[1987] OLRB Rep. April 632
1201-84-JD United Brotherhood of Carpenters and Joiners of America, Local 1190, Complainant v. Labourer's International Union of North America, Local 183; Lakeview Estates Ltd.; and 529126 Ontario Inc. carrying on business as Trimar Construction, Respondents v. Toronto Housing Labour Bureau, Intervener
BEFORE; N. B. Satterfield, Vice-Chair, and Board Members I. M. Stamp and C. A. Ballentine.
APPEARANCES: David A. McKee for the complainant; C. M. Mitchell, L. A. Richmond and M. Reilly for Labourer's International Union of North America, Local 183; M. G. Horan for Lake-view Estates Ltd.; Bruce Binning and Gordon Lavis for the intervener.
DECISION OF THE BOARD; April 13, 1987
The Board directs that the Toronto Housing Labour Bureau ("the Bureau") be and it is hereby made an intervener in these proceedings.
This is a complaint made under section 91 of the Labour Relations Act in which the complainant, United Brotherhood of Carpenters and Joiners of America, Local 1190 ("the Carpenters"), is requesting the Board to issue a direction with respect to certain work being performed by carpenters employed by 529126 Ontario Inc., c.o.b. as Trimar Construction ("Trimar") under subcontract from the respondent Lakeview Estates Limited ("Lakeview"). The complaint was filed by the Carpenters as a result of a grievance referred under section 124 of the Labour Relations Act by the Labourers alleging that Lakeview was bound to a collective agreement between the Labourers and the Bureau and had violated the subcontracting provisions of the agreement when it let a subcontract for house framing to a subcontractor not in a collective bargaining relationship with the Labourers. The referral named Trimar as a party which might be affected by it.
The Carpenters appeared at the hearing scheduled for the referral claiming that they held bargaining rights for Trimar's employees and that Trimar was the contractor complained of in the referral. The Carpenters sought status at the hearing for the sole purpose of raising the claim that the grievance was really a jurisdictional dispute. They were given status for this limited purpose and were successful in establishing a prima facie case that the grievance involved a dispute over the assignment of work. Accordingly, the hearing into the grievance was adjourned in order to permit the Carpenters a specific period of time in which to file a complaint under section 91 of the Act. This complaint was duly filed.
When the complaint came before the Board for hearing, counsel for the Labourers took the position that the Board should not entertain the complaint for two reasons. First, because it tacked jurisdiction under subsection 1 of section 91 to entertain it. Second, in the alternative, if the Board found that it did have jurisdiction to entertain the complaint, it should decline to do so. The labourers' reasons for contending that the Board should refuse to entertain the complaint were two-fold. The first reason was because the complaint was an abuse of the Board's process. The second reason was because, according to the Labourers, the underlying dispute was not one over work jurisdiction, but was a dispute between the Carpenters and Labourers as to which one of hem was going to represent carpenters and their apprentices in residential house framing carpentry. In other words, the dispute was really one over bargaining rights for carpenters and carpenters' apprentices in part of the residential sector of the construction industry and not over the assignment of that kind of work to one trade union or another. Counsel for the Bureau supported the position of the Labourers generally, but took the position that there was no need for the Board to concern itself with the question of whether it had jurisdiction in the first instance to entertain the complaint because the underlying issues were so patently of a representational nature rather than a work jurisdictional nature that, even if the Board had jurisdiction under subsection 1 of section 91, it should refuse to entertain the complaint.
The Board adjourned the issue of its jurisdiction under section 91(1) of the Act because of the non-attendance of a witness duly summonsed by the Carpenters whose evidence would be relevant and probative to that issue. The Board heard the full submissions of the parties on the exercise of its discretion whether to entertain the complaint and reserved its decision.
