International Union of Operating Engineers, Local 793 v. Labourers' Ontario Provincial District Council, 1988 CanLII 3624

Ontario Labour Relations Board

[1988] OLRB Rep. February 158

1774-87-JD International Union of Operating Engineers, Local 793, Applicant v. Labourers' Ontario Provincial District Council and Labourers' International Union of North America, Local 607 and Marine-Hamlyn Joint Venture, Respondents

BEFORE: R. 0. MacDowell, Alternate Chair and Board Members J. A. Rundle and J. Sarra.

APPEARANCES: Jack J. Slaughter, Richard Kennedy and Patrick Maley for the applicant; Lorne Richmond for Labourers' Ontario Provincial District Council and Labourers' International Union of North America Local 607; Carl Peterson for the respondent Marine-Hamlyn Joint Venture.

DECISION OF THE BOARD; February 22, 1988

I

1. The Labourers' Ontario Provincial District Council is hereby added as a party to these

proceedings.

2. This is a jurisdictional dispute filed pursuant to section 91 of the Labour Relations Act. The complainant union ("Local 793") and the respondent union ("Local 607") each claim certain work. For present purposes the precise nature of that work need not be defined. It suffices to say that both unions claim it as their own, and seek a Board direction requiring that it be assigned to their respective members.

3. This complaint was filed on September 30, 1987. Rule 60 of the Board's Rules of Procedure (respecting jurisdictional disputes) provides as follows:

A complainant shall file together with his complaint, and every person served with a notice of application shall file together with his reply,

(a) any union constitution;

(b) any collective agreement;

(c) any agreement or understanding between trade unions as to their respective jurisdictions on work assignment;

(d) any agreement or understanding between a trade union and an employer as to work assignment;

(e) any decision of any tribunal respecting work assignment; and

(f) any other document,

relating to the work in dispute which may be in his possession and upon which he proposes to rely in support of his claim for relief or his claim that the relief requested should not be granted, as the case may be, and a statement as to any area or trade practice relating to the work in dispute, and pictures, diagrams or drawings of the disputed work.

The complainant has not filed any union constitution, collective agreement, understanding between the unions respecting their work jurisdictions, the decision of any tribunal, or any other document relating to the work in dispute. Nor is there any useful statement as to area practice, or pictures, drawings or diagrams relating to the disputed work.

4. The respondent Local 607 filed a reply on November 16, 1987. The reply consists of a bald claim to the work in dispute "on the basis of the Board's criteria in determining complaints concerning work assignments". There were no supporting documents, union constitutions, collective agreements, etc. The reply was filed beyond the time prescribed in the Board's Rules.

5. Initially, the respondent employer filed no reply at all. Its reply did not surface until the pre-hearing conference which the Board eventually scheduled. The employer's reply identifies two entities known as the "Utility Contractors Association" and the "Pipeline Contractors Association of Canada" which the respondent employer claims may be affected by the complaint. There is no address for service for these bodies. There is no supporting documentation of the kind contemplated by Rule 60.

6. The Board's Rules contemplate the extension of time for the filing of material. A request for the extension of time which did not unduly prejudice other parties, or would, objectively, likely "save time in the end", would be viewed favourably by the Board and would, more likely than not, enlist the agreement of the other parties. Here there was no request to extend the time limits, even though, at the pre-hearing conference, counsel said they had difficulty, during this season, in gathering complete information from their northern advisors.

II

7. The Board's approach to the resolution of jurisdictional disputes has now been "formalized", and is expressed in Practice Note 15 which reads as follow

JURISDICTIONAL DISPUTE COMPLAINTS

1. The Board has adopted a pre-hearing conference procedure for jurisdictional disputes heard by the Board under section 91 of the Labour Relations Act. By this procedure, the factual and legal issues in the complaint can be identified and agreements reached upon matters not in dispute, thereby reducing the hearing time required for the case and the related expense to the parties. The conference can also be of assistance in facilitating settlement discussions.

2. The Board will normally convene a pre-hearing conference before a Vice-Chairman of the Board within twenty-eight days of the receipt of the complaint. However, where a strike is imminent, and consultation pursuant to section 91(8) takes place, the pre-hearing conference will normally be convened at a later date. At that pre-hearing conference, the Board expects the parties to be prepared to discuss the identification and simplification of the issues in the case, the number of days required for hearing and the fixing of a date or dates and a place for hearing and to agree to facts or other matters, not in dispute in order to facilitate the expeditious hearing of the complaint. The Vice-Chairman conducting the conference will not be a member of the panel hearing the complaint on its merits.

