[1984] OLRB Rep. December 1688
2249-84-JD Labourers' International Union of North America Local 1036, Complainant, v. Bird Construction Company Limited United Brotherhood of Carpenters and Joiners of America Local 446 Gilbert Scott and Gerry Thibodeau, Respondents
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members I. Wilson and B. L. Armstrong.
APPEARANCES: B. Fishbein, J. Lewis, R. Dauphin and T. Connolly for the applicant; J. J.Nyman, G. Scott and Ktr1 Ball for United Brotherhood of Carpenters and Joiners of America Local 446, Gilbert Scott and Gerry Thibodeau; G. Grossman and John Martin forBird Construction Company Limited.
DECISION OF THE BOARD; December 7, 1984
- The Board issued the following interim order pursuant to section 9 1(8) of the Labour Relations Act in a decision which issued November 23, 1984:
The Board directs that the respondent Bird Construction Company Limited perform with a composite crew all work in connection with the stripping of concrete forms, including the releasing, dismantling and relocating of such concrete forms to the next point of usage or point of storage at its project in Sault Ste. Marie in the same manner as was being done prior to November 13, 1984.
The respondents United Brotherhood of Carpenters and Joiners of America Local 446, Gilbert Scott and Gerry Thibodeau challenged the Board's jurisdiction to entertain the request for an interim order on the grounds that the statutory pre-conditions of section 91(8) were not made out by the alleged facts. The respondent Bird Construction Company Limited did not challenge the Board's jurisdiction, but requested the Board to exercise its discretion and not issue the order. The applicant adopted the position that the Board had jurisdiction and should issue the order.
The facts as alleged in the complaint and augmented by agreement of the parties during the consultation are as follows:
(1) The work alleged to be in dispute is all work in connection with the stripping of concrete forms, including the releasing, dismantling and relocation of such concrete forms to their next place of usage or storage at the project.
(2) The respondent Bird Construction Company Limited ("the company") was performing concrete forming construction on a water reservoir in Sault Ste. Marie, Ontario. On February 14, 1984, Bird held a pre-job mark-up meeting to deal with questions of work assignment to the various trades on the project. At the end of that meeting the complainant Labourers' International Union of North America, Local 1036 ("Local 1036") and the respondent United Brotherhood of Carpenters and Joiners of America, Local 446 ("Local 446") were in dispute respecting the stripping of forms.
(3) As time approached for the disputed work to be performed, Bird asked the two unions to submit their precedents on which their claims for the work were based. The dispute was not resolved.
(4)The employer began performing some of the disputed work in mid-August, 1984 with a composite crew of labourers and carpenters in the absence of any resolution of their dispute.
(5)The respondent Gerry Thibodeau, a steward of Local 446, complained to the Company in the morning of November 12th about the composite crew arrangement. The company told Thibodeau that it would continue to perform the work with a composite crew. Later that morning, the carpenters employed by the company on the project did not return to work from their morning rest break. When they were directed by the company's general foreman to return to work, they left their job, took their tools with them and assembled outside the project.
(6) At a meeting which began that same morning on the project attended by representatives of the company and the business managers and stewards of both Locals, the company requested the business manager of Local 446 to have the carpenters return to work. The carpenters returned to work and the meeting continued for the remainder of the day. There was no resolution of the dispute and the company sought but failed to obtain assurance from the business manager of Local 446 that the carpenters would remain on the job. Absent that assurance and any resolution of the dispute, the company told the other parties that it would assess its position overnight.
(7) On November 13th, the company ceased performing the disputed work with composite crews and instead assigned specific elements of the work to each of Locals 1036 and 446.
(8) Local 1036 filed this complaint on November 15th.
- The sections of the Act relevant to this complaint provides as follows:
"91 ( 1) The Board may inquire into a complaint that a trade union or council of trade unions, or an officer, official or agent of a trade union or council of trade unions, was or is requiring an employer or an employers' organization to assign particular work to persons in a particular trade union or in a particular trade, craft or class rather than to persons in another trade union or in another trade, craft or class, or that an employer was or is assigning work to persons in a particular trade union rather than to persons in another trade union, and it shall direct what action, if any, the employer, the employers' organization, the trade union or the council of trade unions or any officer, official or agent of any of them or any person shall do or refrain from doing with respect to the assignment of work.
(8) Where a complaint is made under subsection (1) and the complainant alleges that a strike is imminent or is taking place by reason of the requirement as to the assignment of work or by reason of the assignment of work, the Board may, after consulting any employer, employers' organization, trade union or council of trade unions that in its opinion is concerned, make such interim order with respect to the assignment of the work as it in its discretion considers proper.
