E. H. Price Limited v. Sheet Metal Workers' International Association Local Union No. 47, 1990 CanLII 5626

[1990] OLRB Rep. December 1263

1682-89-M; 1683-89-JD E. H. Price Limited, Applicant v. Sheet Metal Workers' International Association Local Union No. 47, Sheet Metal Workers' International Association, Ontario Sheet Metal Workers' Conference, Respondents v. United Steelworkers of America and United Steelworkers of America, Local 8990, Intervener; E. H. Price Limited, Complainant v. Sheet Metal Workers' International Association Local Union No. 47, Sheet Metal Workers' International Association, Ontario Sheet Metal Workers' Conference, Respondents v. United Steelworkers of America, United Steelworkers of America, Local 8990, Ontario Sheet Metal and Air Handling Group and Megatech Contracting Limited, Interveners

BEFORE: N. B. Satterfield, Vice-Chair, and Board Members D. A. MacDonald and J. Redshaw.

APPEARANCES: Bernard Fishbein, Ross Mitchell and R. Belleville for Sheet Metal Workers' International Association, Local 47 and Sheet Metal Workers' International Association, Ontario Sheet Metal Workers' Conference; Michael Gottheil for United Steelworkers of America; Keith Billings and L. Cianfarani for Ontario Sheet Metal and Air Handling Group and Megatech Contracting Limited; Philip R. Matthews for E. H. Price Limited.

DECISION OF THE BOARD; December 20, 1990

1. The application in File No. 1682-89-M is an application made under section 150 of the Labour Relations Act for a determination by the Board of a question whether certain work performed or to be performed is within the industrial, commercial and institutional sector (hereafter "the ICI sector") of the construction industry. The complaint in File No. 1683-89-JD is a request for direction under section 91 of the Act with respect to an alleged work assignment dispute. They were filed together by the applicant/complainant. For convenience, the Board will refer to the applicant/complainant as "Price", to the respondents collectively as "the Sheet Metal Workers", to Sheet Metal Workers' International Association Local Union No. 47 as "Local 47", to the interveners United Steelworkers of America and United Steelworkers of America, Local 8990 collectively as "the Steelworkers", to United Steelworkers of America, Local 8990 as "Local 8990", to the intervener Ontario Sheet Metal and Air Handling Group as "the Group" and to the intervener Megatech Contracting Limited as "Megatech".

2. Counsel for the Group and Megatech appeared at the hearing scheduled for the complaint and filed an intervention in Form 83. The Group and Megatech were made parties to the complaint.

3. The complaint was listed for hearing to deal with an issue of whether the Board had jurisdiction under subsection 91(1) of the Labour Relations Act to entertain the complaint. The issue was raised by the solicitors for the Sheet Metal Workers. The letter submitted that the Board was without jurisdiction to entertain the complaint because there was no "jurisdictional dispute" within the meaning of the Act. The letter submitted further that the issue be determined before the Board processed the complaint any further or scheduled any pre-hearing conference into the complaint.

4. The letter also addressed the section 150 application. The Sheet Metal Workers took the position that the applicant was without standing to make the application and the Board was without jurisdiction to grant the relief sought in the application. The Sheet Metal Workers submitted that the issue of the complainant's standing to bring a section 150 application and the Board's jurisdiction to grant the relief sought in the application should be determined by the Board before it processed the application any further. As already noted, the Board listed the complaint for hearing on the issue of its jurisdiction to entertain the complaint. The section 150 application was not listed for hearing.

5. At the hearing into the complaint, counsel for Price, supported by counsel for all of the interveners took the position that this panel of the Board could not and should not proceed with any aspect of the section 91 complaint until the question raised by the application under section 150 of the Act had been answered. That question is whether the work in dispute in the complaint is within the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) of the Act. Section 150 states:

6. 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).

The Board received the parties' submissions on whether it could and ought to proceed with the section 91 complaint, including the issue of the Board's jurisdiction to entertain that complaint, before a determination had been made in the section 150 application. The Board adjourned to consider the submissions and then issued the following oral ruling:

The Board will not defer the hearing into the issue of whether it has jurisdiction under subsection 91(1) of the Labour Relations Act to entertain this complaint in order to allow an inquiry under section 150 of the Act. Written reasons for its ruling will be issued later.

