[1982 OLRB Rep. May 746
0190-82-JD The Sarnia Building and Construction Trades Council on its own behalf and on behalf of its Members listed on Schedules "A" attached hereto, Complainant, v. Polysar Limited Acres Davy McKee Limited Energy and Chemical Workers Union and its Local 914, Respondent, v. The Association of the Millwrighting Contractors of Ontario, The Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario, The Terrazzo Tile & Marble Guild of Ontario, Intervener #1, v. Ontario Pipe Trades Council, Intervener #2
BEFORE: D. E. Franks, Vice-Chairman, and Board Members W. H. Wightman and C. A. Ballentine.
APPEARANCES: L. C. Arnold and William Robb for the complainant, L. Bertuzzi, M. Addario and .J. Fabian for the respondent Polysar; R. C. Filion and L. Guest for the respondent Acres Davy McKee Limited; Daniel Ublansky and Stu Sullivan for the respondent Energy and Chemical Workers Union and its Local 914; G. Grossman for intervener #1; Philip Sanders for intervener #2.
DECISION OF VICE-CHAIRMAN D. E. FRANKS AND BOARD MEMBER W. H. WIGHTMAN; May 5, 1982
This is a complaint concerning work assignment filed under section 91 of the Labour Relations Act. As part of the complaint, the complainant has requested that the Board issue an interim order as well as a cease and desist order, in effect restoring the performance of the work in dispute to the complainant trade unions. In accordance with the Board's Rules of Practice where an interim order is requested, the Board convened a meeting of the interested parties and heard their representations with respect to the request for an interim order. In the present cased, after hearing the representations of the parties on the factual situation and with respect to the interpretation of section 91(8), the Board declined to issue an interim order.
The following fact situation was put before the Board at the consultation with the parties. The re5.pondent, Polysar Limited, has two projects under way in Sarnia. One project, which is the subject matter of this complaint, is an Isobutylene Plant which was apparently started in January of 1981. Work on that job was performed by members of the complainant trade unions and it is common ground between the parties that as of April 23, 1982, ninety-five per cent of the work on that project has been completed, the remaining five per cent constituting about two months work. The other project being undertaken by the respondent Polysar is a Butyl Plant. This work had just recently commenced and it is apparently an extremely large project. However, it is not the subject of the present complaint.
The work on the Isobutylene Plant was being performed by Acres Davy McKee Limited as a general contractor who in turn sub-contracted various portions of the work, as agent for Polysar, to various trade contractors. It appears that on April 22, 1982, Polysar cancelled its contract with Acres Davy McKee Limited which in turn led to the cancellation of the various sub-contracts (of which there are reported to be about 13 in all). Further, under the terms of the cancellation, instructions were given to have the site cleared of tradesmen and equipment by Friday, April 23, 1982. It also appears that at about the same time Polysar "suspended" all contracts and all work on the Butyl Plant referred to above which is across the street from the Isobutylene Plant.
At about the same time Polysar announced its intention, which it confirmed at the consultation in this matter, to complete the work on the Isobutylene Plant using its own employees, members of the Energy and Chemical Workers Union Local 914. Polysar's position on this was that there were some 750 of its employees currently on lay-off and that lay-off was due to end on May 10, 1981, and from that day on Polysar intended to complete the remaining five per cent of the work on the Isobutylene Plant using its own forces.
On Monday, April26, 1982, members of the complainant Building Trades Council picketed the Polysar operations. This picketing continued Tuesday morning and on Wednesday morning, April 28th the date of the consultation held by the Board. Although the magnitude of the picket line is in dispute, there is no indication that Polysar's own employees were prevented from working, and of course, there was no work being performed on the Polysar Isobutylene Plant, which could be stopped by the pickets, although it is alleged that there are two unrelated contractors performing other work on the job site, and their employees were alleged to be late reporting to work on both Monday and Tuesday, the 26th and 27th of April, respectively. Although there were no specific representations resulting from this issue it is clear from representations to the Board that the Sarnia community views the acts by Polysar at both job sites as related, and there can be no doubt that this whole matter has caused considerable concern in the community.
Before dealing with the argument of the complainant and the response to that argument by the respondent Polysar, we should first note that counsel for Acres Davy McKee Limited took the position that it was not properly a respondent in the present case since at the time of filing the complaint it no longer had any connection with the job site in question, its contract having been completely cancelled by Polysar. We note this at this point, noting however, that the Board declined to rule on this issue leaving it to be dealt with more specifically at a hearing by the Board in this matter.
