National Elevator and Escalator Association v. International Union of Elevator Constructors, Local 96

[1983] OLRB Rep. July 1128

0409-83-M National Elevator and Escalator Association, Employer, v. International Union of Elevator Constructors, Local 96, Trade Union

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members J. Murray and W. F. Rutherford.

APPEARANCES: M. Patrick Moran, A. Reistetter and H. Richards for the Employer; David Jewitt and Bill Morran for the Trade Union.

DECISION OF THE BOARD; July 21, 1983

1. This is a referral from the Minister under section 107 of the Labour Relations Act in which the Minister asks whether or not his authority under section 45 of the Act is affected by the subsequent referral of the grievance before him to the Ontario Labour Relations Board under section 124 of the Act. Section 45 of the Act provides for an expedited arbitration hearing by a single arbitrator appointed by the Minister upon an application by either party to a collective agreement. Section 124 of the Act provides for an expedited arbitration hearing by the Board upon the referral of a grievance to the Board by a party to a construction industry collective agreement.

2. In this matter the trade union filed a grievance and, by letter dated May 5, 1983, requested the Minister to appoint an arbitrator under section 45 of the Act. However, on May 17, 1983, the employer referred the same grievance to the Board under section 124 of the Act. The collective agreement under which the instant grievance arose is a construction industry collective agreement. The Minister has not appointed an arbitrator under section 45 but rather has made this reference to the Board.

3. Section 45 of the Act reads:

45(1) Notwithstanding the arbitration provision in a collective agreement or deemed to be included in a collective agreement under section 44, a party to a collective agreement may request the Minister to refer to a single arbitrator, to be appointed by the Minister, any difference between the parties to the collective agreement arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

(2) Subject to subsection (3), a request under subsection (1) may be made by a party to the collective agreement in writing after the grievance procedure under the agreement has been exhausted or after thirty days have elapsed from the time at which the grievance was first brought to the attention of the other party, whichever first occurs, but no such request shall be made beyond the time, if any, stipulated in or permitted under the agreement for referring the grievance to arbitration.

(3) Notwithstanding subsection (2), where a difference between the parties to a collective agreement is a difference respecting discharge from or other termination of employment, a request under subsection (1) may be made by a party to the collective agreement in writing after the grievance procedure under the agreement has been exhausted or after fourteen days have elapsed from the time at which the grievance was first brought to the attention of the other party, whichever first occurs, but no such request shall be made beyond the time, if any, stipulated in or permitted under the agreement for referring the grievance to arbitration.

(4) Where a request is received under subsection (1), the Minister shall appoint a single arbitrator who shall have exclusive jurisdiction to hear and determine the matter referred to him, including any question as to whether a matter is arbitrable and any question as to whether the request was timely.

(5) Where a request or more than one request concerns several differences arising under the collective agreement, the Minister may in his discretion appoint an arbitrator under subsection (4) to deal with all the differences raised in the request or requests.

(6) The Minister may appoint a settlement officer to confer with the parties and endeavour to effect a settlement prior to the hearing by an arbitrator appointed under subsection (4).

(7) An arbitrator appointed under subsection (4) shall commence to hear the matter referred to him within twenty-one days after the receipt of the request by the Minister and the provisions of subsections 44(6), (7), (8), (9), (10), (11) and (12) apply, with all necessary modifications, to the arbitrator, the parties and the decision of the arbitrator.

(8) Upon the agreement of the parties, the arbitrator shall deliver an oral decision forthwith or as soon as practicable without giving his reasons in writing therefor.

(9) Where the Minister has appointed an arbitrator under subsection (4), each of the parties shall pay one-half of the remuneration and expenses of the person appointed.

(10) The Minister may establish a list of approved arbitrators and, for the purpose of advising him with respect to persons qualified to act as arbitrators and matters relating to arbitration, the Minister may constitute a labour-management advisory committee composed of a chairman to be designated by the Minister and six members, three of whom shall represent employers and three of whom shall represent trade unions, and their remuneration and expenses shall be as the Lieutenant Governor in Council determines.

(11) This section does not apply to a collective agreement in operation on the day this section comes into force but applies to every collective agreement that is renewed or made after that date.

4. Section 124 of the Act reads:

124(1) Notwithstanding the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 44, a party to a collective agreement between an employer or employers' organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, administration or alleged violation of the agreement, including any questions as to whether a matter is arbitrable, to the Board for final and binding determination.

(2) A referral under subsection (1) may be made in writing in the prescribed form by a party at any time after delivery of the written grievance to the other party, and the Board shall appoint a date for and hold a hearing within fourteen days after receipt of the referral and may appoint a labour relations officer to confer with the parties and endeavour to effect a settlement before the hearing.

(3) Upon a referral under subsection (1), the Board has exclusive jurisdiction to hear and determine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and the provisions of subsections 44(6), (8), (9), (10), (11) and (12) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.

(4) The expense of proceedings under this section, in the amount fixed by the regulations, shall be jointly paid by the parties to the Board for payment into the Consolidated Revenue Fund.

5. Section 118 of the Act reads:

Where there is a conflict between any provision in sections 119 to 136 and any provision in sections 5 to 57 and 62 to 116, the provisions in sections 119 to 136 prevail.