(9) The Board may in an interim order or direction or at any time after the making of such interim order or direction direct any person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents to cease and desist from doing anything intended or likely to interfere with the terms of an interim order or direction respecting the assignment of work."
- Counsel for the respondents Local 446, Scott and Thibodeau contends that the Board lacks jurisdiction under section 9 1(8) of the Act because the two pre-conditions requisite to the issuing of an interim order are not met on the facts alleged in the complaint. Counsel argues that, even if the Board finds that there was a strike of carpenters on November 12th, it could not infer from that fact that a strike is imminent with respect to the work assignment which is the subject matter of the complaint. Counsel cites as authority for that interpretation of the section the Board's decision in Beer Precast Concrete Limited, [1970] OLRB Rep. Feb. 1400. The alleged facts in that case were as follows. Beer had assigned to members of the labourers union the work involved in erecting pre-cast concrete architectural units on a building project. The general contractor on the project was threatened with an unlawful strike of rodmen employed on the project and represented by the ironworkers union. The general contractor directed Beer to assign two members of the ironworkers to perform the work involved in the erection of the precast concrete architectural units. Beer complied with the request. The labourers filed a complaint under section 66 of the Act, the predecessor to section 91, in which it requested an interim order under subsection 2 of section 66. The wording of section 66(2) was identical to the wording in the present subsection 8 of section 91. The Board gave the following reasons for finding that it lacked jurisdiction to issue an interim order in the matter:
"The complainant has alleged that a strike is imminent on the part of Local 721 by reason of the original assignment made by Beer, that is, the assignment to members of the complainant of work involved in the erection of precast concrete architectural units. The complainant, however, did not allege that a strike is imminent or taking place by reason of the work assignment which is the subject matter of this dispute, namely the assignment of two members of Local 721 to do work involved in the erection of precast concrete architectural units. Moreover, counsel for Local 721 advised the Board that no strike is imminent on the part of Local 721 by reason of the present work assignment." (emphasis added)
A fundamental principle underlying both mechanisms for voluntary resolution of work assignment disputes and statutory mechanisms for their adjudication is that a party should not gain jurisdiction by threatening or engaging in work stoppages. In other words, striking or threatening a strike to obtain the assignment of work cannot be rewarded as successful behaviour. Thus, if work is obtained by striking, including threatening a strike, the adjudicator will normally restore the situation which existed prior to the strike until the merits of the dispute are determined. That is an understood and accepted fact of life in the construction industry in the United States and Canada. This principle has been the cornerstone of the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry as it has been administered by the Impartial Jurisdictional Disputes Board and its predecessor the National Joint Board for the Settlement of Jurisdiction Disputes in the Construction Industry. The elimination of work stoppages as a response to work assignment disputes is a key objective of such voluntary and statutory mechanisms for the resolution of those disputes.
Serving that objective, in the Board's view, calls for a liberal interpretation of section 91(8) of the Act, not the narrow one taken by the Board in Beer Precast, supra. The Board notes that, since Beer Precast, the Board's jurisdiction has been expanded under section 91(1) in respect of the persons who can be made parties to a complaint under section 91. Under the predecessor section 66(1), the Board did not have jurisdiction to hear a complaint unless the employer involved was employing members of the disputing unions, trades, crafts or classes of employees. See, R. v. Orliffe, ex p. Can. Pittsburgh Industries Ltd., [1961] O.W.N. 223, 61 CLLC ¶ 15,373 (Ont. H.C.). That limitation was eliminated when the present wording of section 91(1) was adopted by the 1970 amendments to the Act. The obvious purpose of the amendment was to give the Board broader jurisdiction to deal with work assignment disputes.
To construe section 9 1(8) the way counsel for Local 446 argues in the fact situation alleged in the complaint would be to deny the objective of making work stoppages an unacceptable means of dealing with work assignment disputes. In the Board's view, in interpreting" ... a strike is imminent.., by reason of the requirement as to the assignment of work ...in subsection 8, the Board ought to look at the overall context of the dispute. This is because a request for an interim order under subsection 8 is made only "[where a complaint is made under subsection 1 ...". A complaint made under subsection 1 is a complaint that". . . a trade union.., or an officer, official or agent of a trade union ... was or is requiring an employer to assign particular work to persons in a particular trade union...". Where those conditions exist, the Board is given discretion to inquire into the merits of the complaint. Thus there is a statutory presumption that the complaint on which the subsection 8 request for relief is founded will proceed on its merits. When the Board hears it on its merits, the Board will focus on the context of the work in dispute and the basis of the competing claims for the work. It does not take the narrow view of the Board in Beer Precast, supra, and focus only on the assignment existing at the moment the complaint was triggered. There is nothing in the wording of subsection 8 insofar as the work in dispute is concerned, in the Board's view, which either would require or justify the Board to consider the work in dispute within a narrower context when interpreting that subsection. Rather, since the request for relief under subsection 8 originates with a complaint about particular work which would give the Board jurisdiction under subsection 1 to deal with the complaint on its merits, it makes sense that the Board would interpret subsection 8 within the same context of the work in dispute as when it is dealing with the same complaint on its merits under subsection 1. Thus, the dispute here is work in connection with the stripping of concrete forms.