6. The complaint under section 91 of the Act was made because Local 47 had referred a grievance under section 124 of the Act for final and binding arbitration. The grievance alleges that Megatech was violating the Sheet Metal Workers' provincial agreement ("the Agreement") to which it and Local 47 are bound by purchasing manufactured sheet metal parts from Price. The complaint refers to the parts as "diffusers". They are being manufactured at Price's plant in the Province of Quebec and they are for installation in an office building being built on a construction site in the City of Ottawa. Price alleges that Local 47's grievance constitutes a demand that Price assign the work of manufacturing the diffusers to an employer employing Local 47 members instead of to Price's employees who are represented in collective bargaining with Price by Local 8990. Price claims that the work in dispute is not work in the construction industry and is not work covered by the Agreement on which Local 47 relies. It is implicit in Price's claim that the Agreement applies only to work in the industrial, commercial and institutional ("ICI") sector of the construction industry in the Province of Ontario and, therefore, cannot apply to the work which is the subject matter of the complaint.

7. The thrust of the submissions on behalf of Price, as the Board understands them, is that, since Local 47's claim to the work is based on a collective agreement which applies only in the ICI sector of the construction industry in the Province of Ontario, the Board should conduct an inquiry under section 150 of the Act in order to determine whether the work in dispute in the complaint is in that sector. The interveners concur in Price's position and submit further that the Board ought to make the sector determination in order for the parties to understand the full scope of the section 91 complaint. Counsel for Megatech and the Group takes the further position that Local 47's grievance is an attempt to extend the application of the Agreement to work which Megatech and the Group claim is outside the ICI sector. Therefore, counsel submits, the grievance raises a question to be decided under section 150 as to whether the work involved is work in the ICI sector. Section 150 of the Act mandates that the Board determine that question, according to counsel.

8. While Price filed its section 150 application concurrently with the section 91 complaint, the hearing scheduled into the section 91 complaint was for the purpose of determining whether the Board has jurisdiction under subsection 91(1) of the Act to inquire into the complaint. Assuming, without finding, that the complaint does raise a question "...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)." of the Act, and assuming that section 150 mandates that the Board determine the question, the Board has the power under subsection 102(13) of the Act to determine its own practice and procedure, subject to the parties having the full opportunity to present their evidence and make their submissions. That power includes the power to decide at what stage of a particular proceeding the Board will determine the question raised by an application under section 150 of the Act. In the complaint at hand, the Sheet Metal Workers have taken the position that the Board has no jurisdiction under subsection 91(1) of the Act to inquire into the complaint. If they are correct, the complaint will be dismissed. Therefore, even if the complaint raises a question of whether the work in dispute is work in the ICI sector of the construction industry in Ontario, it would become academic insofar as the section 91 complaint was concerned. On the other hand, if the Board finds that it has jurisdiction to inquire into the complaint, it will have to decide at that time how to proceed, if at all, with the section 150 application.

9. These are the Board's reasons for its oral ruling and it will turn now to deal with the issue of its jurisdiction to entertain the complaint made under section 91 of the Act. Paragraph 4 of the complaint describes the work in dispute as follows:

The manufacturing at Complainant's plant at 801 Price, Parc Industriel, St-Jerome, Quebec, of TBD 4150 diffusers to be installed on construction job site of the Queensway Centre - Commerce Plaza Preston Street at the Queensway, Ottawa, Ontario, by members of [Local 47] employed by Megatech Contracting Limited.

The work has been assigned to Price's employees at its plants. Price contends that the Sheet Metal Workers are requiring Megatech "... to assign the off-job site manufacture of the TBD 4150 diffusers to members of the Sheet Metal Workers under the 'Sheet Metal label' rather than to the complainant's employees, members of Local 8990.". The remedy sought by Price is a Board direction that:

The Sheet Metal Workers cease and desist from requiring Megatech or any other members of the employers' association to refrain from purchasing manufactured items from the complainant on the sole grounds that they were not made by members of the Sheet Metal Workers or any affiliated local of the Sheet Metal Workers' International Association under the "Sheet Metal label".

10. For purposes of this motion, the Sheet Metal Workers agree to the following facts asserted in the complaint:

(a) the manufacturing of the diffusers in dispute has been carried on at the complainant's plant for approximately ten years;

(b) the diffusers are catalogue items meeting specific pre-determined standards;

(c) the diffusers cannot be manufactured on the job site; and,

(d) Local 47 has filed a grievance with Megatech claiming jurisdiction over the type of work performed by the complainant.

The other parties did not dispute these facts.

11. Subsection 91(1) of the Labour Relations Act provides as follows:

91.-(1) 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.

