[1989] OLRB Rep. June 599
1698-88-JD Four Seasons Drywall Systems and Acoustics Limited, Complainant V. Labourers' International Union of North America, Local 506 and Drywall Acoustic Lathing and Insulation Local 675 of the United Brotherhood of Carpenters' and Joiners of America, Respondents
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members W. Gibson and H. Kobryn.
APPEARANCES: Robin B. Cumine for the complainant; Elizabeth M. Mitchell for the Labourers' International Union of North America, Local 506; Joseph Liberman for the Interior Systems Contractors Association of Ontario; no one appearing for the Drywall Acoustic Lathing and Insulation Local 675 of the United Brotherhood of Carpenters' and Joiners of America.
DECISION OF THE BOARD; June 13, 1989
This is a complaint filed under section 91 of the Labour Relations Act in which the complainant Four Seasons Drywall Systems and Acoustics Limited ("Four Seasons" or "the complainant") has requested the Board to issue a direction respecting the assignment of certain work. The complaint was filed in defence of a grievance referred to the Board under section 124 of the Act by the respondent Labourers' International Union of North America, Local 506 ("the Labourers"'). Another panel of the Board adjourned the referral in order to allow Four Seasons time to file this complaint. The Labourers' contended "...that the Board is without jurisdiction to hear this matter as a jurisdictional dispute....". A hearing was scheduled for the complaint in order to receive the submissions of the parties on the issue of whether the Board had jurisdiction to entertain it. The respondent Drywall Acoustic Lathing and Insulation Local 675 of the United Brotherhood of Carpenters' and Joiners of America ("the Carpenters"') did not reply to the complaint and neither attended nor was represented at the hearing.
Subsection 91(1) of the Labour Relations Act provides as follows:
91.-(i) 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.
- Four Seasons had a contract for the supply and installation of drywall and other acoustic construction material for a highrise, senior citizens home in Scarborough, Ontario ("the project"). Each of the unions is bound together with Four Seasons to separate collective agreements, the "Carpenters' agreement" and the "Labourers' agreement". The Labourers' grieved that the complainant violated the subcontracting provisions of the Labourers' agreement with respect to the following work:
(1) The off-loading of drywall at the point of delivery on the construction site;
(2) conveying the drywall to local stock piles, if any, on the floors of the building, or to the point of installation; and
(3) stock piling the drywall at the local stock piles, if any, or at the point of installation if there was no local stock pile.
That work is the work in dispute in this complaint. The work was performed on the project by the employees of Builders Supply Co. ("Builders") from which the employer purchased the drywall material. The standard terms of purchase provided for the material to be delivered to the local stock piles on each floor of the building. The price to the complainant would be the same if delivery was to the termination point of over-the-road access to the project site.
Whenever Four Seasons performs any of the work which is in dispute with its own employees, it assigns the work to employees who are represented in collective bargaining by the Carpenters' union. Complainant counsel and counsel for the Interior Systems Contractors Association of Ontario ("the Association"), an employers' organization which represents drywall contractors and is bound to the Carpenters' agreement, assert that it has been a long standing practice of the complainant and other contractors in the drywall industry to purchase drywall and acoustic materials for a price which includes delivery to the floor or floors of the building on which it is to be installed and have the supplier deliver it in accordance with that arrangement. They assert also that it has been a constant issue between the Carpenters' union and the Labourers’ union as to which one has jurisdiction over the performance of that work. The Carpenters' agreement and the Labourers' agreement each claims jurisdiction over the work in dispute in this complaint and each agreement contains a provision that an employer bound by the agreement shall not subcontract work covered by it to any contractor who is not in a collective bargaining relationship with the union.
Counsel for Four Seasons submits that, were the Board to find that these facts do not satisfy the requirements of subsection 91(1), it would be denying its jurisdiction under the subsection because the grievance filed by the Carpenters~ union on Four Seasons is a requirement that the work be assigned to employees represented in collective bargaining by that union. Furthermore, counsel submits, since it has been the complainant's practice and that of other contractors in the drywall industry to have drywall materials delivered to each floor of a highrise building on which it is being installed and since both unions claim the work, the Board has to decide which of the unions should do the work if it is going to come to grips with the issue before it. Counsel argues that, if the grievance proceeds without the Board first settling the dispute between the unions and if the Labourers' union is successful in its grievance, there is nothing to prevent the Carpenters' union from bringing its own grievance claiming that the complainant has breached the Carpenters' agreement by paying damages to the Labourers' union as though its members had performed the work. In these circumstances, it is argued, the Board has jurisdiction to entertain the complaint under subsection 91(1) and should exercise its discretion to do so in order that the dispute over which trade should perform the work will be decided in a forum in which all parties to the complaint will have standing to deal with the dispute.
