[1987] OLRB Rep. August 1053
0315-86-M Quality Control Council of Canada, Applicant v. Babcock and Wilcox Canada Ltd., Respondent
BEFORE: Robert D. Howe, Vice-Chair, and Board Members I. M. Stamp and C. A. Ballentine.
APPEARANCES: Paul Timmins, Man Bakker and J. Russ St. Eloi for the applicant; H. Beresford, D. T. Butt, D. M. Sanderson, D. McIntyre, T. Griffith and C. Chenoweth for the respondent.
DECISION OF THE BOARD; August 6, 1987
This is a referral of a grievance to the Board under section 124 of the Labour Relations Act. The grievance alleges that the respondent has violated Articles 3, 16, and 25 of a collective agreement between the applicant and the Non-Destructive Testing Management Association (the "Association").
During his opening statement to the Board on June 23, 1987, counsel for the respondent raised the matter of notice to the Association. After reviewing the file and considering the submissions of the parties concerning that matter, the Board made the following unanimous oral ruling, which is hereby confirmed:
We are satisfied that the Non-Destructive Testing Management Association has been given adequate notice of these proceedings.
In a decision dated June 26, 1987, concerning this referral, we wrote, in part, as follows:
This is a referral of a grievance to the Board pursuant to section 124 of the Labour Relations Act.
We have decided to reserve our decision regarding the "preliminary matters" raised by counsel for the respondent on June 23, 1987, and to proceed with the hearing of this referral.
Having now had an opportunity to further consider those "preliminary matters", we have reached the conclusions set forth below.
On January 26, 1983, another panel of the Board accredited the Association as the bargaining agent for all employers of non-destructive testing technicians, trainees and helpers for whom the respondent has bargaining rights in the Province of Ontario in the industrial, commercial and institutional sector, the sewers and watermains sector, the roads sector, the heavy engineering sector, the pipeline sector, and the electrical power systems sector in the construction industry. The accreditation certificate (Exhibit 4 in these proceedings) lists "Babcock & Wilcox Canada" as one of the employers for whom the Association became the bargaining agent under that certificate. It is common ground between the parties that, as a result of that accreditation certificate, the December 1, 1984 to November 30, 1986 collective agreement (Exhibit 5) between the applicant and the Association was binding upon the respondent in respect of construction industry work at the time of the grievance. (For ease of exposition, that document is referred to in this decision as the "Quality Control Agreement".) However, the issue of whether that document also binds the respondent in respect of non-construction work performed in the field is in dispute.
The applicant contends that by virtue of an agreement (Exhibit 1 in these proceedings) dated June 13, 1980 between the applicant and the respondent, and a letter of clarification (Exhibit 3) dated July 9, 1980, from J. R. Ashton to J. Russ St. Eloi, the respondent is bound by the terms of the Quality Control Agreement in respect of "New Construction, Repair, Revamp and Maintenance Work performed by the [respondent's] Construction operations in the field". In this regard, applicant's counsel submits that the Quality Control Agreement is either a single collective agreement covering all of that work, or two collective agreements (contained in a single document), one of which pertains to construction work, and the other of which pertains to non-construction work performed in the field.
Counsel for the respondent disputes the applicant's position, and contends that the respondent is only bound by the Quality Control Agreement in respect of work in the construction industry. He further submits that the grievance pertains exclusively to non-construction work, and that the Board lacks jurisdiction under section 124 to hear it. In support of that position he referred the Board to The Master Insulators Association of Ontario, Inc., [1980] OLRB Rep. Oct. 1497, and Inscan Contractors (Ontario) Inc.,[1986] OLRB Rep. May 640.
Counsel for the applicant contends that the Board does have jurisdiction to hear and determine this referral under section 124 of the Act. He advised the Board that it is his client's position that the work involved "may well include a construction component", but also indicated that the applicant does not have sufficiently detailed information about the work to know if it is construction or non-construction. In support of the applicant's position, counsel referred the Board to Carroll Electric (1982) Limited, [1983] OLRB Rep. Aug. 1282.
