job 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.A. 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 Unions shall have recourse to the Ontario Labour Relations Board for a decision.
6.7 In the event the building trades in the Province of Ontario are successful in establishing a Provincial Impartial Jurisdictional Disputes Board, the Association and the Union agree to meet and discuss implementation of procedures set forth by said Board.
The applicant argued that the Board ought to entertain this grievance because Ontario Hydro has failed to consider evidence of established practices within the industry when making the jurisdictional assignment as required by Article 6.2 of the collective agreement. The applicant characterized its grievance as a preliminary issue to any assignment of work and which requires resolution prior to adjustment in accordance with the procedure established by the Impartial Jurisdictional Disputes Board (the "IJDB") or any other successor agency of the Building and Construction Trades Department. The applicant conceded that there are two aspects to this grievance, namely, the refusal by Ontario Hydro to assign certain work to it and, secondly, the dispute between the parties over the interpretation of Article 6.2 of the collective agreement. The applicant concedes that while the first aspect of grievance has jurisdictional overtones, the second aspect does not contain jurisdictional overtones and involves the interpretation of the language of a collective agreement.
The respondents argued that the Board does not have jurisdiction to entertain the alleged grievance because the applicant has alleged a violation of the jurisdictional dispute article of the collective agreement. The respondents referred to the provisions of Article 6 as providing a method of resolving jurisdictional disputes before the IJDB. In these circumstances, it was the position of the respondents that the Board does not have jurisdiction to entertain the alleged grievance and that the proper recourse is for the applicant to adjust its jurisdictional claims before the IJDB.
The Board is of the opinion that notwithstanding the juridictional overtones to this grievance, the applicant is entitled to have the interpretation to be given to the language of Article 6.2 of the collective agreement by the Board pursuant to the provisions of section 124 of the Act. However, the Board agrees with a previous decision of this Board (involving similar issues in an application made under the provisions of section 124) that once the issue of the interpretation to be given to certain language has been determined, aspects of the grievance may give rise to a jurisdictional dispute. See Board decision 1560-81-M, dated December 10, 1981 (unreported). When that point has been reached the Board would be prepared to consider representations as to whether the Board has jurisdiction to continue to entertain this application.
The Registrar is directed to list this matter for continuation of hearing.