The factual context in which the complaint has arisen is undisputed. The Carpenters and Labourers began campaigns to organize employees doing framing carpentry in house construction in the Board's geographic area #8 in or about June, 1981. During the remainder of the year, the Board issued approximately 70 certificates to the two unions for bargaining units either of carpenters and carpenters' apprentices or construction labourers, carpenters and carpenters' apprentices in Board area #8. They each received about the same number of certificates. In about 15 cases, there were concurrent applications for certification by each union, so there was an obvious overlap in their campaigns. Six of the overlapping applications for certification resulted in prolonged litigation before the Board continuing until the end of October, 1983. The litigation involved charges by the Labourers of employer support for the Carpenters. The Carpenters eventually withdrew their applications for certification and the Labourers did not pursue the charges further. The Labourers ultimately were certified as bargaining agent for employees of five of the employers. One of these was a company called Montemar Construction Limited ("Montemar").
While that litigation was proceeding before the Board, both unions filed unfair labour practice complaints against each other and other parties. The Labourers filed a complaint in May 1983 which was an attack on all of the bargaining rights asserted by the Carpenters in house framing carpentry. The Ontario Carpentry Contractors Association and many of its contractor members whom the Association purports to represent, and for whose employees the Carpenters claim to be the exclusive bargaining agent, also were named as respondents. The Carpenters filed a complaint in June 1983 against the Labourers and the Bureau alleging that the Labourers had signed a document with the Bureau which purported to be a collective agreement covering carpenters and carpenters' apprentices despite the fact that the members of the Bureau were home builders, in other words developers, who did not employ carpenters. The complaint also alleged that the Labourers and the Bureau had executed the document during the course of a lawful strike by the Carpenters and had included in the document a subcontracting provision, the effect of which was to freeze out the contractors whose employees were represented by the Carpenters.
At about the same time as the Carpenters' complaint was filed, the Labourers filed five complaints against the Carpenters and various of their representatives and agents alleging that the strike in which the Carpenters were engaging was a strike promoted by the employers, was unlawful and was an attempt to frustrate the Labourers' bargaining rights.
All of the foregoing complaints were adjourned sine die before the calling of evidence was completed, with the consent of the parties.
Five days after the Labourers had filed the grievance referral against Lakeview, they filed an application under section 1(4) of the Act seeking to have Montemar and Trimar declared to be one employer for purposes of the Act. Before that application came on for hearing before the Board, the Labourers filed a new complaint under section 89 of the Act alleging many of the same facts as had been the subject matter of the charges in the litigation in the six overlapping applications for certification as well as some of the adjourned section 89 complaints. The section 1(4) application and the new section 89 complaint were listed for hearing together and first came on for hearing before a different panel of the Board on the day before the hearing of the instant complaint. The Carpenters sought to intervene in the section 1(4) application on the grounds of the bargaining rights they were asserting on behalf of the employees of Trimar. The Labourers contested the Carpenters' claim on the grounds that the agreement had been obtained with employer support. The Labourers base that claim on the same facts alleged in their new section 89 complaint which, as noted above, are a revival of the charges filed by the Labourers, but not decided, in the six competing applications for certification.
The facts alleged in the Labourers' adjourned unfair labour practice complaints, the section 1(4) application and the new section 89 complaint and the facts alleged in the Carpenters' adjourned unfair labour practice complaints and its jurisdictional complaint herein are similarly worded attacks on the bargaining rights asserted by each union and on their alleged collective agreements with the respective employer associations which are parties to those agreements.
Schedule "B" to the complaint herein requests the following relief:
"1. An Order requiring Thmar Construction to continue to assign the work to members of the Complainant.
A Declaration that the purported Collective Agreement between Lakeview and Local 183 is null and void.
In the alternative, a Declaration that the sub-contracting clauses in the said purported Collective Agreement are null and void and of no force and effect.
An Order requiring Local 183 to cease and desist from requiring Lakeview or any other contractor of Lakeview not in contractual relations with Local 183 to assign work to members of Local 183."
Counsel for the Labourers and the Bureau made separate submissions on the question of whether the Board should refuse to entertain the complaint, but the thrust of their arguments was the same or similar and generally they endorsed each other's submissions.