Therefore, in order for the Board to have jurisdiction to entertain a complaint under section 91, the complaint must be either:

(1) a complaint that ". . .a trade union..., or an officer, official or agent of 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 unton

Since this complaint is brought by the employer who has control over the work described in the complaint as being the work in dispute, the complaint must satisfy the first condition if the Board is to have jurisdiction to entertain it. Counsel for the Sheet Metal Workers argues that the complaint on its face and on the admitted facts does not satisfy that condition because the complainant Price is the employer who is assigning the work and Local 47 has neither gone to it directly and demanded that the work be assigned to the Sheet Metal Workers' members nor done so through Megatech as its agent. The other parties argue that, on the facts, the Board can and ought to conclude that Local 47, by means of its grievance alleging that Megatech has violated the subcontracting provisions of the Agreement, is using Megatech as its agent to require the complainant to assign the work to members of the Sheet Metal Workers instead of the Steelworkers or in the alternative, that the grievance reveals a jurisdiction dispute between the Sheet Metal Workers and the Steelworkers about which union's members should perform that work. Therefore, the grievance should be seen as the vehicle by which Local 47 is requiring Price to assign the work to members of the Sheet Metal Workers instead of the Steelworkers.

12. Counsel for the Sheet Metal Workers argues that the Board lacks jurisdiction to entertain this complaint because the Sheet Metal Workers are not requiring the complainant to assign the work of manufacturing the diffusers to members of the Sheet Metal Workers rather than to Price's employees who are members of Local 8990. All the Sheet Metal Workers have done, according to counsel, is to raise a grievance against Megatech alleging that its purchase of diffusers not manufactured by sheet metal workers under the Sheet Metal Workers' label for installation by members of the Sheet Metal Workers employed by Megatech on an ICI project in the City of Ottawa violates the Agreement. Counsel contends that the Board's jurisprudence under section 91 makes it clear that a subcontracting grievance against an employer who is not the employer of the employees to whom the work in dispute has been assigned is not a demand for that work within the meaning of section 91 of the Act. In support of that proposition, counsel relies on Napev Construction Ltd., [1980] OLRB Rep. Feb. 247; Harold R. Stark Company Limited, [1982] OLRB Rep. Feb. 222, application for reconsideration dismissed [1982] OLRB Rep. Apr. 576 and Four Seasons Drywall Systems and Acoustics Limited, [1989] OLRB Rep. June 599.

13. The thrust of the argument of Price's counsel is that, in answering the question of whether the Board has jurisdiction under subsection 91(1) of the Act to entertain this complaint, the question to be answered by the Board is whether the Sheet Metal Workers are ordering an agent, Megatech, to refrain from purchasing diffusers manufactured by the complainant because of the affiliation of the complainant's employees with Local 8990 and, in effect, requiring that the manufacturing of the diffusers be done by members of the Sheet Metal Workers. That question should not be answered, according to counsel, in a manner which would permit one trade union to effectively boycott another one in order to limit the manufacturers in a given field to ones which were approved by the first trade union. Section 91 is in the Act to prevent that sort of result. Counsel contends that one of the things which makes the instant case different from others which the Board has dealt with under section 91 is the fact that it involves a demand for the assignment of the work by a construction trade union, through a construction employer against a manufacturer and, to date, the Board has applied subsection 91(1) without having examined the link between the manufacturing industry and the construction industry.

14. The argument of counsel for the Steelworkers runs as follows. The dispute underlining this complaint goes beyond a subcontracting grievance between Local 47 and Megatech because, if Local 47 succeeds in its grievance, a collateral representation issue would be raised. This is because Price's employees would be laid off as a result of its loss of business. That, in turn, could cause those employees to conclude that they should be represented by the Sheet Metal Workers instead of the Steelworkers in order to keep their jobs. That would be a matter of significant labour relations interest to the Steelworkers. If that is not sufficient by itself to provide a sound labour relations reason for hearing the complaint, the consequences of that result for employees' freedom to choose the trade union which will represent them is reason for the Board to entertain the complaint. Although there are no facts of this before the Board, counsel submits that the Sheet Metal Workers have attempted to have this type of manufacturing work done by its members rather than members of the Steelworkers for at least the past five years. Therefore, the Board should not dismiss the complaint on what counsel refers to as a technicality in a preliminary motion. Rather, the Board should hear all of the parties on all of the issues so that it can make a determination which is final and binding on all of the parties. According to counsel, section 91 of the Act is broad enough to encompass the circumstances of this case and, in view of the Sheet Metal Workers' claim that the Steelworkers and Price have no standing in the arbitration of its grievance against Megatech, there is nowhere else where they can go to resolve the dispute if the Board does not read subsection 91(1) of the Act broadly enough to give it jurisdiction to entertain the complaint. In that respect, counsel submits that the Legislature must have intended section 91 to empower the Board to resolve disputes such as this one. Finally, counsel argues that Local 47, by trying to have the complaint dismissed without a hearing on its merits, is seeking to prevent the Steelworkers and Price from making submissions on a matter which has both economic and labour relations consequences for them and is seeking to avoid a full airing of a dispute which has gone on for five years. Therefore, in the interests of good labour relations at least, there should be a full hearing into the complaint. Counsel contends that it is improper for Local 47 to attempt to narrow the issue to a subcontracting dispute when it is much more than that because of its collateral economic and labour relations content.

