Ontario Labour Relations Board
[1985] OLRB Rep. February 336
2889-84-M United Brotherhood of Carpenters and Joiners of America, Local 18, Applicant, v. Speed Drywal Ltd., Respondent
BEFORE: Paula Knopf, Vice-Chairman, and Board Members F. Burnet and L. Collins.
APPEARANCES: Stanley Simpson, J. Tarbutt and T. Fenwick for the applicant, Jane A. Ford and Philip Romano for the respondent.
DECISION OF THE BOARD; February 21. 1985
1This case came before the Board by way of an application under section 124 of the Labour Relations Act. The matter came up for hearing on February the 11th, 1985. At the outset of the hearing, the respondent employer made an application for an adjournment on the basis that a party with an interest in the proceedings had not received notice thereof. The Board ruled on February 11th that the adjournment ought to be granted and promised the parties these written reasons to follow.
2The applicant union alleges that under the Provincial Collective Agreement between the Carpenters Employers Bargaining Agency (EBA) and the Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America, Local 18 of the Carpenters Union enjoys bargaining rights in the Hamilton area where a new hotel called the Venture Inn is being constructed. We were told that the evidence on the merits of the case would disclose that the employer has been hiring members of Local 675 of the "Carpenters Union" to do the drywall work on this project. The applicant, Local 1 8 claims that this practice violates the collective agreement by denying its members work, benefits and the control of its hiring hall. However, the union says it seeks only damages, not access to the work by way of redress.
3The employer argued that the application would inevitably affect the rights of the membership of Local 675 because, if the application is successful, members of Local 675 would be adversely affected by the loss of jobs and benefits. While it was acknowledged that the notice had been given to the employee bargaining agency, it was submitted that this could not be considered notice to Local 675 because the two locals were adverse in interest and, at best, the employee bargaining agency could only be considered as a neutral body.
4Further, the company argued that the case raised important jurisdictional issues with implications under section 150 of the Act and that Local 675 ought to have the opportunity to argue whether the work is governed by a residential or an industrial, commercial and institutional sector. The union argued that on this and the other issues, the employer would fully and adequately represent the position of Local 675 and that their presence was therefore not necessary.
5The adjournment was granted by the Board to enable notice to be given to Local 675 for the following reasons. This Board is reluctant to allow a union to make a claim under section 124 for damages only where access to the work is not being sought on an ongoing project. The Board clearly has jurisdiction under section 124 to declare that work protected under a collective agreement should be awarded to an applicant union. If the facts could support such a determination, and the Board were to determine that the applicant union is entitled to the work currently being given to Local 675, then the members of that local would be adversely affected by the loss of work opportunities, benefits and control of its hiring ball. The competing interest of Local 675 and Local 18 cannot be considered to be protected by their mutual bargaining agent which is, at best, neutral in this situation. Thus, notice given to that bargaining agency cannot be considered to be notice to the local in this particular fact situation. Further, it certainly cannot be accepted that the respondent employer can be expected to protect the rights of Local 675 in this case as the notice provisions are designed to ensure that an interested party can retain and instruct its own counsel or agent to protect its own particular interest in the way it chooses for itself.
6Thus, the case was adjourned to enable the Registrar of the Board to give notice of these proceedings to Local 675. Further, the case shall reconvene on March 1, 1985.