With respect to the claim that the complaint really involves the fight between the Labourers and the Carpenters over who will represent carpenters in house framing rather than a dispute over what group of employees will do the work, Local 183 and the Bureau point to all of the litigation referred to above as demonstrating a hotly contested campaign between the two trade unions to gain bargaining rights for carpenters and carpenters' apprentices employed by contractors engaged in house framing carpentry in low-rise residential construction. Those two parties submit further that three of the four items of relief sought by the Carpenters, being items 2, 3 and 4 of Schedule 'B' quoted above, demonstrate that even the complainant sees the complaint as representational in nature. The Labourers and the Bureau argue, in these circumstances, that the board should not entertain a jurisdictional complaint within a single trade, in this case house framing carpentry, where one group of employees supports one trade union and another group supports a different trade union. The example of the cement masons' trade was cited. The Operative Plasterers and Cement Masons International Association of the United States and Canada and the Labourers' International Union of North America have competed for many years to represent the employees in the trade. It is argued that the Board would not entertain a complaint over a dispute about which one of those trades was to be assigned the work of cement masons. That is because, in part at least, section 91 of the Act was not intended to deal with disputes over which trade union was going to represent an entire trade or a major segment of an entire trade. Rather, it is argued, section 91 is intended to deal with the more peripheral overlaps in the work jurisdictions claimed by two or more trades.
With respect to the contention that the complaint is an abuse of the Board's process, it Is argued that the Carpenters are seeking to use the section 91 process to do what, so far, they have been unable to do by their unfair labour practice complaints filed under section 89 of the Act. In other words, the Carpenters are seeking to use the processes of the Act designed to resolve disputes over work assignments for the purpose of striking down the collective agreement between the Labourers and the Bureau and avoiding the Labourers' challenge of the collective agreement between the Carpenters and Trimar which is part of the section 1(4) application still before another panel of the Board. The Labourers and the Carpenters contend that the proper forum for dealing with those issues are the sections of the Act under which the issues were first raised and not section 91, particularly when other panels of the Board are already seized with those issues. Seeking to use section 91 for those purposes is alone an abuse of the Board's processes, but further abuse would result from the disrespect which would be caused for the section 91 process by allowing it to be used for purposes other than the resolution of work assignment disputes. It is argued that this is because of concern in the construction industry for the length and cost of proceedings under that section.
Counsel for the Labourers cited as examples of the Board having exercised its discretion under section 91(1) to refuse to entertain complaints, the following Board decisions: F. A. Acton, [1969] OLRB Rep. Feb. 1216; Omega Marble Company Ltd., [1970] OLRB Rep. May 231; and, Comstock International Limited, [1982] OLRB Rep. June 854. Labourers' counsel also relies on the Board's decision in Napev Construction Ltd., [1980] OLRB Rep. Feb. 247 for the proposition that section 91 does not give the Board discretion to hear every complaint which might involve a competition between two trade unions for employees in the same trade. Finally, counsel for the Labourers and the Bureau rely on the Board's decision in Simcoe Mechanical Contracting Limited, [1982] OLRB Rep. Sept. 1352 for the proposition that section 91 cannot be used as a substitute for those sections of the Act which specifically deal with representation issues when the dispute underlying the complaint is really a dispute between two trade unions as to which one will represent the employees in a particular trade. The view of that decision taken by counsel for the Labourers is that the Board, having found that the dispute was really a contest between the two trade union parties to it over which of them would represent pipefitters in collective bargaining in Ontario, and not a test of whether the members of one trade union were better equipped than the members of the other one to do the work in question, declined to make a jurisdictional order. Counsel for the Bureau argues that a fair reading of the decision leads to the inescapable conclusion that the Board, if faced with a fresh complaint involving the same parties, would refuse to entertain it because the dispute involved what is inherently a representation issue; that is, the dispute deals with a complete overlap of one trade union's work jurisdiction claim with that of the other.
636
There is no doubt that the Board has exercised its discretion under section 91(1) in a variety of situations, to decline to entertain complaints made under section 91 of the Act. Apart from Simcoe Mechanical, supra, the decisions on which the Labourers and the Bureau rely are so readily distinguishable on their facts that they are of little assistance to the Board in the instant case, except as support for the general proposition that the Board has declined to entertain complaints under section 91 of the Act even where it has jurisdiction to entertain them. The Board's decision in Napev Construction, supra, did involve two trade union parties, both of which are bargaining agents for bricklayers in the construction industry. The Board was not deciding in that case, however, whether to exercise its discretion. Rather it was deciding whether it had jurisdiction at all under section 91(1) of the Act. It found that it did not have jurisdiction because there had been no demand that the work be assigned to the members of one trade union instead of to the members of the other. While the Board did note in the course of deciding the case ". . .that each trade union is centrally based on the same trade skills which is unlike the more conventional nature of jurisdictional conflict.", it would not be reasonable to conclude from the decision that the Board would have exercised its discretion not to entertain the complaint had it found the jurisdiction to do so.