The aforementioned two decisions to which respondent's counsel referred in argument (The Master Insulators Association of Ontario, Inc., and Inscan Contractors (Ontario) Inc.) provide useful guidelines for distinguishing between "repair", which is generally construction work, and "maintenance", which is generally non-construction work. (See in this regard section 1(1)(f) of the Act). However, we do not find those decisions to be of assistance in resolving the "preliminary issues raised by the respondent in respect of our jurisdiction to hear this referral under section 124, as they do not purport to determine whether or not the Board's jurisdiction under that provision is confined to grievances which pertain exclusively to construction work, as contended by the respondent.
Section 124(1) provides as follows:
Notwithstanding the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 44, a party to a collective agreement between an employer or employers' organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable, to the Board for final and binding determination.
That provision permits "a party to a collective agreement between an employer or employers' organization and a trade union or council of trade unions" to refer a grievance concerning that agreement to the Board for final and binding determination. Section 117 of the Act provides, in part, as follows:
In this section and in sections 118 to 136,
(a) "council of trade unions means a council that is formed for the purpose of representing or that according to established bargaining practice represents trade unions as defined in clause (f);
(c) "employer" means a person who operates a business in the construction industry, and for purposes of an application for accreditation means an employer for whose employees a trade union or council of trade unions affected by the application has bargaining rights in a particular geographic area and sector or areas or sectors or parts thereof;
(d) "employers' organization" means an organization that is formed for the purpose of representing or represents employers as defined in clause (c);
(f) "trade union" means a trade union that according to established trade union practice pertains to the construction industry.
The applicant, which is composed of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, is a "council of trade unions" within the meaning of section 117(a). The respondent "operates a business in the construction industry" and, accordingly, is an "employer" within the meaning of section 117(c). In this regard, we note that the section 117(c) definition of employer is not limited to persons who operate a business exclusively in the construction industry (see Carroll Electric (1982) Limited, supra, at paragraph 16); indeed, it is well established in the Board's jurisprudence that to be operating a business in the construction industry does not require that the "construction" business be the primary or predominant business of the employer, or the "general nature" of the employer's business: see, for example, Abitibi-Price Inc., [1986] OLRB Rep. Dec. 1613, at paragraphs 38 - 43. It is also clear from the fact that the Association has been granted accreditation by the Board (under section 127 of the Act) that it is an "employers' organization" within the meaning of section 117(d). Thus, in the instant case, the applicant, which is a party to a "collective agreement" (the Quality Control Agreement) between an "employers' organization" (the Association) and a "council of trade unions" (the applicant), within the meaning of section 124, has referred to the Board a grievance concerning the interpretation, application, administration or alleged violation of that agreement, which is undisputedly binding upon the respondent in respect of construction work, and which, if the applicant's position proves to be valid, may also be binding upon it in respect of "maintenance" work. Accordingly, we are satisfied that we have jurisdiction to hear and determine the grievance under section 124. (See, generally, Carroll Electric (1982) Limited, supra, at paragraph 16, in which the Board held that it had jurisdiction under section 124 to hear a grievance which pertained to both construction and non-construction work, where the applicant, which was a "trade union" within the meaning of section 117(f), had a collective agreement with the respondent, which was an "employer" within the meaning of section 117(c).) If the applicant's alternative position proves to be valid, with the result that there is a separate collective agreement (included in Exhibit 5) binding upon the applicant and the respondent in respect of "maintenance" work, it may be that the Board would still have jurisdiction to hear and determine the grievance under section 124, as that agreement would be a collective agreement between an "employer" (the respondent) or an "employers' organization" (the Association), and a "council of trade unions" (the applicant), within the meaning of section 117. However, it is unnecessary to decide that issue at this point in the proceedings.
If, as contended by the respondent, the Quality Control Agreement applies only to construction work, and all of the work covered by the grievance is non-construction work, the grievance may ultimately be dismissed. However, those are matters which form an integral part of the merits of the grievance, and can only be determined after hearing the evidence and submissions of the parties concerning the grievance.
The Registrar is directed to list this matter for the purpose of hearing the evidence and representations of the parties with respect to all outstanding matters arising out of and incidental to this referral. If, in view of the appointment of Board Member I.M. Stamp as a Vice-Chair effective September 21, 1987, the parties consent to the substitution of another Board Member to replace her (or to the substitution of two other Board Members to replace Board Members Stamp and Ballentine), the hearing will proceed before a panel chaired by the writer. Otherwise, the proceedings will be scheduled before an entirely new panel.