[1989] OLRB Rep. February 128
0929-88-JD International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128, Complainant v. Labourers International Union of North America, Local 1089 and Foster Wheeler Limited, Respondents
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members J. Trim and N. A. Wilson.
APPEARANCES: Michael Church and J. Maloney for the complainant; Murray Gold and Robert Leone for the respondent Labourers Local 1089; Roy Filion and Robin McDonald for the respondent Foster Wheeler Limited; Walter Thornton, S. Teperman and P. Greenspoon on behalf of Metropolitan Toronto Demolition Contractors Association Inc.
DECISION OF THE BOARD; February 15, 1989
This is a jurisdictional dispute complaint filed pursuant to section 91 of the Labour Relations Act ("the Act"). This matter came before this panel as a result of a unanimous direction by the panel of the Board which conducted the pre-hearing conference (Vice-Chair G. T. Surdykowski and Board members H. Kobryn and W. N. Fraser). That direction was rendered orally on February 1, 1989 and directed that a hearing be convened before a panel of the Board on February 2, 1989 (a day already scheduled for the continuation for the pre-hearing conference in this matter) for the purpose of determining the evidence of Area and Employer Practice which the Board will admit in respect of this complaint.
At the commencement of the hearing, Mr. Gold on behalf of the respondent Labourers International Union of North America, Local 1089 ("Labourers") strenuously objected to the hearing having been convened in this manner. He wished the Board to note that the hearing had not been convened on consent and argued that it had not been convened with sufficient notice to all the parties.
In addition to the parties to this complaint, at the commencement of the hearing Mr. Paul Greenspoon and Mr. Steven Teperman both appearing on behalf of the Metropolitan Toronto Demolition Contractors Association Inc. ("the Association") sought status to intervene and requested an adjournment. To date, the Association has not filed an intervention or any other documentation in this matter. At present it is not strictly speaking a "party" to these proceedings. It was however, named as an entity which may be affected by the complaint in the reply to the complaint filed by the Labourers. The Association had therefore received Notice of the Complaint on August 12, 1988. Thereafter, the Association received Notice of the pre-hearing conference scheduled on August 16, 1988, the report of that pre-hearing conference, and by letter from the Board dated October 19, 1988, the Association was notified that the pre-hearing conference would continue on February 1 and 2, 1989.
The Association sought status to intervene on the basis that in the past, members of the Association had performed work similar to the work in dispute. Certain members of the Association had in fact tendered in respect of this very project but were unsuccessful in their bid. The Association and the Labourers are bound to a collective agreement which has an '~all employee'' recognition clause. The Association does not have a collective agreement with the applicant International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128 ("Boilermakers"). The argument advanced on behalf of the Association, and supported by counsel for the Labourers appeared to be that any determination of the Board which found that the demolition of the No. 1 Boiler at the Dow Chemical Plant in Sarnia, Ontario (which the parties were in substantial agreement constitutes the work in dispute) would adversely impact upon the Association and its members as a result of the Association's collective agreement obligations with the Labourers.
The Association further requested an adjournment of the hearing and submitted that it had insufficient notice that issues such as the matter of the parameters of the evidence would be dealt with by the Board during or as a result of the pre-hearing conference. Mr. Teperman stated that the Association had intended to appear when the matter was heard on the merits, but had chosen not to attend the pre-hearing conference on February 1, 1989 because it was expected that this matter would be settled by reason of the discussions normally held during the pre-hearing conference. Mr. Teperman sought an adjournment so that members of the Association could discuss the matter and thereafter retain and instruct counsel to make representations to the Board.
Counsel on behalf of the Labourers supported the Association's request. Counsel on behalf of the Boilermakers and the respondent Foster Wheeler Limited ("Foster Wheeler") opposed the Association's request. Counsel on behalf of Foster Wheeler did not dispute the fact that the Association did potentially have an interest in this matter, but argued that the Association ought not to be granted an adjournment in the circumstances of this case. Counsel on behalf of Boilermakers disputed the status of the Association to intervene. It was submitted by both counsel for the Boilermakers and Foster Wheeler that the Association had received Notice of all proceedings, had not sought counsel to represent it in the matter, and had not filed an intervention or any other document required pursuant to the Board's Practice Note 15. Both counsel characterised the appearance of the Association at this stage of the matter as a stalling tactic to delay the ultimate adjudication of this matter. It was submitted that, having not participated in the process to date, it was now too late in the day for the Association to appear. Both counsel also pointed to the prejudice that would occur to their respective clients if an adjournment was granted.
