Ontario Labour Relations Board

[1988] OLRB Rep. November 1164

1067-88-G; 1068-88-G; 1465-88-JD United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. Dufferin Construction Company, Respondent; United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. The Foundation Company of Canada Limited, Respondent; Labourers' Interna­tional Union of North America, Local 183, Complainant V. IDufferin Construction Company, a Division of St. Lawrence Cement Inc. and United Brotherhood of Carpenters and Joiners of America, Local 27, Respondents

BEFORE: N. B. Satterfield, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.

APPEARANCES: J. James Nyman, Leanne Chahley and Lorenzo Monaco for United Brotherhood of Carpenters and Joiners of America, Local 27; Bruce Binning for Dufferin Construction Com­pany; Carl Peterson and Denis Flynn for The Foundation Company of Canada Limited; L. Stein­berg and R. Lotito for Labourers' International Union of North America Local 183; Jim Thomson for Carpenters Employer Bargaining Agency; Joseph Liberman for The Heavy Construction Asso­ciation of Toronto.

DECISION OF THE BOARD; November 4, 1988

1. Files No. 1067-88-G and No. 1068-88-G are two referrals to the Board of grievances in the construction industry concerning the interpretation, application, administration or alleged vio­lation of a collective agreement for final and binding arbitration pursuant to section 124 of the Labour Relations Act. File No. 1465-88-JD is a complaint filed under section 91 of the Act con­cerning a dispute over an alleged assignment of work.

2. The grievances allege that Dufferin Construction Company (hereafter "Dufferin") and The Foundation Company of Canada Limited (hereafter "Foundation") have contravened the hir­ing and/or subcontracting provisions of the Carpenters' Provincial Agreement which applies in the industrial, commercial and institutional [ICII sector of the construction industry respecting a project at Terminal 3 of Pearson International Airport. The complaint under section 91 of the Act alleges that the grievances constitute a requirement of Dufferin to assign the work which is the sub­ject matter of the grievances to members of the United Brotherhood of Carpenters and Joiners of America, Local 27 (hereafter "Carpenters Local 27") instead of to members of the Labourers' International Union of North America, Local 183 (hereafter "Labourers' Local 183").

3. The two grievances were referred to the Board on August 2, 1988, and on August 15th were adjourned sine die on consent of the parties while they attempted to settle their differences. The section 91 complaint, naming Carpenters Local 27 as a respondent, was made on September 16, 1988, and the Registrar advised the parties to that complaint that there would be a pre-hearing conference for the complaint held on November 15, 1988, before a panel of the Board. On Octo­ber 11, 1988, the Registrar relisted the two grievance referrals for hearing on November 2, 1988, in response to a request made on October 6th by Carpenters Local 27. Its purpose was to receive the representations of the parties respecting Carpenters Local 27's request to have the Board deter­mine whether the work which is the subject matter of the grievances is work within the ICI sector of the construction industry. The hearing took place as scheduled. While the section 91 complaint was not listed for hearing together with the grievances, the parties to that complaint and others having an interest in it were given notice of the hearing into the two grievance referrals and were represented at that hearing.

4. The parties agree that there is a question of whether the work which is central to the two referrals and to the complaint under section 91 is work in the ICI sector of the construction industry and that the Board must determine that question pursuant to section 150 of the Act. They disagree on the procedural context in which that determination should be made. Carpenters Local 27 takes the position that the Board should make the determination before dealing with any other issues relevant to either the referrals or the jurisdiction dispute. All of the other parties take the position that this panel of the Board should adjourn the two referrals sine die and defer the sector issue to the panel which will conduct the pre-hearing conference in the jurisdiction dispute.

5. Section 150 of the Labour Relations Act states:

s50. The Board shall, upon the application of a trade union, a council of trade unions, or an employer or employers' organization, determine any question that arises as to whether work performed or to be performed by employees is within the industrial, commercial and institu­tional sector of the construction industry referred to in clause 117(e).