Both Local 1036 and Local 446, the competing unions, claimed the work and, although an assignment was made to a mixed crew, three months later Local 446 engaged a strike. The members of Local 446 returned to work but its officials gave no assurances that the members would continue to work under the mixed crew arrangement. As a result, there remains the imminent threat of a strike by Local 446 over the crew composition for the stripping of concrete forms. It is not sufficient for Local 446 to say that its members will not now strike because the assignment has been changed to their liking. That would simply be saying that the members of Local 446 will not strike again because, by striking they now have the work that they wanted. In fact, the work in dispute is work in connection with the stripping of concrete forms and the threat of an imminent strike by members of Local 446 remains if the employer returns to using a composite crew of labourers and carpenters. In our view Local 446 is not entitled to shield itself behind the company's decision to change the assignment to suit the members of Local 446 as a result of their strike.
Counsel for Local 446 argued also that an interim order is an extraordinary remedy and, because of the operation of section 91(17) of the Act, can limit the otherwise legitimate operation and application of a collective agreement. Therefore, counsel submits, the Board should use caution in relying on public policy considerations when interpreting section 9 1(8). In making this argument, counsel was relying by analogy on the Board's decision in the Abe Dick Masonry Limited, [1972] OLRB Rep. Jan. 74. The Board did express the view in that case that interim orders under section 9 1(8) are extraordinary remedies and, therefore, caution is called for in exercising discretion under that section. The Board later in the decision also referred to the potential effect of section 91(17) of the Act on the operation of collective agreements and gave some consideration to that in the exercise of its discretion, which was to deny the interim order in that case. The facts of the case are substantially different from this one, but counsel was not relying on the facts, rather he was relying on the principle that the extraordinary nature of the section 9 1(8) remedy calls for caution. In the Board's view, what is called for is a balancing of two competing policy considerations: not to interfere unnecessarily with the proper operation of valid collective agreements; and the public policy objectives of discouraging work stoppages as a response to work assignment disputes. The facts alleged in this case favour the latter policy.
Having regard to all of the foregoing, to the facts alleged in the complaint and to the representations of the parties during the consultation, the Board finds as follows. The walk-out of carpenters on November 12th was a strike within the meaning of section 1(1 )(o) of the Act. That fact coupled with the inability or unwillingness of the business manager for Local 446 to assure the company that carpenters would remain at work, satisfies the Board that a strike is imminent. Furthermore, the coincidence of the November 12th strike, the change in work assignment on November 13th and the imminence of a strike further satisfies the Board that a strike is imminent by reason of a work assignment within the meaning of section 91(8) of the Act. Therefore, the pre-conditions are met for the Board to have jurisdiction to issue under that section the interim order set out in paragraph 1 above.
Counsel for the company asked the Board, should it find that the pre-conditions were present for the issuing of an interim order, to exercise its discretion and not issue an order requiring the company to resume performing the work in dispute with a composite crew of labourers and carpenters because the composite crew had been a source of what counsel referred to as consistent bickering between the labourers and carpenters, making it an inefficient way of performing the work. Were the Board to give effect to that request, it would result in the maintenance of the assignment made on the heels of the November 12th strike. That would have been the result had the Board declined jurisdiction as a result of interpreting section 91(8) narrowly to apply only to the work assignment which was the subject matter of the complaint. On the facts as alleged, that end result would benefit the carpenters for their strike to the detriment of the labourers. Those were not proper circumstances in which to decline to issue the order.
Since counsel for Local 446, Scott and Thibodeau had given an undertaking that they would comply with the interim order, it is unnecessary for the Board to proceed with the request for a cease and desist direction.
The Board also retained jurisdiction in this matter in the event that the parties encountered problems with implementation of the interim order.
The Board also has directed the Registrar to list this complaint for a pre-hearing conference. The attention of the parties was directed to the Board's Practice Note #15 "Jurisdictional Dispute Complaints".