15. Counsel for Megatech and the Group endorses the arguments of counsel for Price and counsel for the Steelworkers. He agrees particularly with the proposition that this case is entirely different on its facts from the Board decisions on which counsel for the Sheet Metal Workers relies because it deals with a jurisdictional dispute between Local 47 and the Steelworkers about who will manufacture diffusers. In other words, as between Local 47 and the Steelworkers, there is an issue of whose work it is to manufacture diffusers, the members of the Sheet Metal Workers or members of the Steelworkers. Counsel contends that the Legislature put section 91 in the Act in order to deal with that very kind of issue.

16. Counsel for Megatech and the Group argues further that, on the facts before the Board, Megatech can be seen as the agent of the Sheet Metal Workers in that Local 47, by its grievance, is requiring Megatech to purchase diffusers manufactured by members of the Sheet Metal Workers and no one else. According to counsel, that would be the effect of granting Local 47's request for a declaration that Megatech contract for the supply of diffusers only with manufacturers who are in a collective bargaining relationship with the Sheet Metal Workers. That is what makes Local 47's grievance against Megatech a requirement that the complainant assign the work of manufacturing diffusers to members of the Sheet Metal Workers instead of to members of the Steelworkers and counsel contends, that is what this case is all about. Therefore, viewed from that perspective, counsel submits that the Board ought to entertain the complaint and exercise its jurisdiction to direct what action, if any, the complainant, Megatech or any of the trade unions should take or refrain from taking with respect to the assignment of the work of manufacturing diffusers.

17. The Board disagrees with counsel for Price and the interveners that the Sheet Metal Workers have, by their grievance against Megatech, made Megatech their agent within the meaning of subsection 91(1) of the Act to require the complainant to assign to members of the Sheet Metal Workers rather than to members of the Steelworkers the work of manufacturing the diffusers which Megatech is installing on the Greenbelt Centre project in Ottawa. There is no evidence that the Sheet Metal Workers have asked Megatech to request the complainant to assign the work to their members or that Megatech asked Price to do so. Absent such evidence, in order to find, as the complainant and interveners contend, that Megatech is the Sheet Metal Workers' agent for the purpose of subsection 91(1), the l3oard would have to equate Megatech's purchasing of the diffusers from Price with an assignment by Megatech of the work of manufacturing those diffusers to the Steelworkers. That is precisely what the Board in Napev said was an untenable conclusion on the wording of subsection 91(1) and the substantial history of its interpretation. In that case, Napev had let a subcontract for some masonry work to another contractor, Venice. Venice assigned the work to its employees who were represented by one trade union. A second trade union filed a grievance against Napev alleging that it had contravened the subcontract provisions of the collective agreement binding on it and the second union. The first union contended that the grievance was a requirement by the second union that Venice assign the work to its members. The Board, as here, had little evidence on the terms of the subcontract. After an extensive analysis of the history of section 91 [section 81 at the time], its purpose and how its specific wording had been interpreted by the Board, the Napev Board concluded as follows at paragraph 18:

.While the existence of subcontract clauses may be symptomatic of underlying jurisdictional conflict and anxiety, the Board's mandate for intervening in this aspect of labour relations is limited by the specific words employed in section 81(1). On the basis of this wording and for the reasons outlined above, it cannot be said that once a contract is let pursuant to a subcontract clause a trade union is inevitably requiring "an employer" to assign particular work to persons in a particular union. A subcontract clause in a collective agreement is a contractual arrangement between a trade union and general contractor limiting the range of subcontractors the general contractor may utilize in the construction of a project. As the analysis above demonstrates, it cannot be said that the general contractor is the employer for the purposes of section 81(1) nor can it be said, at least in the abstract, that the existence of a subcontract clause constitutes a request to all subcontractors that work be assigned to members of a particular trade union. Subcontract clauses are important elements of trade union security and stability in the construction industry and section 81 may not be able to resolve all aspects of the inconvenience they can cause to particular parties. However, because of the aforementioned paucity of facts established in the instant case, an occasion for considering the precise limitations of section 81(1) in relation to subcontract clauses does not arise.

