[1982] OLRB Rep. July 1063
2522-81-JD Stoney Creek Mechanical Limited, Complainant, v. Sheet Metal Workers' International Association Local Union No. 537, The Millwright District Council of Ontario, United Brotherhood of Carpenters and Joiners of America, Local Union No. 1007, The Iron Workers District Council of Ontario and International Association of Bridge, Structural and Ornamental Iron Workers Local Union 736, International Brotherhood of Boilermakers Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128, Respondents, v. Ontario Sheet Metal & Air Handling Group, Intervener.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. A. Ronson and W. F. Rutherford.
DECISION OF THE BOARD; July 29, 1982
Paragraphs 2, 3 and 6 of the Board's decision which issued July 14, 1982, incorrectly referred to the complainant or complainant's counsel when it should have referred to the respondent Sheet Metal Workers' International Association Local Union No. 537 ("the Sheet Metal Workers") or its counsel. Therefore, where the word "complainant" appears in paragraphs 2 and 3 it is replaced by the words "the Sheet Metal Workers" and, where the words "counsel for the complainant" and "complainant's counsel" appear in paragraphs 3 and ~, they are replaced by the words "counsel for the Sheet Metal Workers", so that the text of that decision reads as follows:
This is a complaint under section 91 of the Labour Relations Act with respect to a work assignment. Three of the respondents have alleged that sub-section 14 of section 91 applies to the complaint and, pursuant to that provision, the Board lacked jurisdiction to inquire into the complaint. Accordingly, a hearing was scheduled to receive the evidence and representations of the parties on this issue.
The evidence and representations made to the Board at the hearing included, inter alia, the submissions of counsel for, respectively, Sheet Metal Workers' International Association Local Union No. 537; The Millwright District Council of Ontario, United Brotherhood of Carpenters and Joiners of America, Local Union No. 1007; The Iron Workers District Council of Ontario and the International Association of Bridge, Structural and Ornamental Iron Workers Local Union 736 and International Brotherhood of Boilermakers Iron Ship Builders, Blacksmiths, Forgers and Helpers. Local 128 that all parties to the dispute were bound by their respective collective agreements to refer work assignment disputes to the Impartial Jurisdictional Disputes Board for the Construction Industry of the Building Trades Department, AELCIO ("the IJDB") for resolution. It is common ground that the applicable collective agreements contain language to that effect. The Metal Workers and the intervener, however, contend that these provisions have been rendered nugatory because the IJDB has ceased to function.
Subsequent to the hearing, counsel for the Sheet Metal Workers referred to the Board and asked it to consider as evidence in these matters a document which purports to be a letter from the General Counsel of the National Labour Relations Board ("the NLRB") to Mr. Robert A. Geordine, Chairman, Joint Administrative Committee of the Plan for the Settlement of Jurisdictional Disputes. That letter contains the following statement:
"Recently, the Board issued a decision in Construction and General Labourers, Local Union No. 449, Connecticut Laborers District Council, Laborers International Union of North America, AFLCIO (Modern Acoustics, Inc.), 260 NLRB No. 112, a copy of which is enclosed, wherein the Board made a determination of the jurisdictional dispute despite an outstanding award by the IJDB. In making its determination of the dispute the Board established that:
since June 1, 1981, the IJDB has been inoperative, has ceased hearing such disputes, and is not now a viable organization in a position to administer or police either the award of the agreement. In these circumstances, we do not view these dispositions as determinative of the cases now before us. Accordingly, we hold that the disputes are properly before the Board for determination under Section 10(k) of the Act."
The Board goes on to say in footnote 17 of the decision:
..... Accordingly, we would be remiss in our statutory duties if we did not, under the circumstances here, find that the inoperative status of the IJDB made its outstanding awards useless as a means of adjusting the parties' work dispute."
Counsel for the Sheet Metal Workers appears to view the NLRB's comments allegedly extracted from its decision referred to in the quotation as a finding that the IJDB is inoperative. Accordingly counsel is requesting the Board to adopt the reasoning of the NLRB in reviewing the evidence in these matters on the question of whether the IJDB has ceased to function.
This same question has been before the Board in a series of complaints under section 91. It is fairly common ground amongst parties who have stipulated to the IJDB procedures in their collective agreements that it has not made job decisions in work assignment disputes since June 1, 1981. Prior to that date even, the complainant in Ontario Hydro, [1979] OLRB Rep. Feb. 124, raised doubts as to whether the IJDB was functioning. More recently the allegation that the IJDB had ceased to operate was before the Board in Dominion Bridge Company Ltd., [1981] OLRB Rep. Sept. 1222. The Board noted that, notwithstanding that allegation, the Board had "no evidence before [it] that the [IJDB] has actually ceased to operate.". The Board postponed inquiring into the complaint pursuant to section 91(13) so that the parties could at least try to have the dispute dealt with by the IJDB. It also observed that section 9 1(14) might not apply if the IJDB is no longer operational. The complaint was ultimately brought back on for hearing and in a decision which issued May 3 1st, 1982, reported in [1982] OLRB Rep. May 667, the Board found that section 91(14) applied and it did not have jurisdiction to inquire into the complaint. The Board noted that the complaint still had not been referred to the IJDB for a hearing and that the complainant was relying on a telegram from the chairman of the IJDB stating that it was not making job decisions but that parties who were stipulated to its procedures were still bound by the procedural rules of the IJDB with respect to work assignment disputes and that those rules were still in full force and effect. The chairman directed the parties to proceed according to those rules. This Board then expressed the caution to the parties that, if they intended to raise the issue of whether such directions amount to "a decision" for purposes of the provisions in their collective agreements for resolution of work assignment disputes. . .sufficient evidence relating to the structure and operation of the IJDB, as well as the authority of its [chairman] to make decisions on its behalf, will be put before the Board so as to allow for full and proper consideration of the matter.". The Board had the same issue before it again in Ontario Hydro, [1982] OLRB Rep. July...and found that section 91(14) applied and that it lacked jurisdiction to inquire into the complaint. In finding so, the Board commented at paragraph 16 that parties who "... intend to attack the adequacy of the I.J.D.B., ... must bring evidence which demonstrates adequately what the I.J.D.B. is doing or failing to do which makes it inoperative.".
There can be little doubt from those decisions that parties coming before the Board and the Board itself are concerned with the status of the IJDB's current functioning. These decisions also allude to the Board's concern about the lack of evidence before it which might assist it in dealing with that issue. In view of these concerns, the Board believes that it would be of assistance to it in determining whether it has jurisdiction to inquire into this complaint, to have the complaint put back on for hearing to receive the further evidence and representations of the parties as to whether the IJDB is functioning and how the resolution of that question should affect the Board's determination of whether it has jurisdiction to inquire into this complaint. This does not mean that the Board is adopting or is prepared to adopt the findings of fact and reasoning of the NLRB in its Modern Acoustics, Inc., decision simply based on the letter filed by counsel for the Sheet Metal Workers without receiving the same kind of evidence which the NLRB considered. Rather the purpose of this decision is to give the parties the opportunity to bring before this Board what further evidence they can muster which would assist its evaluation of the status of the IJDB as it relates to the Board's jurisdiction under section 9 1(14) of the Act.
The Registrar is directed, therefore, to list this matter for hearing on the earliest available date for the purpose of receiving the further evidence and representations thereon of the parties with respect to whether the Impartial Jurisdictional Disputes Board is operating to resolve work assignment disputes within the meaning of section 9 1(14) of the Act and what effect, if any, the resolution of that issue should have on the Board's determination of whether it has jurisdiction to inquire into this complaint.