Millwright District Council of Ontario v. Acco Canadian Material Handling, 1990 CanLII 5700

[1990] OLRB Rep. October 993

2708-89-G; 2709-89-G; 2710-89-G; 2711-89-G; 2712-89-G; 2713-89-G Millwright District Council of Ontario on its own behalf and on behalf of Local 1592, Appli­cant v. Acco Canadian Material Handling, a division of Babcock Industries Canada Inc., Respondent v. Ironworkers District Council of Ontario and Interna­tional Association of Bridge, Structural and Ornamental Ironworkers, Local 700, Intervener #1 v. The Association of Millwrighting Contractors of Ontario Inc., Intervener #2; Millwright District Council of Ontario on its own behalf and on behalf of Local 1592, Applicant v. Allied Conveyors Limited, Respondent v. Iron-workers District Council of Ontario and International Association of Bridge, Structural and Ornamental Ironworkers, Local 700, Intervener #1 v. The Associa­tion of Millwrighting Contractors of Ontario Inc., Intervener #2; Millwright Dis­trict Council of Ontario on its own behalf and on behalf of Local 1592, Applicant v. Adam Clark Limited, Respondent v. Ironworkers District Council of Ontario and International Association of Bridge, Structural and Ornamental Ironworkers, Local 700, Intervener #1 v. The Association of Millwrighting Contractors of Ontario Inc., Intervener #2; Millwright District Council of Ontario on its own behalf and on behalf of Local 1592, Applicant v. Comstock Canada, Respondent v. Ironworkers District Council of Ontario and International Association of Bridge, Structural and Ornamental Ironworkers, Local 700, Intervener #1 v. The Association of Millwrighting Contractors of Ontario Inc., Intervener #2; Mill­wright District Council of Ontario on its own behalf and on behalf of Local 1592, Applicant v. Nicholls-Radtke & Associates Ltd., Respondent v. Ironworkers Dis­trict Council of Ontario and International Association of Bridge, Structural and Ornamental Ironworkers, Local 700, Intervener #1 v. The Association of Mill­wrighting Contractors of Ontario Inc., Intervener #2; Millwright District Council of Ontario on its own behalf and on behalf of Local 1592, Applicant v. State Con­tractors Incorporated, Respondent v. Ironworkers District Council of Ontario and International Association of Bridge, Structural and Ornamental Ironworkers, Local 700, Intervener #1 v. The Association of Millwrighting Contractors of Ontario Inc., Intervener #2

BEFORE: R. A. Furness, Vice-Chair, and Board Members C. A. Ballentine and W. N. Fraser.

APPEARANCES: N. L. Jesin and Paul Fitzgerald for the applicant; Keith Billings and Anthony H. Allen for Acco Canadian Material Handling, a division of Babcock Industries Canada Inc.; Fabic Pozzobon for Allied Conveyors Limited; Ken Niepage for Adam Clark Limited; Henry Franzen for Comstock Canada; Denis Flynn for Nicholls Radtke Ltd.; Al Fabian for State Contractors Incor­porated; S.B.D. Wahl and William Howard for intervener #1; Keith Billings for intervener #2.

DECISION OF THE BOARD; October 11,1990

1. The name of the respondent appearing in Board File No. 2708-89-G is amended to read: "Acco Canadian Material Handling, a division of Babcock Industries Canada Inc."

2. The applicant has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board pursuant to section 124 of the Labour Relations Act for final and binding determination in each of the above-noted matters.

3. Intervener #1 has taken the position that these grievances are in the nature of jurisdic­tional disputes and accordingly these grievances are inarbitrable and/or, without prejudice to that position, in the alternative, these grievances ought to be deferred pending the resolution of the jur­isdictional disputes.

4. Intervener #2 supported the position taken by intervener #1. The position of inter­vener #1 was also supported by five of the six respondents. Allied Conveyors Limited did not make any submissions with respect to the position of intervener #1.

5. The work which gives rise to these referrals under section 124 was performed during the week of January 25, 1990, and was virtually completed during that week. The nature of the work consisted of the handling and installation of conveyors and equipment at the Ford Plant at Talbot­yule, Ontario. In a letter dated January 25, 1990, to each of the respondents the solicitors for the applicant have stated as follows:

Our client grieves that your company is in violation of the Provincial ICI. Collective Agree­ment between the Association of Millwrighting Contractors of Ontario and the Millwright Dis­trict Council of Ontario with respect to work performed at the Ford-Talbotville job site. In par­ticular your company has contravened the union security, sub-contracting, work jurisdiction, wage rates and other related clauses of said collective agreement.

The Millwright District Council of Ontario on behalf of itself and on behalf of its Local 1592 will seek the following relief:

1. A Declaration that [the company] has violated said collective agreement;

2. An Order that [the company] cease and desist from violating said collective

agreement;

3. All damages, including monetary damages, incurred by the Millwright Union and its members as a result of [the company] violation of said collec­tive agreement.