18. In the last sentence of the quoted extract from the Napev decision, the Board left it open for future cases to define the precise limits of subsection 91(1) relative to subcontract clauses. Those limits were examined again in Stark, supra. That complaint arose out of the following circumstances. Stark, the complainant, had let a subcontract to another contractor, Oshawa Paving. Oshawa Paving assigned the work to Labourers' Local 597. The Plumbers Local 463 claimed that the work was work covered by the Plumbers provincial agreement binding on it and Stark. Local 463 asked Stark to take back the work and do it with its own employees. Stark and Local 463 acknowledged that the work would have been done by members of Local 463 had Stark agreed to take the work back and perform it with its own employees. Stark, however, refused to do so. Local 463 did not ask Oshawa Paving to assign the work to its members and did not ask Stark to request Oshawa Paving to assign the work to members of Local 463. Nor did Stark approach Oshawa Paving to ask it to do so. Local 463 filed a grievance alleging that Stark had violated the subcontracting provisions of the Plumbers' provincial agreement. Stark was also bound to the Labourers' provincial agreement which contained a somewhat similar subcontracting provision. Stark filed a complaint under section 91 of the Act against Local 463. Oshawa Paving and Local 597 intervened. Stark and the interveners contended strongly that Stark, through its choice of Oshawa Paving as subcontractor had "...in fact determined which unions' members would perform the work, and that accordingly, . ..,the Board should not follow the earlier cases but instead take a more 'realistic' view of the matter and treat Stark as the employer for the purposes of section 91(1).". The Board responded at paragraph 13 as follows:

There is no question but that 5tark could have performed the work itself using members of U.A. Local 463. Equally, Stark could have subcontracted the work to a mechanical firm which uses U.A. members to perform this type of work. As it turned out, Stark subcontracted the work to a firm which employed members of the Labourers' union to perform it. In these circumstances, we agree with the contention that Stark, through its choice of subcontractor, or decision to do the work itself, could have determined which unions' members would have been assigned the work in question. This being so, we acknowledge that an argument exists as to why the Board should have the jurisdiction to deal with disputes over work allocation which arise in the context of subcontracting arrangements and the enforcement of subcontracting provisions in collective agreements. Indeed, on the basis of the control exercised by a contractor over a subcontractor, the National Labour Relations Board has assumed the jurisdiction to make jurisdictional determinations in such circumstances. See: General Motors Corporation 99 LRRM 1609. In Ontario, however, 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.

19. At paragraph 19, the Board in Stark addressed the concerns of the complainant Stark and the interveners that to deal with the "root jurisdictional issues" of the complaint under section 124 of the Act and not section 91 would mean that those issues would not likely be fully addressed. The Board expressed an understanding for their concern but concluded that ",...such a concern cannot be a basis for giving section 91(1) a meaning not contemplated by the statute.".

20. In the request for reconsideration, the complainant Stark "...submitted that the purpose of section 91 is to provide a full forum for all parties to resolve competing work claims by competing trade unions.". The Board's response was:

.As the Board noted in the Napev Construction Ltd. case, [1980] OLRB Rep. Feb. 247, the section addresses itself to direct work assignments from employers to persons who are or who could become employees and not contractual relations between general contractors and their subcontractors. The Board's mandate for intervening in this aspect of labour relations is limited by the specific words employed in section 91(1).

