International Union of Elevator Constructors, Local #50 v. Beckett Elevator Company Limited, 1983 CanLII 912

[1983] OLRB Rep. March 309

2026-8-M International Union of Elevator Constructors, Local #50, Applicant, v. Beckett Elevator Company Limited, Respondent, v. National Elevator and Escalator Association, Intervener

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members 0. Hodges and J. Wilson.

DECISION OF THE BOARD; March 17, 1983

1. This is a request for reconsideration of a decision of the Board dated September 21, 1982 (now reported at [1982] OLRB Rep. Sept. 1244). The request is contained in a letter from counsel for the applicant union dated October 13, 1982. That letter reads as follows:

"Further to receipt of the Board's decision dated September 21, 1982 our clients, the International Union of Elevator Constructors, Local 50, request the Board to reconsider its decision on the grounds which are set out hereafter.

The first basis for requesting such reconsideration is the fact that the Board came to conclusions of fact without hearing evidence or receiving an agreement of the parties in relation to the following issues. In paragraph 2 the Board made the observation that 'Beckett is not a member of the N.E.E.A., nor is it a willing participant in this bargaining process,' and further, in the same paragraph, that 'as the two rival associations were unable to compose their differences, the Minister redesignated the N.E.E.A. as the sole employer bargaining agency. It further appears that the N.E.E.A. is dominated by four large well-established national companies: Dover, Montgomery, Otis, and Westinghouse. Many of the other companies represented for collective bargaining purposes by the N.E.E.A.... are members of the C.E.C.A., the rival employer organization.’

It is apparent from our notes that there was never any Agreed Statement of Fact to lead to the above conclusions and there was certainly no evidence from which the Board could come to such a conclusion. If anything the gratuitous comment was thrown out by one of the counsel that Beckett in fact was larger than one of the above-named companies in the Province of Ontario. It would seem from much of what the Board stated later in its decision that the improper perception that Beckett was in the position of a 'poor defenseless individual employer,' was based upon the improper conclusions arrived at in paragraph 2.

Further on page 3 the Board states that 'Moreover, if some firms are regularly on the 'receiving end' of such transfers, or must absorb them at a commercially inconvenient time, it does not take much imagination to envisage the friction which may arise....

Again there was no evidence to lead the Board to making such a conclusion and in any event the conclusion is clearly incorrect as employers do not have to absorb more men than they can properly employ. There was no Agreed Statement of Fact, or evidence, to lead to the conclusion that Beckett, or any other employer, have been forced to absorb excess employees.

In paragraphs 5 and 6 of the decision, the Board seems to be contradicting itself in that it has stated that there was no evidence that individual employers, bound by the agreement, have any specific representation on the J.I.C. In paragraph 6, the Board states that the J.I.C. was composed of representatives of the Union, the N.E.E.A., and two representatives from Dover and Otis. The latter are individual employers and thus the contradiction is apparent.

In paragraph 16 of the decision, the Board states that 'an individual employer like Beckett is unrepresented on the decision-making body'. It is submitted that it would be wholly unreasonable to provide for an internal settlement procedure which places the employer on the decision-making body when its own actions are being contested. The employer has the right, as exercised in the present case, of appearing before the decision-making body and making whatever representations it wished.

It is apparent from the decision that the Board did not consider the argument that since Beckett had participated in the whole procedure it was estopped from then complaining about such procedure. If Beckett considered that the procedure at the J.I.C. was improper and contrary to the terms of the agreement and/or the Ontario Labour Relations Act then it could have acted prior to atoning to the J.I.C.'s jurisdiction.

It is submitted that the parties to a collective agreement can quite properly negotiate any item and term of condition put forward by either party. As was submitted in the instant case the parties to the industry agreement have been referring the grievances to the J.I.C., or its equivalent, for over 50 years. This is no different than a term included in numerous construction industry agreements referring jurisdictional disputes to the Impartial Jurisdictional Disputes Board in Washington. It is respectfully submitted that the decision in the instant case renders meaningless numerous other provisions in other collective agreements where similar internal boards are set up.