The dispute in the Board's decision in Simcoe Mechanical, supra, involved a claim by the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46 ("Local 46") for certain plumbing and pipefitting work which the employer, Simcoe Mechanical, had assigned to its employees who were members of the Christian Labour Association of Canada ("the C.L.A.C."). In the course of deciding the complaint on its merits, the Board stated in part as follows at paragraphs 31 and 32:
In many respects this complaint is not a typical complaint under section 91. In this complaint the Board is dealing with competing claims for the work in dispute based not upon a trade or test of useful skill, but rather on the basis of union membership. The employees of Simcoe have elected the C.L.A.C. more than a decade ago as their bargaining agent, and have on two occasions rejected an attempt by the locals of the United Association to displace the C.L.A.C. as their bargaining agent in secret ballots conducted by the Board....
As the Board noted earlier, this complaint is not a typical complaint under section 91 of the Act. Certainly there are two trade unions which earnestly seek the work in dispute. However, the work in dispute falls squarely within the trades of plumbing and pipefitting, and is most certainly not marginal and not peripheral to those trades. The essential question of the skills involved underlines the fact that this complaint is essentially representational in nature rather than jurisdictional....
Because of that aspect of the complaint, the Board was not prepared to give paramount weight to "area practice", one of several criteria which the Board takes into account in work assignment disputes in the construction industry, because the area practice criterion would so overwhelmingly support Local 46's claim that it would likely lead to the C.L.A.C. members losing plumbing and pipefitting work throughout Ontario. After assessing all of the criteria and giving limited weight to area practice, the Board found that the criteria favoured an assignment of the work in dispute to members of the C.L.A.C. Therefore, "...having regard to its view of the underlying nature of this proceeding before the Board,..", it directed that Simcoe Mechanical should continue to assign the disputed work to members of the C.L.A.C.
- Before that complaint got to a hearing on its merits, a different panel of the Board had to decide a dispute over the Board's jurisdiction under section 91(1) of the Act to hear the complaint. See the Board's decision in Simcoe Mechanical Contracting Limited, [1981] OLRB Rep. July 1004. Counsel for Simcoe Mechanical had urged the Board ". . in characterize the dispute between [the] two trade unions in this case as a representation dispute, and thus, decline to deal with it as a dispute concerning work assignment under section 81 [now section 91].". Counsel for the C.L.A.C. adopted the same position and argued further that section 91 ought not to be used to alter bargaining rights. The argument is described at paragraph 4 of the decision in the following terms:
The Board found at paragraph 8 that it had jurisdiction to hear the complaint stating:
He thus argued that the overall scheme of The Labour Relations Act deals substantially with representation issues and that section 81 [now section 91] ought to be interpreted in that context, thus, where bargaining rights might be altered the Board does not have the jurisdiction to deal with that under section 81 [now section 91] of the Act. In short, if Local 46 of the Plumbers wants to displace CLAC they ought not to be able to do it under the guise of section 81 Inow section 91] but should use the certification mechanism set out in the Act. At the conclusion of the hearing on this preliminary point, the Board by an oral decision, found that the Board had jurisdiction under section 81(1) [now section 91(1)1 to entertain the present complaint. Simply put, the arguments of both the respondents concerning the representational rather than the jurisdictional nature of the present case are arguments which go to the mertis [sic] of the case. Whether or not the Board decides to give a remedy which overrides existing representational rights is a matter for the panel hearing the merits of the present case....
