Ontario Labour Relations Board
[1982] OLRB Rep. July 1043
0674-82-JD Labourers' International Union of North America Ontario Provincial District Council on its own behalf and on behalf of all its affiliated Local Unions in the Province of Ontario, and Labourers International Union of North America, Complainants, v. O.J. Pipelines Ltd., The Pipeline Contractors Association of Canada, The International Union of Operating Engineers, and The International Union of Operating Engineers, Local 793, Respondents.
BEFORE: R. A. Furness, Vice-Chairman and Board Members C. A. Ballentine and J. Wilson,
APPEARANCES: J. Sack, Q. C., Lorne Richmond, Tom Connolly and Ugo Rossini for the complainants; P.M. Rusak and N. Waldbillg for O.J. Pipelines Ltd., no one for the Pipeline Contractors Association of Canada, Laurence C. Arnold, Paul Falzone and Phil Gauthier for the International Union of Operating Engineers and the International Union of Operating Engineers, Local 793.
DECISION OF THE BOARD; July 30, 1982
The complainants have requested that the Board issue a direction under section 91 of the Act with respect to "all work in connection with sand blasting on the O.J. Pipelines Ltd. project currently under way between Pembroke and North Bay, Ontario."
A pre-hearing conference was scheduled for July 26, 1982. However, the International Union of Operating Engineers (the "IUOE") and the International Union of Operating Engineers, Local 793 ("Local 793") raised a preliminary objection to the jurisdiction of the Board. At the hearing the LUOF and Local 793 argued that the parties had provided, pursuant to certain collective agreements, for a method of resolving jurisdictional disputes in the form of the jurisdictional committee of the Canadian Pipeline Advisory Council. The IUOE and Local 793 argued that since the parties had entered into collective agreements that contain a provision requiring the reference of any difference between them arising out of work assignment to a tribunal mutually selected by them, the Board did not have the jurisdiction to inquire into this complaint pursuant to section 9 1(14). The complainants argued that the Board did have jurisdiction to entertain this complaint. O.J. Pipelines Ltd. informed the Board that it neither wished to adduce evidence nor address argument on the question of the jurisdiction of the Board to entertain the complaint.
After hearing the evidence and representations of the parties on July 26, 1982 the Board informed the parties that it had determined that it had jurisdiction to entertain this complaint and that written reasons would be subsequently given.
The Pipeline Contractors Association of Canada (the "Association") has collective agreements with the IUOE and its local unions; the Labourers International Union of North America ("LIUNA") and its local unions; the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Teamsters") and its local unions; and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ("UA") and its locals. These collective agreements cover the essential trades engaged in the work of laying pipelines.
Article XVI of the LIUNA's collective agreement states:
Article XVI
Canadian Pipeline Advisory Council
There shall be maintained throughout the term of this Agreement a Canadian Pipeline Advisory Council consisting of one representative of the Labourers International Union of North America, one representative of the International Union of Operating Engineers, one representative of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, and one representative of the International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America and an equal number of representatives of the Association. The Council shall act whenever possible to settle matters of dispute which arise from time to time and any other matters concerning the harmonious relationships between the Parties hereto.
Article XVI of the IUOE's collective agreement states:
Article XVI
Canadian Pipeline Advisory Council
There shall be maintained throughout the term of this Agreement a Canadian Pipeline Advisory Council consisting of one International Representative of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, one International Representative of the International Union of Operating Engineers, one International Representative of the Laborers International Union of North America and one International Representative of Teamsters Chauffeurs, Warehousemen and Helpers of America, together with an equal number of representatives of the Association. The Council shall act, whenever possible to settle matters in dispute which arise from time to time and any other matters concerning the harmonious relationships between the Parties hereto under the terms and provisions of this Agreement.
In addition, the IUOE's collective agreement also contains the following article XIV:
Article XIV
Work Stoppages, Secondary Boycotts
and Jurisdictional Disputes
A. There shall be during the term of this Agreement and as to any work covered hereby, no slowdown, stoppage of work, no strike and no lockout over the terms and conditions of this Agreement, it being the good faith and intention of the Parties hereto that by the execution of this Agreement, industrial peace shall be brought about and maintained, that the Parties shall co-operate to the end that work may be done efficiently and without interruption. In the case of any violation of this Agreement, the Employer and the Union shall be notified immediately.
B. In the event that a dispute arises between any of the Unions and/or any other Union, over the proper assignment of work by a pipeline contractor, then one of the parties affected by the dispute may refer the matter to the Advisory Council for decision. Pending a decision by the Advisory Council, the work shall continue without slowdown or stoppage in the manner in which it was assigned by the contractor.