It is submitted that if any of the conclusions of fact which the Board came to, without hearing evidence, are to be made then they should be made after evidence had been heard on the second complaint namely File No. 2582-81-U and properly determine whether or not Beckett's accusation of unfair representation has any substance. The Board, by taking the approach it did, has effectively disposed of the legal issues in that complaint.

In addition to all of the arguments previously made and in light of the above representations, it is respectfully requested that the Board reconsider its decisions and find that Beckett Elevator is bound by the decision of the J.I.C. and that such is enforceable subject to any conclusions of fact and law which the Board may come to after hearing Board File No. 2582-81-U.

In light of the fact that November 1st has been set by the Board for a continuation of the Section 124 it is requested that such date be adjourned pending reconsideration."

The request for reconsideration is supported by the intervener in a letter dated December 17, 1982:

"We have now had an opportunity to fully review the Board's award and the union's application for reconsideration of this matter. NEEA hereby requests that this matter be reconsidered on the following grounds:

1. The Board bases its decision or its answer to the following question:

'Did the Union and the NEEA have a right founded in statute to negotiate this internal procedure that would bind all employers under the collective agreement?'

The fact that the J.I.C. had the authority to act and issue a decision that was 'final and binding' was agreed to by each of the parties at the hearing and subsequently confirmed in the following written submissions which read, in part, as follows:

(i) Intervenor, National Elevator and Escalator Association submission — May 11, 1982, page 1:

'All of the parties agreed that the Joint Industry Committee (J.I.C.)

(a) as a body is validly constituted,

(b) may hear grievances referred to it in accordance with the collective agreement, and

(c) may make decisions on grievances referred to it and those decisions are final and binding on the parties.'

(ii) Respondent, Beckett Elevator, May 18, 1982:

'With regard to the submissions of the Intervener Association, the Respondent Company agrees that at the hearing, all parties did, in fact, agree to the propositions concerning the J.I.C. outlined on page 1 of the Association's submissions as items (a), (b) and (c)'.

Given this fact as agreed by the parties, the Board's decision is perverse.

2. The Board refused to deal with the issues that were put directly before it, that being:

'In the situation where all the parties to the collective agreement, the Union, N.E.E.A. and the Employer agree that the decision arising out of the internal grievance procedure is 'final and binding', can one of the parties seeking to enforce that decision come before a Board of arbitration, in this case, the Ontario Labour Relations Board, pursuant to s.124 of the Ontario Labour Relations Act and have the decision enforced?'.

The Board chose instead to deal with the question as set out in paragraph 1 above which was both immaterial and unnecessary to the determination of the real question set out above in this paragraph. The Board thereby exceeded its jurisdiction.

3. At the hearing there was no evidence called or heard. There was no agreed to statement of facts placed before the Board.

Each of the parties made certain allegations as to what the facts were and although there appeared to be agreement on a number of indisputable items such as:

(i) the grievance

(ii) the relevant collective agreement

(iii) the submission to the J.I.C.

(iv) the J.I.C. decision

there was substantial conflict in most other facts as alleged by each of the parties.

The first sentence of paragraph 2 of the award, which reads:

certain matters are not in dispute' is simply not accurate as it relates to all of the facts set out by the Board in its award. The union in its application for reconsideration has set out numerous examples where the Board has accepted as fact the allegation of one of the parties as opposed to the allegations of another party without hearing any evidence on which to base such a decision.

4. It is clear from s.124 of the Ontario Labour Relations Act that the Respondent Beckett Elevators had a statutory right to refer the grievance to arbitration without first submitting to the jurisdiction of the J.I.C. under the collective agreement grievance procedure. Beckett, however, chose to voluntarily submit to the jurisdiction of the J.I.C. to determine the matter rather than referring it to the Ontario Labour Relations Board pursuant to s.124. The effect of the Board's decision dated September 21, 1982 is that Beckett is not bound by the decision of the J.I.C., in spite of the fact that Beckett submitted to the J.I.C.'s jurisdiction. It is our respectful submission that the Ontario Labour Relations Board has no authority or jurisdiction to overrule the decision of a body which gained its jurisdiction to decide the matter, by the voluntary submission of the parties to that jurisdiction.