3. The parties are required to file their replies or interventions in accordance with the Board's Rules. Particular regard should be had to the requirements of Rule 60 which provides:

4. Where a hearing continues to be necessary following the pre-hearing conference, the Vice-Chairman convening the conference shall certify to the Registrar all agreements reached by the parties. Each party must file a pre-hearing brief seven days prior to the hearing which contains a concise statement of the issues in dispute, including a detailed description of the work in dispute, and the party's understanding of the material facts upon which it intends to rely. Should a party fail to file the required reply or intervention and pre-hearing brief, or fail to attend the pre-hearing conference, the Board may refuse to permit that party to adduce evidence at the hearing of any material fact not disclosed in the filings or at the pre-hearing conference.

5. Any party disputing the jurisdiction of the Board to deal with the complaint should notify the Board and the other interested parties at least ten days prior to the scheduled pre-hearing conference. Such notification must include a statement of the material facts upon which that party intends to rely to dispute the jurisdiction of the Board to hear the matter. Upon receipt of such notice, the Board will normally advise the parties that it will use the date and time scheduled for the pre-hearing conference as a hearing before a panel of the Board to deal with the issue of the Board's jurisdiction to entertain the complaint.

6. It is expected that this procedure will help to simplify jurisdictional dispute complaint hearings before the Board, and will facilitate the expeditious resolution of these complaints by the Board.

7. In accordance with Practice Note 15, the Board scheduled a pre-hearing conference in this case in order to explore the dimensions of this dispute, and canvass the possibility of narrowing the questions which would have to be litigated. The notice of pre-hearing conference from the Board's Registrar contains the following:

It is the intention of the Board to convene a pre-hearing conference before a Vice-Chairman of the Board in an attempt to narrow and identify the issues in dispute. The parties are requested to file, prior to this conference, a brief containing a concise statement of the issues in dispute as well as the parties' understanding of the facts pertinent thereto.

9. None of the parties filed briefs prior to the pre-hearing conference, and those briefs filed at the pre-hearing conference were decidedly "thin" and not particularly helpful. It was evident that the parties in this matter had either not turned their minds to the Rules, the Practice Note, and the Registrar's letter, or, alternatively, having done so, had decided to ignore all three. In the circumstances, the scheduled pre-hearing conference was a complete waste of the Board's time, and the public's money. It was little more than a forum for the exchange of documents which should have been exchanged earlier.

10. In response to questions from the Board about why the required material had not been filed, we were told that, in the past, the Board has been rather lax about requiring compliance with its Rules. We were told that the Board has not required strict adherence to its Practice Note. We were told that the Board has not obliged parties to comply with the filing requirements outlined in the Registrar's letter. We were told that the Board has always accepted material which was incomplete, filed late or otherwise did not comply with the Rules. We were told that the Board has not invoked the sanction of declining to consider the evidence of a party that fails to follow the prescribed procedure, nor, until recently, has it even been disposed to make explicit directions with respect to filings and pre-hearing discovery. And, as counsel for Local 607 so candidly put it: "Why should my client fully disclose its case if the other parties are not required to do so. If I do disclose my case in its entirety, the other parties may gain a tactical advantage, and tailor their pleadings and briefs according to what I have identified my position to be."

11. He is quite right of course. Whatever one might think of this "hide and seek" approach to litigation, if the Rules are to be applied, they must be applied even-handedly. There must also be well-recognized consequences for non-compliance. Otherwise, there might as well be no Rules at all.

III

12. Section 91 of the Act is framed in very broad terms. It permits a union to press a claim for work even though that union has no collective bargaining relationship with the employer or employees doing the work in question, simply because work of that kind, or similar work, has been done by that union's members in the past. The result has been a multiplication of the number and complexity of the cases brought before the Board under section 91.

13. Against this background, it is the opinion of this panel of the Board, that, where the Board has determined that it will embark on a jurisdictional dispute enquiry, its own Rules and Practice Note should be applied. The parties and the Board are entitled to pleadings which pinpoint the areas of factual or legal controversy, as well as those areas upon which the parties are in substantial agreement. Where necessary, a panel of the Board may also consider it appropriate to make additional directions in order to facilitate the orderly and expeditious resolution of the issues put before the Board for determination. There is no room in this equation for approaches which reward one party or another's disregard for the Rules in the hope of a tactical advantage.

14. We recognize, of course, that in preparing their briefs for a pre-hearing conference, one or more of the parties may not be in a position to make any definitive statement, for example, about "area practice", simply because that party may not have access to all of the relevant information. The material before the adjudicative panel may (and, if ordered, should) be more complete than that before the Board Vice-Chair conducting the pre-hearing conference. And if more time is needed to assemble the necessary material, a party should, if only as a matter of courtesy, alert both the Board and the other litigants of that problem. Nevertheless, this practical reality is no excuse for a complete disregard of the Board's Rules and Practice Note. Whatever laxity there has been in the past, it is the opinion of this panel of the Board that it should not be continued.

15. Since the sentiments expressed in this decision were expressed by this panel of the Board in open hearing, we do not think any procedural directions are now necessary.