[1982] OLRB Rep. July 1048
2581-81-JD International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 128, Applicant, v. Ontario Hydro and The International Association of Bridge, Structural and Ornamental Iron Workers, Local 736, Respondents
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members C. G. Bourne and M. J. Fenwick.
APPEARANCES: Chris G. Paliare, Jon McManus, Joe Duchesnav and Stan Petronski for the applicant; J. Baker and P. A. Gauthier for Ontario Hydro; David McKee, James Phair and Michael Zimmerman for Iron Workers Local 736.
DECISION OF THE BOARD; July 5, 1982
This is a request under section 91 of the Labour Relations Act that the Board issue a direction with respect to the assignment of the work hereinafter set out.
A pre-hearing conference with respect to the dispute was scheduled for March 29th, 1982 pursuant to the Board's Practice Note No. 15. During the discussion of preliminary matters, a question arose as to whether subsection 14 of section 91 of the Labour Relations Act was a bar to the Board inquiring into the complaint. The Board as constituted herein heard the representations of the parties on this issue and adjourned the hearing pending determination of the issue. On April 15th, 1982 the Board advised the parties by telegram as follows:
"For reasons which will be issued in writing at a later date the Board finds that subsection 14 of section 91 of the Labour Relations Act has application to this complaint.
Pursuant to that subsection the Board lacks jurisdiction to deal with the complaint. Accordingly these proceedings are terminated.
The reasons for that decision are set out herein.
- Ontario Hydro ("Hydro") the respondent employer to this complaint, is bound together with the complainant International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 128 ("the Boilermakers") to a collective agreement between the Electrical Power Systems Construction Association and the Ontario Allied Construction Trades Council ("the Council"). Hydro and the International Association of Bridge, Structural and Ornamental Iron Workers, Local 736 ("the Ironworkers") are bound to a collective agreement between the Electrical Power Systems Construction Association and the International Association of Bridge, Structural and Ornamental Iron Workers. The Council agreement is effective from May 1, 1974 until April 30, 1984. The Iron Workers' agreement is for a term of May 1, 1978 until April 30, 1980 and provides for its automatic renewal for successive 12 months periods if neither party gives due notice to cancel, revise or modify any provision or provisions. The work alleged to be in dispute is the installation of boiler systems for Hydro's Bruce Generating Station "B". The four boilers concerned were to be installed as complete packages and the work of installing them was assigned to the Iron Workers. The boilers for
the first unit were installed pursuant to that assignment. Problems with the supply of the boilers for the second unit developed which led to them being delivered in a "knocked-down" condition. This caused Hydro to attempt to re-assign the work to the Boilermakers, pursuant to an assignment to them for similar work during the construction of Bruce Generating Station "A". The Iron Workers would not agree to the proposed change and, as a result, the Boilermakers filed this complaint.
The two collective agreements contain almost identical language requiring the reference of work assignment disputes to the Impartial Jurisdictional Disputes Board for the Construction Industry of the Building Trades Department, AFL — CIO ("the I.J.D.B.") for resolution and stipulate that the decision of that Board will be final and binding on the parties to the agreements. The parties are agreed that the I.J.D.B. was functioning fully in 1974 when they signed collective agreements containing this undertaking and, except for a brief period in 1978, was making job decisions with respect to work assignment disputes until May 1981.
The facts set out hereunder as to the history of this work assignment are not disputed by the parties. The general president of the Iron Workers filed a complaint by letter dated November 9th, 1981 with the chairman of the I.J,D.B. Mr. Dale Witcraft, that Hydro had altered the work assignment with respect to boiler systems on Generating Station "B" and in so doing was in violation of the Procedural Rules and Regulations of the I.J.D.B.. Witcraft referred a copy of that complaint to Hydro and in an accompanying letter commented in material part as follows:
"If the information contained therein is accurate, such action constitutes a violation of the Procedural Rules of the Impartial Jurisdictional Disputes Board, Contractor responsible for the work is directed to proceed immediately with the disputed work in accordance with the original assignment.