Please be advised that it will be our intention, to refer this matter to the Ontario Labour Rela­tions Board pursuant to Section 124 of the Labour Relations Act.

6. For the most part, the work in question was assigned to composite crews consisting of equal numbers of millwrights and ironworkers. It was the position of the applicant that this assign­ment was without regard to the exact nature of the work to be performed. The respondents are each bound to the provincial collective agreements between The Association of Millwrighting Con­tractors of Ontario Inc. and The Millwright District Council of Ontario, effective from May 15, 1988, to and including April 30, 1990; and also between the Ontario Erectors Association, Incor­porated, and The Ontario Erectors Association and The International Association of Bridge, Structural and Ornamental Ironworkers and The Ironworkers District Council of Ontario com­prised of Local Unions 700, 721, 736, 759, 765 and 786, effective on May 1, 1988, until April 30, 1990.

7. There was no dispute with the position of intervener #2 that at least Acco Canadian Material Handling, a division of Babcock Industries Canada Inc. ("Acco") had assigned the work performed on a fifty-fifty basis under a threat by intervener #1 that if the work performed was assigned otherwise intervener #1 would grieve. When the work was assigned on a fifty-fifty basis the applicant grieved and has claimed the work exclusively. There was also no disagreement that there is a jurisdictional dispute, although no jurisdictional dispute has been filed with the Board or otherwise commenced. While there is no disagreement that there is a jurisdictional dispute each of the entities before the Board is extremely reluctant, to say the least, to file a jurisdictional dispute with the Board. The applicant awaits the filing of a jurisdictional dispute by the respondents or the interveners and vice versa. Understandably, there appears to be a reluctance to file a complaint under section 91 of the Labour Relations Act unless the complainant believes it has a good chance of success.

8. Legislation with respect to complaints about the assignment of work was introduced into the Labour Relations Act in 1960 by 5.0. 1960, c. 54, s. 58. In 1966 the Board was given juris­diction with respect to complaints concerning the assignment of work by 5.0. 1966, c. 76, s. 25. The jurisdiction of the Board to entertain referrals to grievance in the construction industry was conferred as recently as 1975 by The Labour Relations Amendment Act, 1975, 5.0. 1975, c. 76, s. 30. It is against this chronology that the Board considers the arguments which were addressed to it.

9. Intervener #1 argued that the practice of the Board in requiring it or the respondent or intervener #2 to file a complaint under section 91 of the Labour Relations Act was misguided and that where a trade union asserts a violation of its jurisdiction, it ought to be prepared to start legal proceedings before the Board or competent forum in order to enforce its jurisdiction. In the view of intervener #1, a return to the state of the law in 1960 as expressed in the decision of the British Columbia Court of Appeal in Machinists, Fitters and Helpers, Local 3 v. Victoria Machinery Depot Co. Ltd. et al. (1960) 1960 CanLII 290 (BC CA), 22 D.L.R. (2d) 659, was appropriate and desirable. Intervener #1 further argued that the Board has never dealt with legal issues regarding arbitrability. Intervener #1 made extensive reference to Ontario Hydro, [1986] OLRB Rep. Oct. 1386.

10. In Victoria, sup ra, the action arose out of a jurisdictional dispute between two trade unions. The employer employed members of both trade unions and had a collective agreement with each trade union. One of the trade unions commenced an arbitration with the employer. The latter applied the award of the arbitration board which had been in favour of the trade union which commenced the arbitration. The award had the effect of assigning the work which had previously been done by members of the trade union which was not a party to the arbitration to members of the trade union which had been a party to the arbitration. The court held that the trade union which had not been a party to the arbitration was entitled to a declaration that the award of the arbitration board was void. The court observed that both collective agreements had similar "griev­ance" clauses which did not define "grievance". However, in both collective agreements these clauses followed immediately after the jurisdiction clauses. The court concluded that .~ meant that there was in the collective agreement a clear distinction between grievances and jurisdictional disputes and that jurisdictional disputes were not grievances and that if they are to be arbitrated the arbitration must be between the disputing trade unions and not between any trade union and the employer.

