Ontario Labour Relations Board
[1986] OLRB Rep. October 1386
1516-86-M Ontario Sheet Metal Workers Conference, Applicant, v. Ontario Hydro and Electrical Power Systems Construction Association, Respondents
BEFORE: Judith McCormack, Vice-Chairman, and Board Members F. W. Murray and C. A. Ballentine.
APPEARANCES: B. D. WahI, Gec. Ward and Robert Brown for the applicant; H. A. Beresford, I.A. Starasts, T. F. Williams, T. D. McKee and S. D. Goldsworthy for the respondents; A. J. Ahee and N. W. Meikle for the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527.
DECISION OF THE BOARD; October 29, 1986
[1]. This is a referral of a grievance to arbitration pursuant to section 124 of the Labour Relations Act. The applicant contends that the assignment of certain aspects of the construction of an emergency filtered air discharge system at the respondent Ontario Hydro's Bruce Nuclear Power Development to the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527 ("United Association") constitutes a breach of the collective agreement between the applicant and the respondents. The applicant gave notice of these proceedings to the United Association who appeared at the hearing. Without deciding the issue of the United Association's standing generally in this matter, the Board allowed the United Association to make submissions on a preliminary matter raised by the respondents.
[2]. At the commencement of the hearing, the respondents raised an objection to the jurisdiction of the Board, namely that the subject of the grievance was in essence a jurisdictional dispute. The effect of this, it was contended, was to deprive the Board of jurisdiction to hear the grievance under section 124, and consequently the current proceedings should be terminated. The United Association took a similar position, and in the alternative, argued that the section 124 referral should be adjourned in deference to the dispute resolution mechanism for work assignments contained in the collective agreement between the applicant and the respondents. (We use the broad term "dispute resolution mechanism" because the nature of those provisions is also contested.)
[3]. In response, the applicant argued among other things that the Board had jurisdiction under section 124 because the grievance alleged a violation of the collective agreement, and that the dispute resolution mechanism contained in the collective agreement either did not have to be utilized or had already been exhausted for a variety of reasons. Neither party nor the United Association have filed or intend to file a complaint under section 91 of the Labour Relations Act which provides for the resolution of jurisdictional disputes. There was an exchange of correspondence between the Plan for the Settlement of Jurisdictional Disputes, the parties and the United Association although the character and impact of this exchange is in dispute.
[4]. In the course of the submissions on this preliminary issue, it became apparent that at least the applicant and the United Association were relying to a significant extent upon facts which were contested. However, the respondents objected to the hearing of evidence on the disputed facts on the basis that they were irrelevant. By the time the parties and the United Association had addressed the question of relevancy, it was late in the day and the Board reserved its decision on the evidentiary point. We trust that this interim ruling will be of some assistance to the parties in reviewing their positions on the preliminary objection as well.
[5]. The essence of the respondents' evidentiary objection is that because the substance of the grievance relates to a jurisdictional dispute, the jurisdiction of the Board under section 124 is ousted. As a result, it is irrelevant whether the problem can be or should be resolved by either an application under section 91 or by a reference to the dispute resolution mechanism provided in the collective agreement. Therefore, counsel argued, it is not necessary to hear evidence on the facts in 4ispute which relate largely to the arguments of the applicant and the United Association with respect to the dispute resolution mechanism in the collective agreement.
[6]. The purpose of section 124 is to provide a speedy and economical route for the resolution of grievances in a sector where