At the conclusion of these submissions we rendered the following oral ruling:
In consequence of a direction by the pre-hearing panel we convened the hearing this day for the purpose of determining the scope of evidence of Area and Employer Practice which the Board will admit with respect to this complaint. At the commencement of the hearing Mr. S. Teperman and Mr. Paul Greenspoon appeared and purported to represent the Metropolitan Toronto Demolition Contractors Association Inc. On behalf of that association Mr. Teperman requested permission of this Board to intervene in this hearing and thereafter requested an adjournment. Mr. Gold, on behalf of the Labourers Local 1089 supported Mr. Teperman's submissions to the Board. Mr. Filion on behalf of Foster Wheeler, and Mr. Church on behalf of the Boilermakers Local 128 objected to any adjournment being granted. Each also addressed the issue of the Association's status to intervene. After having heard the submissions of the parties, and without at this point determining the status of the Association to intervene in this matter, we deny the request by the Association to adjourn this matter today.
Assuming, and without deciding the issue, that the Association has status, we are not prepared to adjourn this matter in the circumstances of this case.
The Association first received notice of this jurisdictional dispute from the Board on August 12, 1988. At that time the Association was also notified of the time and place of the pre-hearing conference. We were advised by Mr. Leone, a representative of the Labourers union, that on August 16, 1988 representatives from the Association did in fact attend the pre-hearing conference. By letter dated August 31, 1988, the Association received a copy of the memorandum dated August 17, 1988 prepared by Vice-Chair G. T. Surdykowski in respect of the pre-hearing conference which took place on August 16, 1988.
Subsequent correspondence to the Association from the Board (respectively dated September 14, 1988 and October 19, 1988) provided to the Association further materials which had been filed in this matter, and notice of the continuation of the pre-hearing conference of this matter on February 1 and February 2, 1989. For its own reasons the Association chose not to file an intervention or any other documentation in this matter, chose not to attend the pre-hearing conference which continued on February 1, 1989 and chose not to retain counsel in this matter.
The Association now comes before us requesting an adjournment to retain counsel in order to make submissions to this panel on this matter. Given the history of these proceedings and the Association's participation, or lack thereof to date, and in keeping with the purposes of the pre-hearing conference, the direction which the pre-hearing panel made on February 1, 1989, and most importantly in keeping with the purpose of jurisdictional disputes and the reasons for expedition of jurisdictional disputes, and the reasons and purpose of pre-hearing conferences (as these have already been articulated by the pre-hearing panel in yesterday's oral direction) we are not prepared to adjourn this hearing today.
After we rendered our oral ruling, we advised Mr. Teperman and Mr. Greenspoon that as the issue of the status of the Association to intervene had not been decided, they were welcome and invited to stay and participate in this hearing which would deal with the scope of the evidence of Area and Employer Practice which the Board will admit when this complaint is heard on its merits. We then adjourned the hearing over the course of the lunch hour. Upon our return after the lunch hour recess, the Association was represented by counsel, Mr. Walter Thornton. The Board reiterated its oral ruling made that morning for the benefit of Mr. Thornton and thereafter entertained the submissions of the parties in respect of the scope of the evidence.
We will not attempt to provide an exhaustive recitation of the full and comprehensive submissions of counsel for the applicant and the respondents. We intend merely to summarize and highlight their submissions. Before doing so however, we specifically note that Mr. Thornton chose not to make any submissions to the Board in respect of the scope of evidence. His failure to make submissions on this point however, was without prejudice to the position of the Association that it had status to intervene. He specifically reserved the right of the Association to make submissions to the panel of the Board which will ultimately adjudicate upon the merits of this complaint. In response to an inquiry from the Vice-Chair, Mr Thornton indicated that the Association did not thereby reserve its right to make submissions to that panel of the Board in respect of the procedural or evidentiary ruling which might be rendered by this panel as a result of the hearing which we had commenced that morning. Mr. Thornton specifically agreed that he would abide by any ruling which this panel makes in respect of the scope of the evidence which the Board will admit with respect to this complaint. For their part counsel on behalf of the Boilermakers, Foster Wheeler, and the Labourers each agreed that the failure of the Association to make submissions at this stage was without prejudice to the Association's submissions in respect of its status to intervene, and would not be raised by them when the matter of the Association's status is addressed by the panel of the Board which will ultimately adjudicate upon the merits of this complaint.