11. In Ontario Hydro, supra,the Board entertained a referral to grievance under section 124 of the Act. A trade union (the "first trade union") had contended that certain work had been assigned to a second trade union and that this constituted a breach of the collective agreement between the first trade union and the respondents to the referral under section 124. The respon­dents raised an objection to the jurisdiction of the Board and adopted the position that the griev­ance was in essence a jurisdictional dispute. The respondents contended that the effect of this was to deprive the Board of jurisdiction to hear the grievance under section 124 and that consequently the proceeding under section 124 ought to be terminated. The second trade union, which had appeared and was permitted to make representations, supported the respondents and also argued that the referral under section 124 ought to be adjourned in deference to the dispute resolution mechanism for work assignments between the first trade union and the respondents. In reply, the applicant argued that the Board had jurisdiction under section 124 because the grievance alleged a violation of a collective agreement and that the dispute resolution mechanism contained in the col­lective agreement either did not have to be utilized or had already been exhausted for a variety of reasons. Neither of the trade unions nor the respondents had filed or intended to file a complaint under section 91 of the Act. The Board concluded that, assuming, without finding that such a referral was also in essence a jurisdictional dispute, the jurisdiction of the Board was not ousted under section 124. At pages 1387-8 the Board stated as follows:

12. We do not find support for this proposition in either the purpose or language of section 124. No subjects are specifically exempted from its reach, nor is there any general implication that the ambit of this provision is less than comprehensive. It is true that the existence of section 91 suggests that it is the primary route under the Act for resolving jurisdictional disputes. This does not mean, however, that it is so exclusive that it deprives the Board of jurisdiction to hear a grievance which otherwise meets the requirements of section 124.

13. Certainly the Board has made it clear that it does not regard section 124 as the preferred forum for hearing matters which may touch on jurisdiction disputes, and that it may defer its proceedings under that section to allow jurisdictional disputes to be heard in a more appropriate manner. (See Napev Construction Limited, [1979] OLRB Rep. Sept. 886 and Eaman Riggs Limited, [1978] OLRB Rep. March 228.) Commonly, the Board will be asked to adjourn sec­tion 124 proceedings to allow a party to file a complaint under section 91, or if a section 91 com­plaint had already been filed, to defer a section 124 referral pending the disposition of the sec­tion 91 proceeding. The rationale for this is set out in Napev Construction Limited:

In a section 81 [now 91] complaint all trade unions and employers who may be affected by, or have an interest in the assignment of certain work may appear and par­ticipate in the proceedings, and the Board in reaching a decision is free to consider a broad range of relevant criteria. Further, once the Board makes a direction as to the assignment of work, the direction has the effect of overriding the terms of any collec­tive agreements which do not conform with the direction. In our view, these factors mean that the resolution of disputes related to an assignment of work can be dealt with in a more appropriate manner in a section 81 proceeding than at arbitration.

11. This is quite a different proposition than the assertion that the Board under section 124 has no jurisdiction to hear grievances which relate to work assignments. The Board's confidence in its jurisdiction under section 124 is reflected in its practice of adjourning the arbitration referral, rather than terminating it. It may be that even after a section 91 determination has been made, there will be other issues relating to a grievance which will require resolution, in which case the Board can resume proceedings under section 124.

12. In Re British Columbia Hydro & Power Authority and International Brotherhood of Electrical Workers, Local 258, 1988 CanLII 9303 (BC LA), 32 L.A.C. (3d) 257, the arbitrator remarked that, in more recent times, there were two distinct lines of cases: on in which arbitrators or other labour tribunals have given Victoria full force and effect; the other in which considerable effort has been expended to distinguish the decision, or confine it to its narrowest possible ratio decidendi. The decision in Victoria is, of course, not binding on this Board. We have no disagreement with the interpretation of Victoria as standing for the proposition that rights of non-parties may not be disposed of in an arbitration proceeding in the absence of the non-party. It appears that an arbitration award pur­ported to determine trade jurisdiction under the terms of a collective agreement between an employer and one of two trade unions with whom it had collective agreements. See also Re Coun­cil of Printing Industries of Canada (Southam-Murray) and Teamsters Union, Local 419, 1983 CanLII 4864 (ON LA), 12 L.A.C. (3d) 1. The state of the law in Ontario with respect to who should receive notice of an arbitration between an employer and a trade union has recently been considered by the Court of Appeal in Canadian Union of Public Employees v. Canadian Broadcasting Corporation et al. (File No. 630/88, decision released May 11,1990). In that decision, the Court of Appeal held that natural justice requires that notice of an arbitration between an employer and a trade union be given to any other trade unions who could be affected by the proceedings. Carthy, J. A. speaking for the court stated at page 4:

My thinking starts with a practical, common sense compulsion to put all these parties in one room, before one tribunal, to obtain one ruling on their differences.

The practice of the Board in referrals under section 124 with respect to the parties to such referrals is, of course, subject to the decision of the Court of Appeal.