All of which is respectfully submitted."

2. The basis for the Board's decision in this matter is fully set out in its written reasons. It is unnecessary to fully reiterate those reasons here. It suffices to deal with the points which counsel have raised. For the purpose of completeness, however, we note once again the provisions of the collective agreement and the statute which gave rise to comment in the initial decision:

"Article 14

GRIEVANCE AND ARBITRATION

14.01 Any difference or dispute regarding the application or interpretation of this Agreement or Local Agreements shall be settled locally between the Local Union and the Employer. Upon receipt of a written grievance the Employer Representative and the Union Representative shall meet within five (5) working days to settle the dispute. In the event the matter cannot be settled on a local basis, then either the Union or the Employer Industry Committee which it is hereby understood and agreed shall have the power to enforce its decision by mutual consent for protection of the public and the entire elevator industry.

Section 143. Where an employer bargaining agency has been designated under section 139 or accredited under section 141 to represent a provincial unit of employers,

(a) all rights, duties and obligations under this Act of employers for which it bargains shall vest in the employer bargaining agency, but only for the purpose of conducting bargaining and concluding a provincial agreement...."

[emphasis added]

3. Counsel is correct in their submission that there was no agreed statement of fact in this case, in the sense of a written document signed by the parties setting out the matters upon which they were agreed. There seldom is in Labour Relations Board proceedings where there is less formality in pleading and limited opportunity for prehearing discovery. However, even in the absence of a formal written statement of agreed facts it is common practice for the Board at the opening of the hearing to ask the parties to outline the nature of their respective positions, in order to identify the areas of agreement or disagreement and establish the context in which the dispute arises. That was the practice followed in this case. All counsel were invited to sketch in the background. No one objected to this procedure, and no one insisted upon evidence being led on matters which were not really in dispute, and in some cases, not strictly relevant to the issues to be determined. After outlining their respective positions all parties were content to move directly to argument, and did so. No one sought to lead or demanded evidence on any of the matters which had been raised.

4. An example or two will illustrate what we mean. Both at the hearing, and in his request for reconsideration, counsel for the union asserted that "the parties to the industry agreement have been referring the grievances to the J.I.C., or its equivalent, for over fifty years". At the hearing, he also indicated that the J.I.C. had rendered valuable service to the industry. No doubt it has; and the Board acknowledged that to some extent in paragraphs 9 and 17 of its decision. But there was no evidence led about the longevity of the J.I.C., its expertise or utility. This, like the submission concerning the rivalry between the two employer associations, forms part of the background of this case which was not (and is not) denied. Indeed, while initially questioning the relationship of this J.I.C. to Beckett because of its alleged different status prior to province-wide bargaining, counsel for Beckett conceded that the concept of an "internal board" was a useful one. In this, and other matters, the parties did not indicate any disagreement. That is why paragraph 2 of the Board's decision notes that "certain matters are not in dispute".

5. Similarly, the submission was made that Dover, Montgomery, Otis and Westinghouse were the dominant employers in the N.E.E.A., and that Beckett was not a member because of its prior allegiance to a rival association. None of this was questioned at the time, and it is interesting to note (as counsel for Beckett pointed out) that the representatives of the N.E.E.A. who signed the collective agreement do indeed come from Dover, Montgomery, Otis and Westinghouse. That is why the Board indicated that it "appears" that the N.E.E.A. is dominated by them — an inference which was not, and is not questioned. We also note further that the employer representatives on the J.I.C. were from Dover and Otis, and, there is no evidence that Beckett had any input into their selection. Again, that is consistent with the suggestion that these companies are important members of the N.E.E.A. On the other hand, no one suggested that Beckett is a member. Counsel for the union submits that it would be anomalous if Beckett appeared on a J.I.C. body assembled to consider Beckett's own actions, but, in so doing, merely confirms the Board's view of the nature of the J.I.C. as a body created by, and representing, the designated bargaining agencies who concluded the collective agreement — an impression entirely consistent with its composition, not questioned at the hearing before this Board, and still not denied.