Counsel for the Boilermakers and Foster Wheeler urged the Board to limit the amount of evidence to be admitted by the Board to evidence of projects which were substantially similar in nature to the dismantling or demolishing of the No. 1 Boiler at the Dow Chemical Plant in Sarnia, Ontario. Both counsel made specific reference to
(a) the type of structure which is to be dismantled or demolished, (an 80-feet high boiler with dimensions of approximately 30 feet long and 30 feet wide)
(b) the environment in which the boiler is to be dismantled or demolished (an operating environment with the No. 1 Boiler situated approximately twenty-three feet away from another operating boiler)
(c) the method in which the demolition or dismantling of the boiler is to
be performed.
Both counsel submitted that as the dismantling or demolition of this type of structure in an operating environment was relatively rare or unique, the evidence of "Area" Practice ought not to be restrictive and should include all of North America. It was argued that the probative value of the demolition or dismantling of other types of structures in other types of environments was minimal. Moreover, such evidence would substantially lengthen the hearing in this matter, and thereby add to the cost of these proceedings to the parties, (to say nothing of the resources of the Board) and would unduly delay the final determination and adjudication of the matter to the prejudice of the parties. In addition counsel for the Boilermakers submitted that it was the Boilermakers who had filed the complaint and were claiming the work in dispute. It was therefore argued that only evidence of work which was within the jurisdiction of the Boilermakers, or work which fell within their 'craft" was relevant.
Counsel for the Labourers submitted that the evidence which ought to be admitted by the Board was the evidence of the dismantling and demolition of structures in the Board area. Counsel argued that the substance of the Labourers' case was that the "Area Practice" was that if a structure was demolished and used for scrap it was Labourers' work. Counsel argued that in order to make their case, and to refute, dispute or otherwise meet the case of the Boilermakers, it will be necessary for the Labourers to lead evidence of demolition in the area without distinction as to the type of structure involved. Counsel also submitted that Foster Wheeler was bound to the "Demolition Agreement" between the Labourers and the Association by operation of law, namely by force of the Minister's designation order dated April 18, 1986 and by reason of the "cross-over" clause found in the Labourers Province wide ICI Agreement. (Foster Wheeler disputes that it is bound in any way to the Demolition agreement). Counsel argued that if the Labourers were successful in their assertion that Foster Wheeler was bound to perform the demolition work pursuant to the provisions of the Demolition Agreement, the Board would require evidence of, and be prepared to adjudicate upon, the issue of what constitutes "demolition". Counsel submitted that the Labourers intended to call evidence to prove what type of work constitutes "demolition", and argued that such evidence ought not to be limited to demolition of substantially similar structures in substantially similar environments because "demolition" encompasses a host of other structures in varying environments. Counsel also submitted that the "Area" Practice ought to be limited to Board area 2 as this would result in a more expeditious hearing and have a more useful precedential value. Finally, counsel also argued that to accede to the submissions of Foster Wheeler and the Boilermakers to limit the evidence would be a denial of natural justice as it would result in this panel of the Board "pre-determining" the case, without having heard any evidence as to what the case is about. In addition, a restrictive ruling in respect of the relevance of certain evidence at this stage of the proceeding would unduly fetter the discretion of the panel of the Board which will hear the merits of this complaint if that panel is a panel different than this one.
At the conclusion of the hearing of the submissions of the parties in respect of this matter the Board rendered the following oral ruling:
Section 91 of the Labour Relations Act authorizes this Board to inquire into a jurisdictional dispute involving "particular work". After having considered the submissions of the parties and in view of the language used in section 91 we make the following ruling in respect of the parameters of the evidence which the Board deems relevant in respect of this complaint.
The evidence to be adduced will be limited to the evidence within the following parameters:
Only evidence relating to field erected, steam generating boilers, for industrial application, originally erected using Boilermakers, which were or are being dismantled or disassembled in an operating environment in the province of Ontario.
In our view, the reference to "particular work" in section 91 compels the Board when examining "employer" and "area" Practice to inquire into work involving the same or similar type of structure, in the same or similar type of environment.
- In addition, counsel were provided with the following dates for the hearing of this complaint. There was agreement amongst counsel that after consultation with each other, the Registrar's office would be notified which dates were required for the hearing. We note that a failure by counsel to agree on dates may result in the Registrar scheduling this matter without any further consultation with the parties. The dates provided to counsel were May 8th, 9th, 10th or 11th, 15th, 16th, 17th or 18th, 23rd, 24th, 25th, 29th, 30th, 31st, June 5th, 6th, 7th or 8th, 12th, 13th, 14th or 15th, 19th, 20th, 21st or 22nd, 26th, 27th, 28th or 29th.