It is a violation of the Procedural Rules for a contractor who has made a specific assignment of work to change such assignment unless there is agreement between the trades involved or a directive from the Board.
Please furnish by return communication complete facts and circumstances regarding the initial assignment of the disputed work."
Hydro filed a reply by letter dated December 1st, 1981 which described in substantial detail the history and reasons for the work assignment, beginning with the work assignment for the installation of the boiler systems on Generating Station "A" through to the disputed re-assignment of the work on Station "B". The reply also details the steps taken in attempting to have the international representatives of the Boilermakers and Iron Workers resolve the dispute. Hydro concluded its reply by taking the position that the attempted assignment to the Boilermakers of the installation of the "knocked down" boilers was not a change of assignment but was a continuation of the original assignment to the Boilermakers of the same kind of work on Station "A", an assignment which Hydro claims accords with a longstanding agreement on work jurisdiction between the Boilermakers and Iron Workers international unions.
Witcraft referred Hydro's reply to the presidents of both international unions on December 8th, 1981. The Iron Workers' response was received by Witcraft on January 19th, 1982 and claimed that the assignment made with respect to Station "B" must be maintained. Witcraft addressed a letter dated January 22nd, 1982 to Hydro and the presidents of the two international unions in which, after reiterating the history of the dispute, he stated the following conclusions:
Accordingly, Ontario Hydro did assign the eight 160-ton boilers to the iron workers and the iron workers did not agree to a change of assignment on those to be delivered in two sections. It is determined that the original assignment of all eight boilers is to the iron workers.
Contractor is directed to perform the work in accordance with the original assignment to the iron workers.
(emphasis added)
Hydro appears to have been prompted by that letter to write to Witcraft on February 5th, 1982 referring to this work assignment dispute and two others on its various construction projects which the various international unions involved had been unable to settle. Hydro expressed the view that these three disputes ". . . should be appropriately referred to the Impartial Board". Hydro also noted the fact that Witcraft had advised it earlier that '. . , effective May 31, 1981, the Impartial Jurisdictional Disputes Board is not presently making or issuing job decisions'. Hydro's letter ends with the request that"... the Impartial Board inform us if it is prepared to hear the above-noted disputes and render a final and binding decision. If the Impartial Board is unable to do so, we would ask that you respond to that effect with regards to the aforementioned disputes. . .
Witcraft replied by letter dated February 17th, 1982 and his reply states in material part as follows:
"Although the Impartial Board, under the Plan for Settlement of Jurisdictional Disputes in the Construction Industry, is not currently issuing job decisions, the Plan is in full force and effect.
During this period, the Plan provides that all trades are to perform work without interruption or threat of interruption to the progress of the project in accordance with the responsible contractor's original assignment. Such assignment is to continue unless the involved International Unions reach agreement between or among them to authorize the responsible contractor to change his assignment. Violations of the Plan and its Procedural Rules and Regulations are handled through the office of the Impartial Jurisdictional Disputes Board or by the Joint Administrative Committee, as may be appropriate under the Plan.
Accordingly, the operation of the Plan for Settlement of Jurisdictional Disputes in the Construction Industry continues to protect the interests of the owner, contractors and unions and to promote the direct settlement of jurisdictional disputes."
It is neither contended nor is there any evidence before this Board that the Boilermakers have written to the I.J.D.B. about the matters raised in the above-noted exchange of correspondence or filed a complaint with it about the work assignment dispute.