Counsel for the Association focuses his argument on the long standing practice of the complainant and other drywall contractors of purchasing their materials under terms which include delivery to the floor of the building where they are to be installed and to the fact that Four Seasons is bound to collective agreements with each of the unions which contain conflicting claims for the work in dispute and which prohibit the complainant from subletting the work to a contractor which does not have a collective bargaining relationship with the particular union. Thus, counsel argues, the Board has before it circumstances where Four Seasons has two collective agreements, each of which is saying that the members of the union bound by the agreement should do the work and that the constant dispute between the Carpenters' and Labourers' over the work at issue attests to that fact. Since subsection 91(1) gives the Board a broad discretion to deal with that kind of dispute, the Board's discretion should be exercised to entertain this complaint.
Counsel for the Labourers' union submits that the employer which has control over assignment of the work in dispute is Builders. Its employees performed the work. Therefore, Builders is the "employer" to which subsection 91(1) refers. The Labourers’ union has made no demand on Builders, either directly or through Four Seasons as agent of the Labourers' union. Therefore, this complaint does not satisfy the two preconditions of subsection 91(1), either one of which must be met in order for the Board to have jurisdiction to entertain the complaint. Counsel referred the Board to its decision in Harold R. Stark Company Limited, [1982] OLRB Rep. Feb. 222, and the earlier decisions referred to therein in support of its argument that the "employer" referred to in subsection 91(1) of the Act is the employer which has control over the assignment and for the proposition that the Labourers' union has not demanded that employer to assign the work to members of the Labourers' union. Counsel also relies on the decision in Stark in defence of the claim of counsel for the Association that the complaint comes within subsection 91(1) because Four Seasons is bound to separate collective agreements with conflicting claims for the work in dispute and similar subcontracting restrictions.
A fair reading of the wording of subsection 91(1) of the Act establishes that, in order for the Board to have jurisdiction to entertain this complaint, it must be either:
(1) A complaint that "...a trade union..., was or is requiring an employer. . .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 another trade, craft or class,...", or
(2) a complaint "...that an employer was or is assigning work to persons in a particular trade union rather than to persons in another trade union
The complaint on its face does not satisfy the second precondition, therefore, in order for the Board to have jurisdiction, the complaint must satisfy the first one. The Board has, in a large number of complaints made under what is now subsection 91(1) of the Act, concluded that the subsection is directed to circumstances where a trade union is seeking to have the employer with actual responsibility for performing the work in dispute, assign that work to members of the claiming trade union. See Napev Construction Ltd., [1980] OLRB Rep. Feb. 247, referred to in Stark, supra, at paragraph 10.
In the Stark decision itself, the complainant Stark was a mechanical subcontractor which had obtained work by subcontract from the general contractor on a large project. Stark in turn sublet some of the work to a paving contractor. The paving contractor was bound to a collective agreement with a sister local of the Labourers' union. Stark was bound to provincial collective agreements covering construction labourers and plumbers. The paving company had no contractual relations with the union representing plumbers. The plumbers union told Stark that certain of the work sublet to the paving company was work that should be done by its members and asked Stark to take back the work in question. It was understood by both Stark and the plumbers union that, if Stark did take the work back, it would use members of the plumbers union to perform the work. Stark did not take back the work and the plumbers union filed a grievance claiming that, by subletting the work to the paving company, Stark was in violation of the subcontracting provisions of the plumbers' provincial collective agreement. The provision prohibited Stark from subcontracting work to another contractor who was not bound by the provincial agreement or a party to a collective agreement with the plumbers union. The Labourers' provincial agreement to which Stark was bound contained a similar prohibition.
Within that factual framework, the Board dealt with the same issues which are raised in this complaint. Specifically, it dealt with the following contentions:
(1) That the Board should not follow the Napev decision and those which preceded it and should treat Stark as an employer for purposes of subsection 91(1) on two grounds; first, the plumbers union sought to have Stark revoke its subcontract to the paving contractor, uniquely distinguishing this complaint from those cases and qualifying Stark as an "employer" for purposes of subsection 91(1); and, second, because it was Stark, through its choice of subcontractor, that in fact determined which union's members would perform the work, all of which should cause the Board to take a more "realistic" view of the complaint; and
(2) that the Board's decision in Pre-Con Company, A Division of St. Marys Cement Limited, [1981] OLRB Rep. July 947, referred to in Stark, supra, at paragraph 14, which issued after the Napev decision, supported the contention that the matters at issue could be dealt with by way of a section 91 complaint on either of two bases; first, because the plumbers union sought to use Stark as its agent to demand the work from the paving contractor; and, second, because Stark was bound to two collective agreements with conflicting provisions regarding the subcontracting of the work at issue.