The Board made this further conclusion about the representational nature of the complaint at paragraph 9:
We now turn to the other argument of the respondents, that the present complaint is a representation complaint rather than a jurisdictional dispute, and that section 81 [now section 91] should not be given so broad an interpretation as to render meaningless those sections of The Labour Relations Act relating to certification proceedings. We are of the view that these arguments go to the merits of the dispute and to the form of remedy which the Board might grant the complainant. They do not, however, go to the preliminary issue of whether the Board has the statutory power to entertain such a complaint as filed by the complainant in the present case. In this regard, we are compelled to note that section 81 [now section 91] must give the Board broad powers to entertain such complaints in order to be effective as an alternative to jurisdictional work stoppages.
Since there will be need for further reference to both Simcoe Mechanical decisions, for ease of reference, Simcoe Mechanical Contracting Limited, [1981] OLRB Rep. July 1004, will be referred to as Simcoe Mechanical No. 1 and Simcoe Mechanical Contracting Limited, [1982] OLRB Rep. Sept. 1352, will be referred to as Simcoe Mechanical No. 2.
There is little room for doubt that a contest existed between the Labourers and the Carpenters over which of them would represent house framing carpenters at the time this complaint was made. Elements of that contest clearly have been drawn into the complaint by some of the relief sought by the Carpenters. But are these circumstances reason for the Board to exercise its discretion so as to refuse to hear the complaint? The Board thinks not.
The Board's discretion whether to entertain complaints over disputed work assignments comes from section 91 which provides:
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.
Once the preconditions have been satisfied for bringing a complaint within the purview of subsection 1, and subject to subsection 14, the Board has apparently unfettered discretion respecting both whether it will inquire into the complaint in the first instance, and if it does, the scope of its inquiry. Subsection I deals, amongst other things, with disputes between trade unions about whether the members of one trade union or another will perform a particular kind of work. The remaining subsections deal with how the Board is to apply and enforce its general powers in subsection 1.
The Board was given the statutory jurisdiction for dealing with work assignment disputes in 1966, and in 1970 subsection 1 was amended to give the Board jurisdiction in circumstances where an employer employed only one of the disputing groups of employees. One significant effect of the change has been to enable the Board to entertain work assignment disputes in circumstances where the employer assigning the work is a "single-trade" employer. That is, an employer who normally employs persons in one trade or craft. This would include many specialty contractors in the construction industry who normally get most of their work by taking sub-contracts from a general or prime contractor on a project. Prior to the amendment, the Board was limited to entertaining complaints to those situations where the employer making the disputed assignment employed members of the disputing unions, trades, crafts or classes. This limitation arose from a judgement of the Supreme Court of Ontario in R. v. Orliffe, ex.p. Can. Pittsburgh Industries Ltd., (1961) O.W.N. 223, 61 CLLC ¶15,373 (Ont. H.C.). The limitation meant that only a general or prime contractor on a construction project was likely to be subject to what is now section 91(1), and then only when the disputed work was being performed by his own forces. Since these contractors frequently subcontracted work to single-trade, specialty contractors, if the specialty contractors employed different trades for the work than the general or prime contractors would have used, the seeds of potential work jurisdiction disputes were sewn. Since such disputes were beyond the reach of section 91 when they did erupt, it was not unusual for the trade unions which did not get the work to resort to unlawful actions to regain it. The expanded jurisdiction made it possible for the Board to deal with jurisdictional disputes arising out of the subcontracting of work. It is generally accepted that the object of this expansion of jurisdiction was to make section 91 an effective alternative to work stoppages as a means of "resolving" work assignment disputes. That, too, has guided the Board in its interpretation and application of the section, particularly subsection 1. See, for example, the final sentence of paragraph 9 quoted above from Simcoe Mechanical No. 1.