Counsel for the Boilermakers contends that the parties have agreed to submit disputes to the I.J.D.B. for resolution, therefore it is that Board which must deal with those disputes and not its chairman or the Plan for Settlement of Jurisdictional Disputes in the Construction Industry. The chairman alone is not the Board and it is the chairman alone who has been involved with the instant dispute, therefore the I.J.D.B. has not dealt with it. Furthermore, counsel argues that the I.J.D.B. has not functioned since May 1981 when it ceased making job decisions. Since it is that tribunal to which the parties have agreed to submit their disputes and be bound by its decisions, and since it has ceased to function, there is no tribunal and no binding decisions issuing. Therefore the collective agreement provisions have become null and void, In the alternative, if the Board rejects the view that the I.J.D.B. is not functioning, counsel argues that it should find Witcraft's handling of the dispute not to constitute a decision because he has failed or refused to answer the question put to him by Hydro and his letter of February 17th makes it clear that the I.J.D. B. is not going to deal with the issue. According to counsel, in those circumstances and by operation of the contractual doctrines of frustration and rescission, the collective agreement provisions for the referral of disputes for settlement by the I.J.D.B. are rendered nugatory. For all of those reasons, section 91(14) of the Act does not apply to this case. Finally, section 91(14) notwithstanding, counsel asserts that the Board has "residual jurisdiction" pursuant to section 91(1) of the Act and it should exercise that jurisdiction in the circumstances of this case where there has been a fundamental change in the work on Station "B" which was assigned to the Iron Workers in 1978 and where the chairman of a tribunal outside of the jurisdiction of the Province of Ontario is merely "rubber stamping" the original assignment. Counsel is relying on the Board's decision in Ontario Hydro, [19791 OLRB Rep. Feb. 124 in which the Board stated that "The Board has residual jurisdiction under section [91]. In the event that IJDB is unable or unwilling to entertain this dispute..., section [9 1(14)] may not apply to this complaint.". In that case the dispute had not been referred to the I.J.D.B. and it is clear that the Board, having no evidence before it that the I.J.D.B. was unable or unwilling to entertain the dispute, concluded that it may have jurisdiction to entertain the dispute and so deferred entering into an inquiry. On that point, the case at hand is readily distinguishable on its facts.
Counsel for the Iron Workers argues that subsection 14 permits parties to collective agreements to contract out of section 91 of the Act by agreeing to refer work assignment disputes to another tribunal and that the parties hereto have committed themselves to such a provision in their respective collective agreements. Those provisions constitute a contracting out of section 91. Counsel rejects the argument of Boilermaker's counsel that the I.J.D.B. has ceased to function even though it has not made job decisions since May 1981. While it is not prepared to make such decisions, counsel asserts that the I.J.D.B. is still functioning and the limits of its function are set out in Witcraft's letter of January 22nd, particularly when it is read in the context of Hydro's February 5th letter and Witcraft's February 17th reply to it. Counsel argues further that the determination expressed in Witcraft's January 22nd letter ". . . that the original assignment of all eight boilers is to the iron workers." and the direction that the contractor "... perform the work in accordance with original assignment to the Iron Workers." is a decision taken in accordance with the Procedural Rules and Regulations under which the I.J.D.B. operates. Therefore that decision is binding on the parties and attests to the fact that the I.J.D.B. is still operating. Moreover, counsel argues, the quality of the alternative arrangement to which the parties have agreed is not a matter into which this Board should inquire. In this respect, counsel relied on the Board's statement in its Ontario Hydro decision, supra, that:
"In our view, where the parties have mutually selected a tribunal as contemplated in section [91(14)], they bear the responsibility of insuring that they 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.... Once a tribunal has been established and mutually selected by the parties who have voluntarily agreed to refer their disputes to it, those parties ought to be required to first have recourse to that tribunal.".
For all of these reasons, counsel for the Iron Workers contends that the pre-conditions for the operation of section 91(14) exist in the respective collective agreements to which the parties are bound and therefore, by operation of sub-section 14, the Board is precluded from inquiring into this complaint.
While counsel for Hydro also takes the position that section 91(14) excludes the Board from the jurisdiction to inquire into this complaint, counsel is not adverse to having the Board entertain it. It is quite apparent from Hydro's representations that they would like to have the complaint conclusively resolved by one tribunal or the other.
Section 91(14) of the Act provides as follows:
"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."