With respect to the contention that the Board should treat Stark as an employer for purposes of subsection 91(1), on the first ground, the Board declined to accept the facts relied on as a material distinction from the earlier cases, because Stark never did become the employer and the work at issue was performed at all material times by persons employed by the paving contractor and to whom that contractor had assigned the work. On the second ground, the Board acknowledged that, because Stark could have determined which union's members could have done the work through its choice of subcontractor or its decision to do the work, there was an argument for the Board to have jurisdiction to deal with work allocation disputes arising out of the enforcement of subcontracting provisions in collective agreements. However, the Board concluded that:
…given the language of section 91(1), its legislative history and the interpretation given to the section over the years, we are satisfied that the section, as it is currently worded, does not cover the type of situation now before us, and that any possible widening of the scope of the section is a matter for the Legislature to deal with.
With respect to the contention that the Board's decision in Pre-Con supported dealing with the matters at issue in Stark by way of a section 91 complaint, the Board accepted that a union can demand an assignment of work through another contractor acting as the union s agent, but found as a fact that the plumbers union did not use Stark as its agent and Stark, on its own motion, did not approach the paving contractor with a request for the work. The Board at paragraph 15 of the decision rejected the premise that the Board in the Pre-Con decision was indicating that subsection 91(1) automatically applies in every case where an employer is bound together with different trade unions to separate collective agreements containing conflicting subcontracting provisions and one of the trade unions seeks to enforce the provisions in its collective agreement.
The circumstances of the instant complaint are closely analogous to those which were before the Board in Stark, supra. The Board herein agrees with the analysis in the Stark decision of the Board's earlier jurisprudence and with its reasoning, and adopts that reasoning. It is clear in the instant complaint that the Labourers' union has not made a direct demand on Builders to have the work performed by its members and, on the reasoning in the Stark and Pre-Con decisions, the Labourers' union grievance against Four Seasons is not, in the circumstances of this case, a demand on Builders that the work be assigned to members of the Labourers' union.
The Board understands the concern of the parties herein which led them to ask the Board to take a more realistic view of the Labourers' union grievance and find it a demand for work for purposes of subsection 91(1) of the Act, but the Board concurs with Stark, supra, that to do so would give the subsection a meaning not contemplated by the statute. That does not mean that trade unions or employers cannot have access to section 91 in situations where a trade union bypasses it and uses section 124 of the Act to claim work from a contractor other than the one who has assigned the work. The Board's jurisprudence, particularly Stark, supra, and those earlier decisions dealing with a general contractor acting as agent for the trade union claiming the work, offer ample guidelines as to the elements which are essential to bringing a complaint within subsection 91(1) of the Act.
It was also apparent in the submissions of counsel for the complainant and for the Association that what they see as the underlying work assignment issue would not be properly addressed if the Labourers' union grievance proceeds under section 124 of the Act. In that respect, we note that the Board in Stark addressed similar concerns at paragraph 16 and made the following observations:
…It may be that the concerns expressed about having what is essentially a jurisdictional matter dealt with at arbitration can in fact be dealt with in the context of the Board fashioning a remedy in the section 124 arbitration proceeding, assuming, of course, that a violation of the subcontracting provision in the applicable collective agreement is made out. Can it be said, for example, that a construction trade union has properly sought to mitigate the damages in circumstances where it is alleging a violation of a subcontracting provision, but at the same time has refrained from seeking an assignment of the work from the employer actually responsible for assigning it. Similarly, it may be open to question as to whether in a section 124 proceeding any order should go requiring an employer to cease subletting certain work to a firm employing members of one union, and requiring him to do it himself or have it done by another contractor using members of the grieving union, in circumstances where although the matter arises out of a jurisdictional dispute the grieving union has not brought the matter within the provisions of section 91 so as to allow the jurisdictional issues to be properly canvassed and ruled upon. This is particularly so in light of the fact that the subcontractor and the union whose members are actually performing the work will likely not have standing to participate in the section 124 arbitration proceedings. We raise these issues only as matters which perhaps should be addressed at a later time, and reach no conclusions with respect to them.
- In all of these circumstances, the Board finds that this complaint does not come within the provisions of subsection 91(1) of the Labour Relations Act and the Board has no jurisdiction to entertain it. The complaint is dismissed.