6. In the course of proceedings before the Board, when an issue arises as to whether work performed or to be performed by employees is within the ICI sector, the question of whether it will be dealt with prior to any other relevant issues in the proceedings or concurrently with the other issues is usually decided on the basis of what would be the most efficient and expeditious manner of proceeding. See Steen Contractors Limited, [1987] OLRB Rep. Jan. 137; Armbro Materials and Construction Limited, [1986] OLRB Rep. May 579; and, West York Construction, [19801 OLRB Rep. Jan. 119. Each of the two opposing factions herein make the claim that the procedural approach which it recommends would achieve that objective. The parties opposed to Carpenters Local 27 claim that it would be more efficient to have the sector issue dealt with in the context of the section 91 complaint and that it should be left to the pre-hearing conference panel in that com­plaint to decide the procedural issue; that is, to decide whether the determination of the sector issue should be made prior to the jurisdiction complaint proceeding on its merits or be heard con­currently with the merits of that complaint. Part of their argument was that the pre-hearing confer­ence panel would be better placed to deal with the procedural issue because, if the Board follows its usual practice of standing down grievance referrals in deference to a jurisdiction dispute where that dispute is an underlying element of the grievance, the jurisdiction dispute would have to be determined before the two grievances could proceed. In addition, they rake the position that much of the evidence relevant to the sector issue would be relevant to the jurisdiction dispute and should be heard by the panel which deals with the merits of that dispute so as not to have to be adduced in two separate proceedings. Finally, as the Board understands the submissions of counsel for Duffer­in, it is his position that the determination of the sector issue involves a detailed examination of the skills, equipment and work practices associated with the performance of the work in issue. Therefore, determination of the section 150 issue in this case may be determinative of the trade to which the work should be assigned. That being the case, according to counsel, the section 150 issue herein should be heard in the context of the section 91 complaint.

7. The Board disagrees that the pre-hearing conference panel would be any better placed than the panel herein to decide whether the sector issue should be heard concurrently with the jurisdiction complaint. The pre-hearing panel will not be the panel which hears the merits of that complaint and no member of the panel will serve on the hearing panel. In the first place, little of the purpose of a pre-hearing conference in a jurisdiction dispute is likely to be accomplished while there is a serious question of whether the work is in the ICI sector. In the second place, if the panel herein were to defer the section 150 issue for determination in the context of the section 91 com­plaint, in our view, the pre-hearing panel should not answer the procedural question of whether the section 150 issue should be heard concurrently with the merits of the jurisdiction dispute. That more properly would be a decision for the panel hearing the merits of that complaint. If, however, that question is left to be decided by the panel assigned to hearing the merits of the jurisdictional dispute, and it decides that it should determine the sector issue before it deals with the other issues in the jurisdiction dispute, substantial time would have been wasted in getting the sector issue on for hearing. While the Board agrees that it would be more efficient to have the same panel which hears the evidence relevant to that issue also hear the jurisdiction complaint if it proceeds on its merits, deferring the sector issue until the jurisdiction complaint proceeds is not the only way of achieving that objective. The objective can be achieved by the administrative process of assigning the sector issue and the jurisdictional complaint to the same panel of the Board.

8. As the Board has noted above, the parties agree that a sector determination is needed with respect to the work which is central to the issues in all three files. There is no dispute that the issue impacts on the criteria of collective bargaining relationships and area past practice which are considerations in resolving jurisdiction disputes. In the Board's view, resolution of the sector dis­pute is likely to impact on the relevance of the criteria of employer preference and employer past practice as well. It is the Board's further view, therefore, that, in all of the circumstances of these proceedings, it is necessary for the Board to decide the issue of whether the work in dispute in the two grievance referrals and the jurisdiction complaint comes within the [CI sector of the construc­tion industry prior to considering any other issue relevant to the two grievance referrals and before considering the section 91 complaint.

9. Having regard to all of the foregoing, the Board determines and directs that:

(1) The pre-hearing conference scheduled for November 15, 1988, is to be adjourned sine die.

(2) The Registrar is to list the matters in Files No. 1067-88-G, No. 1068-88-G and No. 1465-88-JD for hearing for the purpose of receiving the evidence and representations of the parties who have standing in the proceedings respecting a determination under section 150 of the Labour Relations Act as to whether the work which is the subject

matter of the disputes in the three files is work within the industrial, commercial and institutional sector of the construction industry.

(3) The panel which hears the issue under section 150 of the Labour Relations Act shall be assigned to hear the merits of the complaint in File No. 1465-88-JD should that complaint proceed to hearing on its merits after the section 150 determination has been made.

(4) With respect to the section 150 issue, any employer of employees who are working on or will work on the project where the work at issue is taking place, any trade union or council of trade unions which has bargaining rights for employees who are working on or will work on the project, any employee bargaining agency, employer bar-gaming agency, affiliated bargaining agent or employers' organiza­tion which represents employees, employers or trade unions as afore­said, will have standing to participate in the section 150 determination. To that end, the United Brotherhood of Carpenters and Joiners of America, Local 27, Labourers' International Union of North America, Local 183, Dufferin Construction Company, The Foundation Company of Canada Limited, The Carpenters Employee Bargaining Agency, The Carpenters Employer Bargaining Agency and The Heavy Construction Association of Toronto have standing for purposes of the section 150 determination.

(5) Those parties are directed to meet on November 15, 1988, with a Board officer to be assigned by the Registrar for the purpose of pre­paring a list of other persons who, in their view, are to be given notice of the proceeding respecting the section 150 issue.

10. These matters are referred to the Registrar for the serving of notices respecting the foregoing directions and for the assignment of the Board officer.