Where all parties to a dispute have agreed to refer work assignment disputes to a common settlement process, the Board has found consistently, pursuant to subsection 14, that it does not have jurisdiction to inquire into such disputes. See for example, Spruce Falls Power and Paper Company Limited, [1972] OLRB Rep. Sept. 836. Recently, however, problems have arisen where the settlement process adopted by the parties has been to refer work assignment disputes to the I.J. D. B.. See for example the Board's decision in Ontario Hydro, [1982] OLRB Rep. Feb. 248. At paragraph 13 of its decision the Board notes that the legislature "... doubtless had in mind the IJDB and its predecessors." when it enacted section 91(14) and then the Board goes on to review the historical operation of the IJDB and contrast the relative merits of that process with the jurisdictional dispute settlement process of this Board. In that case the fact situation relative to the way in which the I.J.D.B. was currently functioning, or failing to function if one were to adopt the position of the complainant in that case as well as in the instant one, is quite similar to the factual situation herein. The complainants in the first case were the Labourers' International Union of North America and its Local 1059 and the respondent trade unions were the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and its Local 527. The Board found that these parties were bound to the procedures of the I.J.D.B. and that these procedures were still operative, therefore the Board lacked jurisdiction to deal with that complaint. In Dominion Bridge Company Ltd. [1981] OLRB Rep. Sept. 1222 in which the complainant United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527, the respondent Boilermakers, Local 128 and the employer were bound through their respective collective agreements to refer work assignment disputes to the I.J.D.B., the United Association argued that it should not be required to submit the dispute to the I.J.D.B. because of its understanding that the I.J.D.B. had ceased to operate, although the United Association conceded that it had no concrete evidence to support its assertion. The Board was not persuaded by that argument and postponed its inquiry into the complaint pursuant to the provisions of section 9 1(13) of the Act in order to allow the matter to be referred to the I.J.D.B. In doing so, the Board commented as follows at paragraph 8,
"8. We are well aware of the fact that the IJDB has had a somewhat checkered history in recent years. However, we have no evidence before us which would establish that the body has actually ceased to operate. In that the parties to this dispute voluntarily agreed in their collective agreements to refer any jurisdictional disputes to the IJDB, in our view, they ought to be required to at least try to have this dispute dealt with by that body. In the event that the IJDB is no longer operational, or if it fails to render a timely decision, then section [91(14)] might not apply in which case the Board would have jurisdiction to entertain this complaint....".
The issue herein before the Board is the relatively straight forward one of whether the collective agreements which are binding upon the three parties contain, in the words of subsection 14, ". .. 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,....". There can be no doubt whatsoever that each of the two agreements contains such a provision in clear, unequivocal terms.
If parties whose collective agreements contain a provision to refer work assignment disputes to the I.J.D.B., a tribunal mutually selected by the parties, are not satisfied with the tribunal or with the way in which the procedure is operating, they can by mutual consent amend that provision of the collective agreement at any time. If, on the other hand, they intend to attack the adequacy of the I.J.D.B., they must bring evidence which demonstrates adequately what the I.J.D.B. is doing or failing to do which makes it inoperative.
In the case at hand, while the parties agree that the I.J.D,B. has not made job decisions since May 1981, there is no evidence that it has ceased to deal with work assignment disputes. To the contrary, there is ample evidence in Witcraft's letters that the I.J.D.B. is indeed functioning and dealing with work assignment disputes within its Procedural Rules and Regulations. The parties may not like the way it is functioning, but that is not grounds for this Board to find that their collective agreements do not contain". ..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,.....”
We are satisfied that the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128, the International Association of Bridge, Structural and Ornamental Iron Workers, Local 736 and Ontario Hydro are bound to the procedures of the I.J.D.B. and that these procedures are still operative. Consequently this Board lacks jurisdiction to deal with this complaint. It was for these reasons that the Board issued its April 15th telegram decision that it lacked jurisdiction to inquire into the dispute and terminated the proceedings.