6. It is said by counsel for the union that the provision creating the J.I.C.

"is no different than a term in numerous construction industry agreements referring jurisdictional disputes to the Impartial Jurisdictional Disputes Board in Washington."

It is submitted that:

"the decision in the instant case renders meaningless numerous other provisions in other collective agreements where similar internal boards are set up.

There is no evidence to support either of these propositions, but, in the Board's experience, we have encountered collective agreements which refer to the I.J.D.B. and agreements which provide for "J.I.C.'s" similar to the one here in question. We do not need evidence to support counsel's submissions as to the existence of other J.I.C.'s or the I.J.D.B. These are matters of general knowledge in the industrial relations community (although it is less obvious why we should equate the two bodies when their purpose and composition may be different, and when the role of the I.J.D.B. is expressly recognized in section 91, while the role of the J.I.C. appears to be restricted by section 143). By the same token, the existence of two employer associations in the elevator industry is not only a matter of general knowledge in the industry, but is reflected in the Ministerial designation by virtue of which the N.E.E.A.'s role in bargaining and on the J.I.C. (hence its refusal to abide by the J.I.C. opinion) and there is no reason to question this submission. The application under section 124 was, after all, initially scheduled to be heard together with Beckett's allegation under section 151 that in representing Beckett the N.E.E.A. had acted in a manner that was arbitrary, discriminatory or in bad faith. Nor was there any question about the fact that Beckett was not a member of the N.E.E.A. And at no time did the Board harbor a perception that Beckett was a "poor defenseless individual employer", nor would the Board's perception in this regard matter in any event. The fact is that no evidence was led on these matters because no one considered it necessary at the time. The focus was on the legal and interpretation question which formed the substance of the parties' dispute. That is why the parties proceeded directly to argument.

7. It is said that the Board declined jurisdiction by failing to give effect to and enforce a J.I.C. determination which the union, the N.E.E.A., and Beckett allegedly conceded was "final and binding". It is asserted that the Board "asked itself the wrong question" when it went on to consider whether the statute permitted the union and employer to negotiate a procedure controlled by the N.E.E.A. which could impose a binding settlement of a grievance upon an individual employer bound by the agreement only by virtue of the statute and the N.E.E.A.'s status as its designated bargaining agent. It is further submitted that the Board is without jurisdiction under section 124 to do anything other than "rubber stamp" and enforce the J.I.C. decision because a submission was made to the J.I.C. under Article 14 of the collective agreement which resulted in a "binding" resolution of the parties' dispute.

8. There are a number of difficulties with these arguments.

9. We leave aside whether these issues are "jurisdictional" in an administrative law sense, whether the Board is compelled to give effect to every agreed contractual interpretation submitted to it, and whether the agreement of the parties resolves any question about the legal foundation and requirement for direct enforceability of the J.I.C. decision, whatever it might be, and whatever the disputed clause in the collective agreement might actually provide. We need not speculate. However, while we do not ignore the equities of the situation here, there may well be some argument to be made about the distinction between some oral concession Beckett may have made, and the legal enforceability of the J.I.C. decision.

10. The real problem in this case, however, is that although counsel for Beckett did indeed submit that the J.I.C. decision was "binding", he did not conceded that Beckett was bound to abide by it. On the contrary, Beckett refused to give effect to the J.I.C. ruling (hence, the need for the union's section 124 application), and before the Board, counsel refused to agree that the decision was enforceable. Beckett's position was curious and contradictory, and, whatever else might be said of it, the company was not acknowledging itself to be "bound" by the J.I.C. decision in the usual sense in which that word is used. And as the Board noted in paragraph 18 of its decision dated September 21, 1982, if under Article 14 of the agreement the J.I.C. only has power to enforce its decision "by mutual consent", that consent was lacking before the Board.