Counsel for the complainant argued that the present complaint under section 91 was the same as the Ford case (an unreported decision of the Board involving a work assignment dispute between the Windsor Building Trades Council and the Ford Motor Company of Canada Limited and The United Automobile Workers of America). He thus argued that Polysar's announced intention to assign the work to the Energy and Chemical Workers Union should be stopped by an interim order, and the work should be assigned to the members of the Building Trades Council which had previously performed the work. He argued that a strike was imminent by virtue of the picket line referred to above and that the high emotions generated in the community over the conduct of the respondent Polysar could very well lead to further industrial conflict.
Counsel for the respondent Polysar challenged the Board's jurisdiction to entertain the complaint under section 91(1) generally. Counsel, however, also specifically addressed the matter of the requirement of section 91(8) dealing with the issuance of an interim order. He pointed out that the strike, if any, was not "by reason of any assignment of work" and further he pointed out that there was no strike because there were no employees to go on strike. In that sense, therefore, there could be no justification for issuing the interim order since none of the Building Trades employees had left the place of employment since given the situation they were simply no longer employed there.
Counsel for the respondent trade union took no position with respect to the issuance of the interim order. Counsel pointed out that to date no assignment had been made to the members of the respondent union, however, they would perform work pursuant to their collective agreement if it was assigned to them.
After consideration of the positions of the parties, the Board declined to issue an interim order under section 91(8). That subsection reads as follows:
"Where a complaint is made under subsection (1) and the complainant alleges that a strike is imminent or is taking place by reason of the requirement as to the assignment of work or by reason of the assignment of work, the Board may, after consulting any employer, employers' organization, trade union or council of trade unions that in its opinion is concerned, make such interim order with respect to the assignment of the work as it in its discretion considers proper."
We are of the view that that section contemplates an existing or threatened work stoppage with respect to the named respondents by reason of the assignment on which the complaint is based. In the present case the mere presence of a picket line is not in itself a strike affecting the respondents. Indeed, since there are no Building Trades employees on the job site, it is doubtful that the building trades employees can conduct a strike in such circumstances. Nor is there any evidence that such a picket line would stop the employees who are members of the respondent Energy and Chemical Workers Union from performing their duties of the respondent Polysar.
This is apart from the very real problem that this case raises with respect to the complainant asking for an order against the members of its constituent locals. Presumably, any cease and desist order which would arise from an interim order would be to direct the members of the unions belonging to the complainant Building Trades Council from picketing. In effect then, the complainant is asking for an order directed principally at itself to stop members of its constituents from picketing.
In this respect the present case is quite different from the Ford case referred to by counsel for the complainant. Although the situation in that case was similar in that the plant being constructed was almost finished when work that had been assigned to the Building Trades was reassigned to members of the U.A.W., which is the case with respect to the Isobutylene Rant construction. In the present case there are significant differences. The Board, in the Ford case, did in fact direct the reassignment of work to members of the Trades Council, but in that case, when the request for an interim order was made, there had been a history of work stoppages on the plant site as a result of pickets by certain members of the Building Trades Council unions. There were both U.A.W. members and Building Trades Council members at work on the job site and these picket lines effectively stopped work by the Building Trades Council employees. Further, the complainant Windsor Building Trades Council was able to show that these picket lines were quite outside of their control. In the present case, there is not a mixture of Building Trades Council tradesmen and Energy and Chemical Workers Union members on the job site. Indeed, there is no one on the job site. Nor has there been a history of work stoppages on this job site. In the absence of such work stoppages or threats thereof, it is clear that the Board does not have the power to issue an interim order under subsection 8.
In giving its oral ruling at the end of the consultation in this matter, the Board noted that the complaint under section 91(1) would be processed in the usual manner, and the Board directed counsel for any respondents challenging the jurisdiction of the Board to entertain the complaint under subsection 1, to have their representations on this matter filed with the Board by Wednesday, May 5, 1982. The Board also noted, that should work stoppages occur in the future, the complainant could at that time renew its request under subsection 8.
The matter is referred to the Registrar for further processing of the section 91 complaint.
DECISION OF BOARD MEMBER CA. BALLENTINE;
- I dissent from the majority opinion. I would have issued an interim order restoring the original assignment of the work in dispute to members of the complainant Building Trades locals.
(Appendix "A" omitted)