[1982] OLRB Rep. May 667
0593-81-JD United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada, Local 527, and United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada, complainants, v. Dominion Bridge Company Ltd. and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128, and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Respondents, v. Electrical Power Systems Construction Association, Intervener
BEFORE: Ian Springate, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: Alex J. Ahee and Jack Porter for the complainants; S. C. Bernardo and Ron Speight for Dominion Bridge Company Ltd.; Harold F. Caley and Frank Yong for International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128; no one appearing for the intervener.
DECISION OF THE BOARD; May 31, 1982
The style of cause of this complaint is hereby amended to add United Association of, Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada as a complainant, and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers as a respondent.
This is a complaint under what is now section 91 of the Labour Relations Act in which it is requested that the Board issue a direction with respect to the assignment of certain work. The relevant collective agreements binding on the parties require that the work assignment dispute be referred to the Impartial Jurisdictional Disputes Board for the Construction Industry ("the IJDB"). The issue has accordingly arisen as to whether, because of the provisions of section 9 1(14) of the Act, the Board has jurisdiction to entertain the complaint.
At the initial hearing into this matter, counsel for the complainants contended that the Board should not require that the work assignment dispute be submitted to the IJDB in that it was his understanding that the IJDB had ceased to operate, although he conceded that he had no concrete evidence to support this assertion. In a decision dated September 22, 1981, the Board ruled that since there was no evidence before it to indicate that the IJDB had ceased to operate, the parties were at least required to try to have the dispute dealt with by that body.
Subsequent to the Board's decision of September 22, 1981, Local 527 of the United Association requested that the matter be re-listed for hearing on the basis of its claim that the IJDB was "unable or unwilling" to hear the complaint. At the hearing, however, it was established that although Local 527 had requested of Mr. E. Moore, the jurisdictional representative of the United Association, that the matter be referred to the IJDB, Mr. Moore had declined 10 do so. Accordingly, prior to the hearing the United Association never actually referred the matter to the IJDB, a point which was reaffirmed in a telegram from Mr. Dale Witcraft, the Chairman of the IJDB, to counsel for Dominion Bridge Company Ltd.
Subsequent to the hearing, counsel for the complainants sent a telegram to Mr. Witcraft asking if the IJDB would adjudicate this work assignment dispute. On April26, 1982, Mr. Ward, the President of the United Association, forwarded the following telegram to complainants' counsel:
The following telegram has been received in this office from Dale R. Witcraft, Chairman of the Impartial Jurisdictional Disputes Board. A copy of the original is being sent through the mail also.
Quote:
Re File Can 4-14-82, regarding jurisdictional dispute between Boilermakers and United Association over single-purpose flare stack work, Ontario Hydro Bruce Heavy Water Plant A project, Ontario, Canada, Dominion Bridge Co. Ltd.
Joint Administrative Committee of plan for settling jurisdictional disputes imposed moratorium on job decisions effective June 1, 1981. However plan for settlement of jurisdictional disputes and procedural rules of Board are still in full force and effect in all other aspects. For instance, disputing International unions must either adjust jurisdictional disputes directly or allow work to proceed as assigned by responsible contractor. See particularly Article VII, Sec. 5, and Article VIII, Sec. 2, which require that jurisdictional disputes be handled in accordance with procedures of plan.
Unquote:
Martin J. Ward, General President, UA.
Section 91(14) of the Act stipulates that the Board shall not inquire into a complaint where the parties in their collective agreement have a provision "requiring the reference of any difference between them arising out of work assignment to a tribunal mutually selected by them". Here the parties have agreed to refer work assignment disputes to the IJDB. If it had been established that this requirement had been "frustrated" because it was impossible or clearly futile to refer the dispute to the IJDB, then presumably this Board would have jurisdiction to entertain the complaint. The clearest example of such a situation would be if the IJDB had gone out of existence. On the limited evidence before us, however, we are unable to conclude that the IJDB has gone out of existence or that the relevant provisions of the collective agreement have been frustrated to such an extent as to relieve the complainants of the requirement that they refer this matter to the IJDB.
Before leaving this matter, we would note that the collective agreement binding on Dominion Bridge and the United Association provides that if the IJDB fails to render a decision within sixty days of a disputed assignment, the union and the Electrical Power Systems Construction Association shall have recourse to this Board. As already noted, at the time of the hearing this work assignment dispute had not even been put before the IJDB. Accordingly, the parties have not had an opportunity to address themselves to the issue of whether Mr. Witcraft's telegram to Mr. Ward quoted above, or any similarly worded direction which Mr. Witcraft might issue in the future, amounts to "a decision" of the IJDB as that term is used in the collective agreement. We trust that if the parties do intend to raise this issue, sufficient evidence relating to the structure and operation of the IJDB, as well as the authority of its President to make decisions on its behalf, will be put before the Board so as to allow for a full and proper consideration of the matter.
Having regard to the above, we are satisfied that the complainants are required to refer this work assignment dispute to the IJDB, and that at least at the time of the second hearing they had not done so. Accordingly, pursuant to section 9 1(14), at the time of the hearing the Board lacked jurisdiction to inquire into the complaint.
DECISION OF BOARD MEMBERS H. J. F. ADE AND C. A. BALLENTINE;
We have no choice but to agree with Vice-Chairman Ian Springate as the decision relates to the operation of section 9 1(14). However, our sympathies are with the applicant union as well as other unions and companies in the construction industry in Ontario, when they endeavour to obtain a just resolve to jurisdictional disputes through the procedure of the "Impartial Jurisdictional Disputes Board" (I.J.D.B.) in accordance with existing collective agreements, such as the case at hand.
We want to make it clear that we have no quarrel with the "Procedural Rules" of the "I.J.D.B.". Our concern is one that the "I.J.D.B." and its predecessor the "National Joint Board for the Settlement of Jurisdictional Disputes" has been in a state of flux and disarray for a decade or more.
This is not the first time a union has been before the Board with pleas of frustration over what it considers the non-function of the I.J.D.B. The Board dealt with a similar situation in 1979, in Ontario Hydro, [1979] OLRB Rep. Feb. 124. That case involved a local union of the same complainant International Union and a sister local of this complainant local union in the instant case, and it involved the same Electrical Power Systems Construction Association (EPSCA) collective agreement.
As the Board held in the Ontario Hydro case referred to above, where all the parties to the jurisdictional dispute proceeding before the Board are bound by a collective agreement containing an operative provision referred to in section 91(14) of the Act, the Board does not have the jurisdiction to entertain the complaint.
If employers and trade unions in the construction industry in this province choose to continue to maintain collective agreements which require that they refer jurisdictional disputes to a tribunal which is not functioning in a satisfactory manner, that problem must be resolved by the parties, and not by the Board or the legislature. That is precisely what the majority of the Board told the parties in 1979 Ontario Hydro case when it stated:
"In our view, where the parties have mutually selected a tribunal as contemplated in section 81(14) [now 91(14)], they bear the responsibility for ensuring that they have entrusted their disputes to a viable entity. It is not the function of this Board to pass upon the constitution of the Plan and the ability of the IJDB to effectively perform the tasks which have been assigned to it by the parties."
- The purpose of section 9 1(14) is, in our view, to permit the parties themselves to fashion a procedure for resolving their jurisdictional disputes internally, without government intervention. This purpose is reinforced by the Act, since it requires the parties to comply with any decision issued by the tribunal selected by the parties. This objective is a laudable one which is consistent with our belief that the parties themselves know what is best for them in developing arid maintaining good labour relations.