6. The union argues that in the absence of an express restriction against the filing of requests under section 45 by the parties to construction industry collective agreements who could file under section 124, it is entitled to make a request under section 45. The Malton Sheet Metal case, [1974] OLRB Rep. Jan. 53 is cited in support of its position in this regard. The union takes the position that once a request has been made under section 45 the Minister is required to appoint an arbitrator. In the face of its request, the union, citing Spiers Brothers Limited, [1977] OLRB Rep. April 227 (a case in which the Board refused to assert jurisdiction under what is now section 124 where nominees to a board of arbitration had been appointed under a collective agreement and the nominees had agreed to an arbitrator who had scheduled a hearing date) maintains that the Board does not have jurisdiction in this matter. The union argues further that the matter is not arbitrable under section 124 because it is the employer that has filed a union grievance under the section. In making this argument the union asserts that the Marshall Gowland Manor case [1982] OLRB Rep. May 707 does not have application. Finally, the union argues that the type of conflict referred to in section 118 of the Act is a conflict in the language of the statute. Accordingly, it is the position of the union that section 118 of the Act does not apply to the matters at hand. The union explained that it seeks the appointment of an arbitrator under section 45 because, in all likelihood, the arbitrator appointed will convene a hearing in Ottawa.

7. The employer, citing Marshall Gowland Manor, supra asserts its right to bring a union grievance to the Board under section 124 of the Act. The employer maintains that having brought the union grievance under section 124 there arises a question of jurisdiction which must be characterized as a conflict within the meaning of section 118 of the Act. The employer argues that where such a conflict exists section 118 specifies that the construction industry provisions of the Act prevail. The employer distinguishes the Spiers case supra, on the grounds that in that case the parties agreed to arbitration under what is now section 44 of the Act and accordingly, waived their right to proceed under section 124. The employer maintains that the Spiers case supra does not apply where, as in this case, two applications are made. Finally, the employer asserts that on the language of the relevant sections, the Board has jurisdiction under section 124, which was triggered upon its referral, while there is no arbitrator with jurisdiction under section 45 as the Minister has yet to appoint. The employer seeks to have the matter arbitrated under section 124 of the Act because that is the forum which has been used exclusively by these parties in the past and because under section 124 there is a greater likelihood of having the matter heard by persons with expertise in the construction industry. In these circumstances, the employer asks the Board to assert its jurisdiction and to advise the Minister that he does not have the authority to appoint an arbitrator under section 45 of the Act.

8. There is nothing in the Act to stop the union from applying for the appointment of an arbitrator under section 45 of the Act in respect of a grievance arising under a construction industry collective agreement. However, it is equally clear that the employer is entitled to refer a union grievance to arbitration under the section. Section 45 provides that "a party to a collective agreement may request" the appointment of an arbitrator. The Board found on this language in Marshall Gowland Manor, supra, that one party can refer a grievance filed by another party under section 45. Section 124, which provides that "a party to a collective agreement may refer ... a grievance ... to the Board for final and binding determination", contains language which is identical to that contained in section 45 of the Act in respect of who can initiate the referral. Having regard to the similarity in the language and the absence of any policy reasons which would support a different result, we hereby adopt the reasoning and conclusion found in Marshall Gowland Manor, supra, in respect of who may refer a grievance under section 45 of the Act, and find that the employer in this case was entitled to refer the grievance in this matter to the Board under section 124 of the Act.

9. There are, therefore, two referrals to arbitration, under different sections of the Act, in respect of the instant grievance. Upon a close reading of the two sections however, and subject to the qualification enunciated in Spiers Brother Limited, supra, it is clear that upon the referral being made under section 124 of the Act the Board has jurisdiction to hear and determine the difference between the parties while, in the absence of an appointment under section 45, there is no arbitrator at this point in time with jurisdiction under section 45 of the Act to hear and determine the difference between the parties. Accordingly, in the absence of agreement between the parties as to which expedited arbitration forum to use, in the absence of jurisdiction having been established under section 45 and in the face of the Board's jurisdiction under section 124, we find that this matter is properly before the Board under section 124 of the Act and that the Board has exclusive jurisdiction to hear and determine this matter.

10. Alternatively, if we are somehow wrong in our finding that the Board has jurisdiction under section 124 at a time when jurisdiction under section 45 has yet to be established, the conflict is one that falls to be resolved under section 118 of the Act. We are of the view that where jurisdiction to hear and rule upon a grievance under a construction industry collective agreement is established under two sections of the Act a conflict exists within the meaning of section 118 of the Act and, accordingly, the construction industry provision, which is tailor-made to the construction industry, prevails. Accordingly, section 124 prevails and the Board has the exclusive jurisdiction to hear and determine this matter.

11. We are compelled to observe that if jurisdiction had been established under section 45 prior to jurisdiction being established under section 124 we would have followed the reasoning set out in Re Spiers Brothers Limited, supra, and found that the matter was not arbitrable by this Board under section 124 of the Act. Given the notification procedure and the settlement endeavours of the Office of Arbitration upon receipt of a section 45 referral, this would occur when the non-grieving party to a construction industry collective agreement decides not to make application under section 124 upon notice of the other side's request for an arbitrator under section 45 of the Act. Where the non-grieving party makes such a section 124 application prior to the appointment of an arbitrator under section 45 however, the Board will have jurisdiction. The effect of our decision, therefore, is to allow either party to direct a construction industry grievance to arbitration under the expedited arbitration procedure provided under the construction industry provisions of the Act. For the policy reasons enunciated by the employer and bearing in mind that expedited arbitration is provided under both sections, we are satisfied that this is the correct result.

12. Having regard to all of the foregoing, our response to the Minister is that in this case he does not have the authority to appoint an arbitrator under section 45 of the Act.