International Association of Bridge, Structural and Ornamental Iron-workers, Local 721 v. Newmarch Mechanical Limited
[1988] OLRB Rep. August 840
1078-88-JD International Association of Bridge, Structural and Ornamental Iron-workers, Local 721, Complainant v. Newmarch Mechanical Limited and The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 463, Respondents
BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members W. N. Fraser and J. Redshaw.
DECISION OF THE BOARD; August 17, 1988
1This is a jurisdictional dispute complaint filed pursuant to section 91 of the Labour Relations Act. It was filed on August 5, 1988. The complainant sought an interim order requiring a redistribution of the work in dispute in favour of its members. That work involved the installation of portions of a production line at a General Motors factory. There is no question that such work falls within the ICI sector of the construction industry. Any work stoppage or threatened work stoppage at this time would be illegal. The provision of the Act upon which Local 721 relied reads as follows:
91.-(8) Where a complaint is made under subsection (1) and the complainant alleges that a strike is imminent or is taking place by reason of the requirement as to the assignment of work or by reason of the assignment of work, the Board may, after consulting any employer, employers organization, trade union or council of trade unions that in its opinion is concerned, make such interim order with respect to the assignment of the work as it in its discretion considers proper.
Upon reading the material in support of Local 721's request for an interim order, and in particular paragraphs 6 and 7 where Local 721's members were said to be contemplating "walking out" or had threatened to "down tools", the Board made the following ruling:
However, a perusal of the material filed in support of the complaint, reveals that the only strike or strike threat involves the complainant itself and its own members. In other words, the complainant is pleading its own illegal conduct or potential for such illegal conduct, in support of its claim for an interim direction in its favour. In the circumstances, and in the exercise of its discretion, the Board does not consider it appropriate to make any interim direction or order. A complainant under section 91(8) should not be able to profit directly or indirectly from its own unlawful conduct or threat thereof. Our decision in this regard, of course, is made without prejudice to the merits of the jurisdictional dispute claim which will be processed and dealt with in accordance with the Board's usual practice.
2By letter dated August 8, 1988 counsel for Local 721 protests this result and the process by which it was reached. Counsel contends that the Board had no jurisdiction to refuse to make an interim order without a formal hearing, or, at the very least, a "consultation" with the interested parties, of the kind contemplated by section 91(8). It is said that the refusal of an interim order without either a formal hearing or consultation amounts to a denial of fundamental justice.
3Section 91 of the Act regulates disputes between two or more unions concerning the assignment of particular work. It empowers the Board to make both interim and final directions with respect to the assignment of such work, based upon such labour relations or collective bargaining criteria as the Board considers appropriate. Section 91(8) in particular is rather unusual. It permits the Board to make an interim direction without the necessity of a formal hearing. However, the authority vested in the Board under section 91(8) is clearly discretionary. There is no obligation to make an interim order, nor, in our view, to consult parties potentially affected if the pleadings of the applicant for such order do not disclose the basis for making one. As the Board observed in Lummus Canada Inc., [1982] OLRB Rep. Sept. 1330:
The Board's jurisprudence on interim orders has, since the inception of what is now section 91, been basically that the assignment of the employer will be continued unless that assignment is patently wrong.
Where the applicant's pleadings, if accepted as true, do not disclose a sufficient basis for making an interim order, we see no reason to schedule a hearing or consultation.
4In Bird Construction, [1984] OLRB Rep. Dec. 1688 the Board held that section 91(8) should be given a liberal interpretation, but also said this:
- A fundamental principle underlying both mechanisms for voluntary resolution of work assignment disputes and statutory mechanisms for their adjudication is that a party should not gain jurisdiction by threatening or engaging in work stoppages. In other words, striking or threatening a strike to obtain the assignment of work cannot be rewarded as successful behaviour. Thus, if work is obtained by striking, including threatening a strike, the adjudicator will normally restore the situation which existed prior to the strike until the merits of the dispute are determined. That is an understood and accepted fact of life in the construction industry in the United States and Canada. This principle has been the cornerstone of the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry as it has been administered by the Impartial Jurisdictional Disputes Board and its predecessor the National Joint Board for the Settlement of Jurisdiction Disputes in the Construction Industry. The elimination of work stoppages as a response to work assignment disputes is a key objective of such voluntary and statutory mechanisms for the resolution of those disputes.
It follows, we think, that a disgruntled trade union, believing itself to be entitled to certain work, should not be able to achieve that objective under section 91(8), by reason of its own unlawful strike or strike threat.
5In the instant case, Local 721 may well have an arguable claim for the work in dispute, based upon area practice, past agreements, and so on. But, in our view, it cannot base its claim for an interim order under section 91(8) upon its own illegal strike threat, and there is no suggestion that any of the other parties involved in this matter are engaged in or threatening a strike. What we have, then, is Local 721 threatening or indicating that its members will engage in illegal activity unless the Board makes an interim order in its favour. As a matter of public policy we do not think it appropriate to do so, and see no reason why we should vary or amend our decision of August 5, 1988.
6As before, we wish to emphasize that we make no determination whatsoever about the merits of this complaint, or whether all or some of the work in dispute should be assigned to members of Local 721. We rule only that, in the exercise of our discretion, we are not prepared to make an interim order in favour of Local 721 when the "imminent strike" contemplated by section 91(8) is an illegal one, precipitated by Local 721 itself or its members.
7For the foregoing reasons, the application for reconsideration is dismissed.