Ontario Labour Relations Board
[1986] OLRB Rep. November 1610
0483-83-M; 1938-86-JD Carpenters' District Council of Toronto and Vicinity on behalf of Locals 27 and 1304, United Brotherhood of Carpenters and Jointers of America, Applicant, v. West York Construction Ltd., Respondent, v. Metropolitan Toronto Apartment Builders' Association, Intervener, v. Labourers' International Union of North America, Local 183, Intervener #2, v. The Ontario Form Work Association, Intervener #3, v. The Form Work Council of Ontario, Intervener #4; West York Construction Ltd., Complainant, v. Carpenters' District Council of Toronto and Vicinity on behalf of Locals 27 and 1304, United Brotherhood of Carpenters and Joiners of America, Respondent(s), v. Metropolitan Toronto Apartment Builders' Association, Intervener, v. Labourers' International Union of North America, Local 183, Intervener #2, v. The Ontario Form Work Association, Intervener #3, v. The Form Work Council of Ontario, Intervener #4
BEFORE: Harry Freedman, Vice-Chairman, and Board Members D. A. MacDonald and N. Wilson.
APPEARANCES: Douglas J. Wray, James Smith and John Cartwright on behalf of the Carpenters' District Council of Toronto and Vicinity on behalf of Locals 27 and 1304, United Brotherhood of Carpenters and Jointers of America; Richard J. Charney and Karl Mallette on behalf of West York Construction Ltd., and Metropolitan Toronto Apartment Builders' Association; Carl W. Peterson and Ernesto Arduini on behalf of The Ontario Form Work Association; S. B. D. Wahl and R. Lotito on behalf of The Form Work Council of Ontario and Labourers' International Union of North America, Local 183.
DECISION OF THE BOARD; November 6, 1986
Decision
1The Board delivered the following oral decision at the hearing in these matters on November 3, 1986;
The Board has before it a referral of a grievance to arbitration under section 124 of the Labour Relations Act (Board File No. 0483-83-M) and a complaint over an assignment of work under section 91 of the Act (Board File No. 1938-86-JD). The grievance proceeding has been before the Board since June, 1983 and for a number of reasons, has not come before the Board for hearing until today. The complaint concerning the work assignment was filed in October, 1986.
Both the grievance and the work assignment complaint arise out of the subcontracting of concrete forming work in respect of the Kipling Acres Home for the Aged in Metropolitan Toronto. The grievance and the complaint have given rise to an issue as to whether the construction work done at Kipling Acres was work performed in the industrial, commercial and institutional sector or some other sector of the construction industry.
Counsel for the Carpenters' submits that the Board should proceed with the sector determination since that determination will be relevant, as all parties agree, to both proceedings.
Counsel for all of the other parties submit that the matter should be deferred until the report of the Industrial Inquiry Commissioner appointed by the Minister of Labour on November 4, 1985 is given to the Minister.
The terms of reference of the Commissioner are:
"Pursuant to section 35 of the Labour Relations Act, I hereby establish an industrial inquiry commission consisting of one member to inquire into and mediate an industrial dispute between the Metropolitan Toronto Apartment Builders Association and various trade unions engaged in concrete forming in the construction industry in Metropolitan Toronto, such commission to report to me indicating whether or not a settlement of the dispute has been effected."
We have been advised by the parties that the Industrial Inquiry Commissioner has been attempting to mediate the dispute referred to in the terms of reference of his appointment. Those mediation efforts have not been particularly active for the last several months. Nevertheless, his appointment has not been revoked and his report remains outstanding.
If is clear to us that the grievance and the work assignment complaint are manifestations of the dispute between the Metropolitan Toronto Apartment Builders' Association and various unions over concrete forming work. While a sector determination hearing at this point may help in getting to a resolution of the two proceedings that are presently before the Board, we believe that the issues in these two proceedings might be better resolved, if possible, through the mediation efforts of the Industrial Inquiry Commissioner. Obviously, any agreement satisfactory to all parties affected is preferable to a litigated decision that is imposed on them by the Board. The mediation process