13. The Board also considered the relationship between the resolution of grievances under a collective agreement in the construction industry and jurisdictional disputes in Copper Cliff Mechanical Contractors Ltd., [1987] OLRB Rep. Nov. 1357. In that decision, the Board was called upon to determine the issue of whether the Board should decide in a proceeding under section 124 the correctness of a work assignment to members of a trade union other than the trade which was one of the parties to the grievance, where it was alleged the assignment had been made pursuant to a collective agreement other than the one under which the grievance arose. The Board held that it would not adjudicate the dispute over the work assignment in the context of a grievance proceed­ing and declined to make the other trade union a party to the grievance proceeding. The Board has long recognized proceedings under sections 91 and 124 of the Act as quite distinct and with differ­ent remedies available. The Board has also consistently given the parties and would be parties clear indications of the consequences of filing or not filing a complaint under section 91 in the con­text of a referral under section 124. In Napev Construction Limited, [1979] OLRB Rep. Sept. 886, the Board, after discussing the appropriateness of requesting relief under section 91 with respect to a jurisdictional dispute stated at page 888:

In this regard we would refer to the following excerpt from the Board's decision in Eaman Riggs Limited, [1978] OLRB Rep. March 228, a case in which the Board concluded it should entertain a section 81 [now 91] complaint rather than defer to arbitration.

33. The approach of the board of arbitration in Re Robertson-Yates Corp. Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 18, (1972 CanLII 2031 (ON LA), 1 L.A.C. (2d) 91) stresses the consensual aspect of jurisdictional claims to work and is essentially a two dimensional view of arbitration in the context of jurisdictional disputes. Such an approach no doubt serves the purposes of arbitration in the realm of collective bar­gaining in the industrial sector. However, the approach of this Board is three dimen­sional in that it first of all determines the merits of a jurisdictional dispute in a com­plaint under section 81 [now 91] of The Labour Relations Act before considering a grievance under a collective agreement under section 112a [now 124] of The Labour Relations Act. The nature of the construction industry with its craft trade unions, con­flicting jurisdictional claims, the sequence of work to be performed on a project and the contractual arrangements between employers requires such a three dimensional approach. The two dimensional view reveals only an untypical cross-section of a situa­tion in industrial relations in the construction industry whereas the three dimensional view permits the two dimensional view to be considered as part of the entire scenario of such industrial relations. This Board possesses far wider remedial powers than a board of arbitration in that, this Board may, in determining a jurisdictional dispute after hearing from all of the interested parties, alter bargaining units defined in a cer­tification or a collective agreement. Reference is made to section 81 [now 91] (15), (16), (17) and (18). In our view this Board's approach to jurisdictional disputes is more in accordance with the realities of the construction industry.

34. Taking these considerations into account, not only are we prepared to grant an adjournment to allow the filing of a section 81 [now 91] complaint, but we are of the view that such a com­plaint should be dealt with prior to the Board proceeding with this section 112a [now 124] refer­ral.

35. Having regard to the above, this matter is adjourned to allow Local ito file, and the Board to consider, a complaint under section 81 [now 911 of the Act. If such a complaint is not filed within eighteen days from the date of this decision, the Board will proceed to consider the mer­its of this section 112a [now 124] referral.

36. In the instant referral, the applicant is not seeking a direction with respect to the assign­ment of certain defined work, it is seeking certain relief with respect to the conduct of the respon­dents. This flows from the conduct of the employer bargaining agencies in entering into what are arguably inconsistent obligations under two collective agreements. There is a mechanism under section 91 for the resolution of such inconsistent obligations with respect to the assignment of work which is open to the parties before the Board. However, none of the parties is compelled to file a complaint under section 91. In our view, the applicant is not required to file and be successful in a complaint under section 91 before it may proceed with its referral under section 124. Depending on the relative pressures which the applicant and intervener #1 may be able to exert on the respon­dents, intervener #1 and the applicant might well have appeared before the Board in each other's shoes in this referral with the tactical consequences which follow. The Board is of the view that the jurisdiction of the Board under section 124 is as set forth in Ontario Hydro, supra. Section 124 has not been made subject to the earlier legislation as stated in section 91. The Legislature has not seen fit to restrict the operation of section 124 as argued by intervener #1. The words "including any question as to whether a matter is arbitrable" in section 124(1) refer to the terms of the collective agreement under which the referral is made. Such words are not to be interpreted as an aide to tac­tical considerations in a perceived jurisdictional dispute.

37. The usual practice of the Board is to permit the filing of a complaint under section 91 of the Act and to postpone the application under section 124 until there has been a resolution of the complaint under section 91. However, where a complaint is not filed under section 91, the practice of the Board is to entertain the referral under section 124. On July 10, 1990, in Board File 0970-90-JD, intervener #1 filed a complaint under section 91 with respect to the work. A pre-hearing conference was scheduled for September 19, 1990, and has been adjourned. The Board will pro­ceed, initially, to entertain the complaint under section 91. Subsequently, the Board will entertain the referral under section 124 with all of the would-be parties being given an initial opportunity to make representations on the effect of the decision of the Ontario Court of Appeal in Canadian Union of Public Employees v. Canadian Broadcasting Corporation et al, supra, on the referral under section 124.