Section 91 is set in a statutory framework which does not give any trade union a monopoly to represent particular kinds of employees or employees doing a particular kind of work (see, Duron Ontario Limited, [1976] OLRB Rep. Nov. 734), although the Province-Wide Bargaining part of the Act does impose some limitations on employees' choices of the type of trade union which can represent them in the industrial, commercial and institutional sector of the construction industry. But for that kind of statutory framework, it is unlikely that the Labourers could have been in a position in 1981 to become the exclusive bargaining agent for bargaining units of carpenters. For purposes of clarity and as the Act now stands, it should be noted that the Labourers, being an affiliated bargaining agent within the meaning of clause (a) of section 137(1) of the Act, cannot lawfully represent in collective bargaining in the industrial, commercial and institutional sector of the construction industry employees in trades other than construction labourer. Nor can any other trade union which is an affiliated bargaining agent lawfully represent in collective bargaining in the industrial, commercial and institutional sector of the construction industry, employees in any trade other than its own. The fact that the Act does not grant a monopoly to particular trade unions to represent employees who perform a particular kind of work explains why the Labourers or the Operative Plasterers can be bargaining agent for employees engaged in cement finishing, whether they are described as labourers or cement finishers. It also explains why there could be two unions representing pipefitters in Simcoe Mechanical No. 2, supra, and two unions representing bricklayers in Napev Construction, supra. It should not be surprising then, that from time to time, representational contests will be at the root of, or a significant element in, a work assignment dispute.
Such was the case in the Simcoe Mechanical decisions. Furthermore, from time to time, Board decisions have acknowledged that there is a jurisdictional dispute element to a representation application. Typically, in the construction industry, the Board sees this occurring when a trade union applies for certification for its trade and another trade union intervenes in the application claiming that it already represents, under a collective agreement, the employees of the employer who are the subject of the application. Such interventions are founded frequently on a claim that the work being performed by the employees on the making of the application is work of the intervener's trade covered by its collective agreement with the employer. Therefore, while these interventions, by their very nature, are claims that the intervener holds bargaining rights for the employees in question, they are founded, in part at least, on claims of jurisdiction over the work. n applications for certification, these issues are not settled on the basis of which union has the better claim to do the work (which is the usual result of a section 91 determination on the merits), rather they are resolved on the basis of whether the applicant trade union can establish by evidence that members of its trade have performed the work sufficiently for the Board to find it is work coming within its trade, even though it may be work claimed by the intervener. Subsections 15 and 8 seem to give some recognition to this inter-relationship between representation rights and work jurisdiction claims. These sections give the Board the power to alter bargaining unit descriptions where conflicting descriptions are found in certificates issued by the Board or in collective agreements. Within that sort of legislative framework, then, the mere existence of a representation contest should not be reason alone for the Board to refuse to entertain a section 91 complaint.
While the Board in Simcoe Mechanical No. 1 was dealing with an issue of its primary jurisdiction under section 91(1) and not the exercise of its discretion, it clearly repudiated the argumnent that the alleged representational character of the dispute was a matter to be dealt with under those sections of the act designed for representation issues to the exclusion of section 91. That stance, in our view, is consistent with how the Board resolves competing representation claims in an application for certification when one of the claims is founded on an assertion of jurisdiction over the work being performed on the date of making of the application (see paragraph 25 above). The Board, in the Simcoe Mechanical case, saw the issue as one going to the merits of the complaint and to the form of remedy which might be granted and not to the preliminary issue of the Board's jurisdiction. In coming to that conclusion, the Board took account of its broad powers under section 91 to entertain such complaints and the need for those powers to make section 91 ".. .effective as an alternative to jurisdictional work stoppages.". While it does not seem from the decision that the question of the Board's discretion under section 91(1) was argued in that case, the Board herein thinks that the reasoning in Simcoe Mechanical No. I is equally applicable to the exercise of the Board's discretion. We think that reasoning tips the scales in favour of the Board entertaining the complaint, assuming it has jurisdiction under section 91(1), and dealing with the ''representation issue'' as going to the merits of the work assignment dispute and to the form of remedy. For the Board to refuse access to section 91 because the two trade union parties to the complaint are engaged in a representation contest would be inconsistent with a statutory scheme which does not give a monopoly to any trade union to represent a particular kind of work and which provides, as an alternative to jurisdictional work stoppages, a mechanism for resolving work assignment disputes between trade unions. In that kind of statutory framework, it seems to the Board that it makes no material difference whether the work assignment dispute arises over work falling wholly within a single trade represented by two or more competing trade unions, or over work within an overlap at the periphery of the work jurisdictions claimed by two or more different trades.