C. Where a jurisdictional dispute over proper assignment of work is referred to the Advisory Council, the chairman and the recording secretary shall, as promptly as possible, convene a meeting of one appointed representative of each of the Unions and one appointed representative of the Association which shall be constituted as a Jurisdictional Committee. The Jurisdictional Committee shall select one of its members to act as chairman for the conduct of proceedings with respect to the particular dispute involved. There shall also be a secretary designated who may or may not be a member of the Jurisdictional Committee but only the five principal members of the Jurisdictional Committee shall be entitled to vote.
D. Any of the parties affected by the dispute may submit to the Jurisdictional Committee any evidence desired to substantiate its claim to the work in dispute and the Jurisdictional Committee shall consider all evidence submitted by any of the parties. In arriving at a decision, the Jurisdictional Committee shall be guided, without priority, by the following factors:
Decisions of the National Pipeline Industry Joint Policy Committee.
Inter-union Jurisdictional Agreements.
Skill Requirements
Efficiency and Economy.
Industry Practice.
A majority decision of the Jurisdictional Committee shall be final and binding of all parties affected by the dispute.
E. Unless otherwise agreed to by the disputing parties and the Advisory
Council, decisions rendered by a Jurisdictional Committee shall be for the particular job on which the dispute arose.
F. Parties in dispute shall have the right to hearing before the Jurisdictional Committee only upon the terms and conditions set out herein. A decision shall be reached as promptly as possible, and not longer than fourteen (14) days after a dispute has been referred to it, unless a longer period has been agreed upon by the interested parties and the Jurisdictional Committee.
G. Each of the respective organizations shall bear the cost of expenses of their representatives on the Jurisdictional Committee and any other parties in attendance at meetings of the Jurisdictional Committee shall bear their own cost of expenses.
The LIUNA's collective agreement does not contain a provision which is similar to this article
XIV.
The collective agreements between the Association and the IUOE and LIUNA each contain provisions with respect to a grievance and arbitration procedure. As mentioned earlier, the collective agreement between the Association and the IUOE contains article XIV with respect to jurisdictional disputes. The collective agreement between the Association and the LIUNA does not contain an article which specifically concerns itself with jurisdictional disputes. The collective agreements between the Association and the Teamsters and the UA also contain separate articles which specifically refer to jurisdictional disputes and the Canadian Pipeline Advisory Council. The LIUNA have resisted in their collective agreement with the Association the inclusion of an article which specifically concerns itself with jurisdictional disputes. During 1982 a dispute arose in Alberta concerning whether a helper to a fuel truck driver should be a teamster or labourer. On that occasion a local union of the LIUNA submitted itself to a determination of a jurisdictional dispute by a jurisdictional committee. This course of conduct was taken by the western sub-regional office of the LIUNA and the eastern sub-regional office of the LIUNA and the eastern sub-regional office was unaware of the matter before the jurisdictional committee until the matter had been concluded. The proceeding before the jurisdictional committee is presently being challenged in the courts in Alberta. The Ontario Provincial Council of the LIUNA has made it clear to the Association and the three other trade unions that it is not required to be a part of the jurisdictional committee.
Section 91(14) states:
(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.
The subsection creates an exception to the jurisdiction of the Board undersection9l to issue a remedy which it is normally entitled to issue and any provision which purports to exclude the jurisdiction of the Board is strictly construed. See Canadian Johns-Manville Company Limited [1974] OLRB Rep. January, 2. In Adam Clark Company Limited 76 CLLC ¶1 16,053, the Board held that where there was a dispute between two trade unions, both collective agreements must establish the dispute-settlement mechanism before the jurisdiction of the Board is excluded under section 91(14).
In the instant complaint, while there is a general provision respecting the Canadian Pipeline Advisory Council and a further provision respecting a grievance and arbitration procedure in both collective agreements, only one of the collective agreements contains an article which clearly and unequivocally refers to jurisdictional disputes. That article is detailed in its content and specifically refers to jurisdictional disputes. In the view of the Board, the provisions of both article XVI's are general in nature and neither contemplate nor contain a provision of the type referred to in section 9 1(14). If article XVI contained such a provision there would be no need for article XIV in the collective agreement between the Association and the IUOE. The fact that the LIUNA in western Canada has apparently submitted to a determination of a jurisdictional dispute by a jurisdictional committee does not, in the opinion of the Board, establish the existence of a provision in the two relevant collective agreements of the type envisaged in section 9 1(14). In the context of the actual contents of the two relevant collective agreements, the declared position of the LIUNA and the evidence before it, the Board is of the view that the jurisdictional committee which was convened in western Canada was merely in the nature of an ad hoc committee and was not established pursuant to a provision as envisaged in section 9 1(14). In the result, the Board has jurisdiction to entertain this complaint.
The parties at the hearing agreed that there was no need for a pre-hearing conference. In their view there will not be extensive evidence in this complaint. In these circumstances, this matter is to be listed for hearing on the merits. The present panel is not seized with any continuation of this complaint.