11. The Board acknowledges that it should usually try to accommodate the agreement of the parties, and that it is odd to conclude that it should hear the merits of the case against a respondent when that party's counsel has purportedly indicated that the case should be disposed of in accordance with the "final and binding" opinion of someone else. Moreover, to put the matter colloquially, "the Board is not looking for work". If the parties are able to agree on a solution acceptable to them, there are strong practical reasons why the Board should endorse it. But have the parties so agreed in this case, and can we merely endorse their agreement? We have no evidence and there is no submission that prior to the Board hearing the parties had ever agreed that they would be bound by the J.I.C. decision. Certainly, nothing in writing to that effect was put before the Board, and whatever else may be said of Beckett's submission, there was no agreement before this Board that the J.I.C. decision was enforceable. On the basis of what we had before us there was no basis for concluding that there was any previous agreement as to enforceability either. Yet by this collective agreement enforceability appears to be contingent upon mutual consent, and as we read section 143 of the Act, that consent must come from Beckett. That consent was missing, for what might ordinarily follow from the use of the words "final and binding" was immediately contradicted by a rejection of the suggestion that the J.I.C. decision was enforceable. On what was put before the Board, we would not conclude that Beckett was resiling from some previously expressed agreement, and in the circumstances we determined that justice would best be served by hearing the case on its merits. That solution would avoid any residual doubts or confusion about what was alleged to be a preliminary issue, and would give all parties a full opportunity to present their positions on the substantive interpretation issue which gave rise to this problem in the first place. It also bears repeating that, under section 124, the Board has authority to hear a grievance notwithstanding the grievance-arbitration procedure in the collective agreement which, in this case, encompasses the reference to the J.I.C.

12. It is argued that by attending before the J.I.C., Beckett was "attorned" to its jurisdiction and is estopped from questioning the correctness of the J.I.C.'s determination. It is argued that, in the circumstances, the Board should simply endorse and enforce that decision. It is said that in its decision of September 21, 1982, the Board failed to consider this argument.

13. In the first place, we do not think that the estoppel argument was not put in quite this way. It was argued that the J.I.C. decision, in itself, estopped the respondent employer from contesting the merits of the grievance; and further, that by conceding that the J.I.C. decision was "final and binding" (see paragraph 10 of the Board decision), Beckett was precluded from arguing that it was not enforceable. We do not think the applicant made the submission that appearance before the J.I.C., in itself, would foreclose a later complaint. However, lest the Board has missed or misunderstood this argument, we will deal with it here.

14. We note first that recourse to the J.I.C. is not voluntary. Disputes must be referred to the J.I.C. unless the parties agree to waive that procedure. Here they did not, so that Beckett was put in the position of attending or risking the outcome if its side of the case was not presented. It is rather technical to suggest that a layman who attends before a lay body but clearly does not concur in or accept the results of its deliberations, would be taken to have waived his right to protest or require that his legal rights be determined in a forum provided by statute. This is especially so when (for the reasons set out in the Board's earlier decision) the J.I.C. was precluded by statute from imposing a binding decision, and the language of Article 14 i₁self appears to make enforcement contingent upon "mutual consent". In the circumstances, we are reluctant to infer that attendance at the J.I.C. meeting without more, confers upon it a jurisdiction which it would not otherwise have. We do not know what was said or done by Beckett on this or other occasions, or whether there was any conduct apart from attending the J.I.C. Meeting or the equivocal submissions of counsel before us, from which consent to be bound by its decision might be inferred. No evidence was led on these matters, nor did any party seek to do so. The circumstances here do not warrant the conclusion that Beckett agreed unequivocally to be bound by, and would implement, whatever the J.I.C. decided. Even the equivocal and contradictory concession made on behalf of Beckett by its counsel did not go this far.

15. For the purposes of this case we need not speculate on the factual or contractual circumstances which might prompt the Board to give binding effect to a body such as the J.I.C., nor should our decision be interpreted as a signal that the Board is anxious to deal with problems which traditionally have been, and probably should be, resolved in another less formal forum. But we do not think that this J.I.C., under this agreement, in these circumstances, has given an interpretation of the parties’ collective agreement which the Board must merely enforce. Nor do we see how we can avoid considering section 143 of the Act which, in our view, does not contemplate the role, vis a vis, individual employers and grievances, which the N.E.E.A. and the union assert is exercised by the J.I.C.

16. For the foregoing reasons, the original decision of the Board is affirmed, the application for reconsideration is dismissed, and the case should be scheduled for hearing on its merits. The matter is referred to the Registrar for this purpose.