The Board does not think that the decision in Simcoe Mechanical No. 2 suggests the contrary. If counsel for the Labourers, when he stated that the Board "declined to make a jurisdictional order", meant the Board did not make an order that would have given either the C.L.A.C. or Local 46, as between those two unions, jurisdiction throughout the Board's geographic area #8, we agree. What clearly it did, however, was take into account the representational character of the dispute when it weighed the criteria normally considered by the Board in deciding work assignment disputes and in the type of order it made. Having found that the criteria favoured continuation of the work assignment to the employer's employees represented by the C.L.A.C., the Board directed that the assignment be maintained on that project. Thus, the representational element of the dispute did, in the words of Simcoe Mechanical No. 1, "...go to the merits of the dispute and the form of remedy which the Board might grant
For the foregoing reasons, the Board does not find the representational aspect of this complaint sufficient cause to refuse to entertain the complaint.
That leaves the issue of whether the Board should refuse to entertain the complaint because it is an abuse of the Board's process. For the following reasons, the Board thinks that this issue also is more appropriately dealt with in the course of hearing the complaint on its merits. On the evidence before the Board, it seems like each union has foregone no opportunity to launch attacks on the bargaining rights of the other in the hopes of extinguishing those rights. Until their respective rights are terminated by some legitimate process, they are entitled to seek to protect those rights by the various processes open to them under the Act. Sometimes that gives them a choice as to the section of the Act to invoke. This does not mean that they can keep raising the same allegations which they have raised before, but, for their own reasons, have not pursued to final determination when they have had the opportunity to do so. That kind of conduct is something which a hearing panel can deal with in deciding whether, in the first instance, evidence on such allegations should be admitted and, if it is, the conditions under which it will be admitted. For example, if the instant complaint is heard on its merits, the hearing panel might decide to limit evidence on each union's collective agreement to proof that they are collective agreements as defined by section 1(1)(e) of the Act. On the other hand, if the panel decided it had to know more about how those agreements came into being, it might choose to hear evidence on some of the old charges and counter-charges.
This complaint has its origin in the Labourers' grievance referral under section 124 of the Act. That grievance alleged that Lakeview had contravened the subcontracting terms of the agreement between the Bureau and the Labourers. The grievance, prima facie, is a legitimate attempt to protect the security of the Labourers' bargaining rights and the work opportunities of their members. The Board has found collective agreement limitations on subcontracting for those purposes to be legitimate. The Carpenters, in turn, have seen the grievance as a threat to their own claim over the work involved for the benefit of their members. They have chosen to move under section 91 to protect their claim. Their complaint, prima facie, is also a legitimate attempt to preserve their own claim to framing carpentry work. By the nature of the arbitration process, the Carpenters cannot be a party to the grievance referral, so their claim to rights respecting framing carpentry could not be heard in proceedings under section 124 of the Act. Nor can Trimar, the contractor alleged to be performing the disputed work, be a party to those proceedings and have its interests heard. The section 91 process accommodates all parties whom the Board finds to have an interest, even though the interest may not be a direct legal one. The Board does not think it would be appropriate to deny the Carpenters access to that process on the preliminary motion that some of the facts alleged in the complaint and some of the relief sought may be grounds for finding an abuse of process. In the Board's view, that question is better decided, if necessary, in the course of deciding the complaint on its merits or in framing the form of relief to be granted.
The Board is constrained to observe, however, that it may be difficult in the circumstances of this case for either the Carpenters or the Labourers to demonstrate that their members re entitled as of right to perform the work in dispute. Or, to put it another way, the relevant facts may demonstrate that the members of either union can perform the work. While such a result right seem to foretell a result similar to that in Simcoe Mechanical No. 2, supra, that or any other conclusion must be based on an assessment of the merits after weighing the criteria relevant to the determination of work assignment disputes.
In all of the circumstances of this complaint and for the foregoing reasons, the Board will not exercise its discretion under subsection 1 of section 91 to refuse to entertain this complaint. In the result, the Registrar is directed to relist the complaint for hearing before a panel of the Board. The purpose of the hearing is to receive the evidence and representations of the parties on whether the Board has jurisdiction under section 91(1) of the Act to entertain the complaint, and, if it does, the hearing will continue as a pre-hearing conference pursuant to Practice Note #15 of the Rules of Procedure, Regulations and Practice Notes under the Act.