21. This panel of the Board reads the Napev and Stark decisions, supra, to stand for the proposition that the Board's mandate under the specific words employed in subsection 91(1) does not capture every attempt to enforce a subcontracting clause in response to the letting of a subcontract, even though the presence of subcontracting clauses in collective agreements may be symptomatic of underlying jurisdictional conflict. The Board herein also understands those decisions to reject implicitly, if not expressly, the proposition that the word "employer" in subsection 91(1) includes the party which lets the subcontract. The Board finds the reasoning in those decisions to be wholly applicable to the circumstances of this complaint. Price and the interveners sought to draw a distinction between the circumstances of this complaint and those in Napev and Stark based on the fact that the complainant is a manufacturer and the work alleged to be in dispute is the work of manufacturing diffusers, whereas Napev and Stark (and the other cases referred to in them) involve the subcontracting of construction work between one contractor employer and another. They did not offer, however, any explanation of why that difference should cause the Board to arrive at a different conclusion on these facts as to its jurisdiction under subsection 91(1), or why the principles of Napev and Stark, supra, should not apply.

22. Certain facts are clear and unmistakable. The Sheet Metal Workers did not ask the complainant to assign the work of manufacturing diffusers to members of the Sheet Metal Workers instead of to members of the Steelworkers. Nor did they ask Megatech to approach the complainant and ask it to assign the work to the Sheet Metal Workers. There is no evidence that Megatech made such an approach after the grievance was filed. Therefore, the only basis for finding that the Sheet Metal Workers have required Price, within the meaning of subsection 91(1), to assign the manufacturing of diffusers to Sheet Metal Workers' members instead of to members of the Steelworkers would be for the Board, because of the Sheet Metal Workers' grievance, to equate Megatech's purchase of the diffusers from Price with an assignment by Megatech of that work to the Steelworkers. The Board in Napev and Stark, supra, concluded that, given the language of subsection 91(1), its Legislative history and the interpretation given to the language during its history, does not accommodate that equation. For the same reasons, this panel of the Board finds that Megatech's purchasing of the diffusers from the complainant combined with Local 47's grievance alleging that Megatech has violated the subcontracting provisions of the Agreement does not amount to Local 47 requiring Price to assign the work of manufacturing the diffusers to members of the Sheet Metal Workers rather than to members of the Steelworkers.

23. With respect to the remaining arguments of the interveners that there are sound labour relations reasons for the Board to entertain the complaint, even if the Board agreed that such reasons were present, the Board has only the powers given to it by the Act. It does not have inherent jurisdiction to deal with labour relations problems in general, including those which arise in the context of jurisdictional conflict between trade unions. Whatever the reason, as both Napev and Stark, supra, note, the Legislature has not given the Board a broad mandate to inquire into all such conflicts. Absent that mandate and having found that the constituent elements of a work assignment dispute within the meaning of subsection 91(1) of the Act have not been established in this complaint, the Board is satisfied that it does not have the jurisdiction to entertain the complaint.

24. For all of the foregoing reasons, the complaint is dismissed.

25. The Board turns again to the application under section 150 of the Act. Since the Board has dismissed the section 91 complaint in File No. 1683-89-JD, the section 150 application is irrelevant in the context of that complaint. Therefore, insofar as it relates to the complaint it is dismissed. As the Board noted at the outset, only the section 91 complaint had been listed for hearing before this panel of the Board. The Board received submissions respecting the section 150 application because the fact that it had been made was raised as a bar to the Board hearing and deciding the issue of whether it had jurisdiction under subsection 91(1) to entertain the complaint. That was the sole purpose of the hearing. In the course of the parties making their submissions on whether the section 150 application had or ought to be determined before the Board could deal with the issue of its subsection 91(1) jurisdiction, all parties included in their submissions reasons why the grievance referral also could or ought not be determined until the Board has disposed of the section 150 application. While the Board has been satisfied to dismiss the application insofar as it relates to the section 91 complaint because the parties had full opportunity to make their submissions on that issue, it is uncertain whether the Board has received their full submissions on the relationship of the section 150 application and the grievance referral in File No. 0957-89-G. Therefore, even though, on the submissions which it has heard, the Board is of the view the section 150 application would be dismissed, out of an abundance of caution, the Board will not dismiss it. Instead, should File No. 0957-89-G be brought on for hearing, the Registrar is directed to list with it the application made under section 150 of the Act in File No. 1682-89-M to be heard by this panel of the Board. In the meantime, File No. 1682-89-M is adjourned sine die and, should it not be brought on for hearing within one year from the date hereof, or not be disposed of otherwise by the Board, it will be deemed to have been dismissed.

26. In summary, File No. 1683-89-JD is dismissed and File No. 1682-89-M is dismissed insofar as it relates to the complaint in File No. 1683-89-JD and is adjourned sine die insofar as it relates to the grievance referred in File No. 0957-89-G.